Citation Nr: 1752998 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-24 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for an eye disorder, not including left upper eyelid ptosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and D.O. ATTORNEY FOR THE BOARD S. Krunic, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 2007 to June 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction has subsequently been transferred to the RO in Huntington, West Virginia. In May 2016, a hearing was held before the undersigned Veterans Law Judge (VLJ) at the Central Office in Washington, D.C. A transcript of the hearing is of record. In an August 2016 decision, the Board granted service connection for vertigo and remanded the issue of entitlement to service connection for an eye disorder. Subsequently, in a December 2016 rating decision, the Appeals Management Center granted service connection for left upper eyelid ptosis and assigned an evaluation of 30 percent effective from November 16, 2009. The case has since been returned to the Board for appellate review regarding entitlement to service connection for any additional eye disorders. The Board notes that the Veteran's representative submitted a brief in September 2017 in which the issue of entitlement to service connection for residuals of traumatic brain injury (TBI) was raised. In so doing, the representative acknowledged that the Veteran was granted service connection for left upper eyelid ptosis due to facial paralysis from an in-service TBI; however, the representative stated that the Veteran is not currently service-connected for a TBI. The Veteran and her representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2016). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Pursuant to the August 2016 remand, the Veteran was afforded a VA examination in November 2016 at which time she was assessed with esotropia (crossed eyes) and ptosis of the left upper eyelid (drooping eyelid). As previously discussed, the Veteran was granted service connection for ptosis of the left upper eyelid subsequent to the VA examination. However, the VA examiner determined that the Veteran's current esotropia clearly and unmistakably preexisted her entry into military service and was not permanently aggravated during service; the examiner indicated that his opinion was based on a claims file review as well as the Veteran's reported history during the examination. However, in formulating his opinion, the examiner failed to indicate the clear and unmistakable evidence supporting his conclusion that the preexisting esotropia was not aggravated by service as instructed in the August 2016 remand. Notably, the examiner failed to address any of the pertinent evidence listed for his consideration in the remand. Therefore, the opinion is inadequate because it does not contain a complete rationale. In addition, the examination report reflects that the Veteran currently has diplopia (double vision); however, the VA examiner did not include diplopia among the Veteran's currently diagnosed eye disorders. Moreover, the examiner stated that the Veteran's esotropia from an early age is the cause of her current intermittent double vision because she was unable to fully coordinate her eyes. However, the examiner did not opine whether the diplopia, which was noted on the Veteran's July 2007 enlistment examination report, was aggravated by her service. Finally, the Board notes that the Veteran reported that she occasionally experiences blurriness yet the examiner did not address the etiology of the symptom; thus, it is unclear whether blurriness is a symptom of her esotropia, diplopia, or any other eye disorder. Again, it appears that the examiner did not refer to relevant service treatment records which documents that the Veteran had reported blurriness following a head injury during service. In light of the foregoing, the Board finds that a clarifying opinion is required that complies with the previous remand. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. The AOJ should refer the Veteran's claims file to the November 2016 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's diagnosed esotropia as well as her diplopia and blurriness. If the examiner deems an examination necessary, one must be provided. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, hearing testimony, and statements. It should be noted that lay persons, including the Veteran, are competent to attest to factual matters of which they had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the individual, the examiner should provide a fully reasoned explanation. The examiner should clarify whether the Veteran is currently diagnosed as having diplopia. See November 2016 VA examination report (III)(6). The examiner should also indicate whether the Veteran's reported blurriness is attributable to her esotropia, diplopia, or any other eye disorder present. For each eye disorder identified, other than left eyelid ptosis, the examiner should address whether it clearly and unmistakably preexisted the Veteran's military service. In responding to this question, the examiner is advised that "clear and unmistakable" means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood. If the VA examiner determines that the disorder pre-existed the Veteran's military service, he should provide an opinion as to whether there is clear and unmistakable evidence that any such disorder was NOT aggravated to a permanent degree during her service beyond that which would be due to the natural progression of the disability. If it is found that there is clear and unmistakable evidence that the Veteran's disorder existed prior to service and that there is clear and unmistakable evidence that the condition was not aggravated by service, the examiner should clearly indicate the clear and unmistakable evidence supporting his or her conclusion. If the examiner determines that each identified eye disorder did not clearly and unmistakably preexist military service, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's eye disorder is causally or etiologically related to her military service, to include any symptomatology therein such as blurriness. In rendering these opinions, the examiner should specifically consider the Veteran's service treatment records, to include a July 2007 enlistment examination noting that the Veteran underwent surgery prior to enlistment for esotropia and diplopia in 2005; service treatment records from January 2008 showing the Veteran complained of double vision after she was hit on the head and lost consciousness; a February 2008 service treatment record showing the Veteran complained of intermittent diplopia and what was noted to be strabismus; an April 2008 service treatment record showing intermittent diplopia and facial weakness; a September 2008 service treatment record showing a diagnosis of blurry, double vision during a run; the September 2008 records showing vision changes in the left eye and blurred vision in the right eye; a June 2009 service treatment record showing a diagnosis of diplopia and post-concussion syndrome; a June 2009 eye examination showing strabismus non paralytic esotropia alternating. The examiner should also consider the VA examinations of record, to include an April 2012 Traumatic Brain Injury DBQ reflecting impaired and distorted double vision attributable to a traumatic brain injury, an April 2012 Ear Conditions DBQ, indicating that double vision is at least as likely as not due to the Veteran's traumatic brain injury, and the April 2012 Eye Conditions DBQ. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. After completing the above actions and any other development as necessary, the case should be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought are not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters 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 2014). _________________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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) (2016).