Citation Nr: 1751791 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 08-30 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to an initial compensable rating for service-connected right eye refractive error. REPRESENTATION Veteran represented by: John Berry, Attorney ATTORNEY FOR THE BOARD P.S. McLeod, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1982 to July 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The claim was remanded by the Board in May 2010 for additional development. In June 2012, the Board denied entitlement to an initial compensable rating for a service-connected right eye refractive error. The Veteran appealed the Board's June 2012 denial of the claim for increased rating to the United States Court of Appeals for Veterans Claims (CAVC). In an October 2013 Memorandum Decision, CAVC vacated that part of the June 2012 Board decision denying a compensable rating for a right eye condition and remanded the claim for further proceedings consistent with the Memorandum Decision. The claim was remanded by the Board in July 2014 for additional development. The appeal was returned to the Board for appellate disposition, and in June 2015, the Board denied the Veteran's claim. The Veteran appealed the Board's June 2015 denial of the claim for increased rating to CAVC. In a June 2016 order CAVC granted a Joint Motion for Remand (JMR) filed by the representatives for both parties, vacating the Board's decision regarding these issues, and remanding the claims to the Board for further proceedings consistent with the JMR. The claim was again remanded by the Board in December 2016 for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Previously the Board had remanded this claim in May 2010 with the specific remand directive that the Veteran be afforded a VA eye examination by a "physician." The Board then remanded the claim again in July 2014 pursuant to a CAVC order which ruled, in part, that the use of an optometrist in the previous VA examination was not substantially compliant with the Board's directive requesting a physician. In the July 2014 remand directives the Board specifically requested that a VA eye examination be provided by an "ophthalmologist." The subsequent development provides that the RO/AMC failed to adequately notify the Veteran of the scheduled examination and ultimately CAVC granted a JMR. In December 2016 the Board again remanded the claim for an examination and the RO/AMC was instructed to provide the Veteran with a VA eye examination. The Board's specific remand directives indicated that the Veteran's examination should be conducted by "an appropriate examiner." The examination was provided in August 2017 but again was administered by an optometrist. The Board finds that further remand is necessary to fully adjudicate the Veteran's claim. The Veteran has yet to undergo a VA examination that is administered by the proper medical professional, an ophthalmologist. Despite prior remands identifying a physician and ophthalmologist as being necessary the Veteran has had VA examinations administered by an optometrist. The most recent Board remand, in December 2016, directed the RO/AMC to provide "an appropriate examiner." Given that the previous, July 2014, remand specifically identified that an ophthalmologist was to administer the examination the Board will construe, in the context of this claim, the term "an appropriate examiner" to mean an ophthalmologist. Therefore, the Board finds that there has not been substantial compliance with the former remand and a new VA examination must be provided. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA eye examination with an ophthalmologist, to assess the current severity of his service-connected right eye refractive error. The examiner must review the claims file and all relevant electronic medical records. All tests and studies deemed necessary should be accomplished, and all special tests and clinical findings must be reported. The examiner must specifically indicate the degree of visual impairment in the Veteran's right eye and discuss whether the Veteran's right eye disability results in incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12 months. All findings should be reported in detail, and the examiner should provide adequate rational for any opinions given. 2. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review. The appellant 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 of Veterans' Appeals 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 2014). _________________________________________________ M.H. Hawley Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).