Citation Nr: 1338830 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 08-01 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for left eye disability. REPRESENTATION The Veteran is represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to September 1980, with periods of inactive duty for training including from August 12 to August 29, 1999. This case comes to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Seattle, Washington (RO). This claim, captioned as one to reopen, was previously before the Board in May 2013. The Board reopened and remanded the Veteran's claim for additional development. Following an August 2013 supplemental statement of the case, the claim, captioned as one of entitlement to service connection, was remitted to the Board for further appellate review. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND In May 2013, the Board determined that an August 2008 VA examination was inadequate because the examiner opined both that the left eye defect found did not correspond to the type of defects that might be associated with trauma, and that it would be "atypical" for the left eye defect to result from trauma and that the defect "usually" existed along with observable pathology of the retina, which was not present. In essence, this opinion excluded the possibility that the Veteran's left eye defect resulted from trauma, but also suggested the possibility that it could have resulted from trauma and, thus, was internally contradictory. Further, the examiner's use of the words "atypical" and "usually" in the rendered opinion was too speculative to be probative. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that medical opinions couched in terms of "may" or "possible" are too speculative to established service connection). Additionally, the Board determined that the August 2008 VA examination was inadequate because the examiner failed to consider the evidence demonstrating diagnoses of "unspecified cataract," benign neoplasm of the choroid, and unspecified preglaucoma. Moreover, the examiner did not provide an explanation as to how there could be the verified presence of a field defect, but that rendering a diagnosis was not possible beyond noting the lack of observable pathology. Without the articulated reasoning, the Board was unable to determine whether a medical expert has applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Based on the above, the Board remanded the Veteran's claim in order to provide him with another VA examination, which occurred in August 2013. The August 2013 VA examiner indicated that the Veteran had not been previously diagnosed with an eye condition (other than congenital or developmental errors of refraction). Further, the Veteran reported that the onset of his symptoms occurred in 1999 as a result of a physical altercation with a woman. The examiner observed that the Veteran received medical treatment as a result of this incident for an abrasion of the cheeks, but that there was "no evidence of eye involvement." After clinical evaluation, the examiner opined that "there was no diagnosis because there is no pathology to render a diagnosis." The examiner then stated that the Veteran has excellent corrected vision, and that there was "some peripheral vision loss" from 2003 to 2006, which was minor and no pathology was noted to account for it. Further, the examiner opined that the Veteran's current visual fields showed some peripheral contracture, but were symmetrical and well above the legal limitation for the field extent required to obtain a driver's license without further explanation. First, as discussed in the previous remand, the evidence of record included previously diagnosis of "unspecified cataract," benign neoplasm of the choroid, and unspecified preglaucoma, among others. Despite the presence of this evidence, the August 2013 VA examiner indicated that the Veteran had not been previously diagnosed with an eye disability beyond congenital or development errors. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). Second, the service records pertaining to the physical altercation that the Veteran claims caused current left eye disability indicated that he endorsed difficulty focusing with his left eye. The Veteran subsequently asserted that he experienced symptoms associated with his left eye as a result of the altercation. However, as discussed above, the August 2013 VA examiner found that there was no evidence of eye involvement. See Dalton v. Nicholson, 21 Vet. App. 23 (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of inservice injury but relied on the service treatment records to provide a negative opinion). Third, the August 2013 VA examiner stated that clinical testing revealed the presence of a symmetrical peripheral contracture in the Veteran's visual fields, but that there was no pathology present to render a diagnosis. The examiner did not provide an explanation as to how peripheral contracture was not a diagnosis in and of itself or how peripheral contractures were not pathology sufficient to support a diagnosis. Further, the examiner did not provide an opinion as to whether it was at least as likely as not (50 percent probability or more) that the Veteran's peripheral contracture was due the inservice physical altercation or was otherwise etiologically related to his military service. See Nieves-Rodriguez, 22 Vet. App. at 304. Thus, the Board finds that the August 2013 VA examination is not adequate for purposes of adjudicating the Veteran's claim of entitlement to service connection for left eye disability. Consequently, a remand is required in order to obtain a supplemental opinion from the August 2013 VA examiner. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided). Accordingly, the case is REMANDED for the following action: 1. The RO should obtain a supplemental opinion from the August 2013 VA examiner. The claims folder and a copy of this remand must be made available to the examiner for review. The examiner must review all the evidence of record, including the Veteran's service treatment and personnel records. After a review of the relevant evidence of record, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current left eye disability or any left eye disability that existed at any point during the claims period since December 2005, is related to an injury sustained during the August 25, 1999 physical altercation during a period of inactive duty for training. In so doing, the examiner must (a) address the previous left eye diagnoses of record, including, but not limited to unspecified cataract, benign neoplasm of the choroid, and unspecified preglaucoma; (b) address the Veteran's report of left eye symptoms at the time of and after the inservice altercation; and (c) provide an explanation as to the nature and etiology of the Veteran's peripheral contractures. In providing the opinion, the examiner is advised that the evidentiary requirement that there be a current diagnosis of left eye disability is met if even if the disability resolves during the pendency of the appeal. If such is the case, the examiner should provide the above-requested etiological opinion for any left eye disability present at the time the Veteran submitted his claim or during the pendency of his appeal even if it subsequently resolved. The examiner is also advised that the phrase at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship, less likely weighs against the claim. A complete rationale for any opinion expressed must be included in the examination report. 2. Once the above actions have been completed, the RO must re-adjudicate the Veteran's claim on appeal, taking into consideration any newly acquired evidence. If the benefit sought remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).