Citation Nr: 1753698 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 07-22 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a bilateral eye condition. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1970 to January 1973. This appeal originally came before the Board of Veterans' Appeals (Board) from a November 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran's claim in June 2008 for further development, in May 2009 for the RO to issue a supplemental statement of the case, and in July 2010 to schedule the Veteran for a hearing before a Veterans Law Judge (VLJ). In December 2010, the Veteran testified at a Board videoconference hearing before a VLJ. A transcript of the proceeding is contained in the claims file. The Board remanded the claim in February 2011 for further development. In August 2012, the Board granted a motion for a new hearing, and in September 2012, the Board remanded the claim to schedule the requested hearing. In December 2012, the Veteran testified before the same VLJ at a Board videoconference hearing, and the claims file includes a transcript of the hearing. The Board remanded the claim in February 2013 to obtain records from the Social Security Administration. Of note, the Board denied the Veteran's claim in a June 2013 decision. The Veteran filed a motion for reconsideration of this decision, which the Board denied in October 2013. The Veteran subsequently appealed the Board's June 2013 decision to the Court of Appeals for Veterans Claims (Court). In an April 2015 memorandum decision, the Court vacated the Board's June 2013 decision and remanded the matter for adjudication consistent with its memorandum decision. In February 2016, the Board remanded the claim for additional development. As set forth in November 2015 and June 2017 letters from VA, the VLJ who conducted the above-noted videoconference hearings is no longer employed by the Board. In general, the VLJ who conducts a hearing on appeal must participate in any decision made on that appeal. See 38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2017). However, when a VLJ becomes unavailable to participate in the disposition of a proceeding, VA may assign the proceeding to another VLJ. See 38 U.S.C. § 7102(a); 38 C.F.R. § 19.3(b). The letters explained that the Veteran had a right to request another Board hearing and that if the Veteran did not respond within 30 days, the Board would assume that he did not want another hearing and would proceed accordingly. To date, the Veteran has not responded to these letters, and therefore, a new hearing is not required in this case. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that he is entitled to service connection for a bilateral eye condition, as he was hit in the face by a gas heater explosion in October 1970 and reportedly has had vision changes ever since, particularly, double vision. Based on his July 2007 VA Form 9, December 2010 and December 2012 hearing testimony, and a May 2013 statement, the Veteran maintains that following the October 1970 explosion and facial injury, he was hospitalized for several days and began to experience migraine headaches, double and quadruple vision, and blurry vision. According to the Veteran, military doctors related his irregular vision and headaches to the October 1970 explosion and facial injury. He also reported that he underwent eye surgery at Vanderbilt University in 1973 to relieve his headaches, which improved his headaches, but did not improve his vision. As noted above, the Court issued a memorandum decision in April 2015 that vacated the Board's June 2013 decision and remanded the matter to the Board for readjudication. The Court determined that the Board provided an inadequate statement of reasons or bases for its conclusion that the presumption of soundness did not apply to the Veteran's diplopia. The Court also found that the November 2011 VA examination report and April 2012 addendum medical opinions contained conflicting information, were inadequate, and did not substantially comply with the Board's February 2011 remand order. Pursuant to the Court's memorandum decision, the Board remanded the Veteran's claim in February 2016, in pertinent part, to schedule the Veteran for a new VA eye examination. Of note, the examiner was asked to provide a current diagnosis for any current eye disorders and to address whether any previous eye disorders resolved. For each diagnosed condition, the examiner was also asked to offer an opinion as to whether the condition was static or progressive in nature, whether it existed prior to service, and if so, whether it worsened during service. Although the Veteran was afforded a VA examination in July 2016, an additional medical opinion is needed before the Board can adjudicate his claim. First, while the examination report lists diagnoses of diplopia secondary to constant esotropia and mild senile cataract, it does not address the refractive errors of hyperopia and presbyopia that were identified during the August 2008 VA eye examination. Additionally, the July 2016 examiner indicated both that the Veteran's diplopia was possibly exacerbated by facial trauma in service, and that it did not worsen during service. In light of the history noted above, an additional medical opinion that clarifies the Veteran's diagnoses and that addresses the etiology of his claimed disability is warranted. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the Court's memorandum decision, the examiner should address the "reduced visual acuity" following the October 1970 explosion that was noted in the November 2011 examination report, in addition to the Veteran's reported symptomatology. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. Follow the procedures for obtaining the records as set forth by 38 C.F.R. § 3.159(c), and obtain new VA Form 21-4142 releases if necessary. If VA attempts to obtain any outstanding records that are unavailable, the Veteran and his representative should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Thereafter, obtain a supplemental medical opinion from the examiner who conducted the July 2016 VA eye conditions examination. If this examiner is unavailable, obtain an opinion from an optometrist or ophthalmologist regarding the Veteran's claimed bilateral eye disability. The claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. If, and only if, determined necessary by the examiner, the Veteran should be scheduled for another VA examination. The examiner should respond to the following inquiries: a) The examiner should clarify whether the Veteran has current diagnoses of hyperopia and presbyopia. If there are no current diagnoses of hyperopia and presbyopia, the examiner must reconcile this finding with the August 2008 VA examination report. If these conditions resolved, the examiner should specifically indicate so, and, if possible, indicate when they resolved. b) For any congenital or developmental defects that have existed during the course of the appeal, to include diplopia secondary to constant esotropia and any refractive errors, the examiner should opine as to whether the Veteran now has any additional disability as a result of the congenital or developmental defect being subject to, or aggravated by, a superimposed in-service disease or injury. In rendering such opinion, the examiner should specifically consider and address STRs documenting diplopia, and the "reduced visual acuity" following the October 1970 explosion and facial injury that was noted in the November 2011 VA examination report. The examiner should also consider and address the Veteran's lay contentions regarding symptomatology following the October 1970 explosion, which are noted above and documented in his July 2007 VA Form 9, December 2010 and December 2012 hearing testimony, and May 2013 statement. A complete rationale should be provided for any opinion expressed. If the examiner is unable to reach an opinion without resorting to speculation, he or she should explain the reasons for such inability and comment on whether any further tests, evidence, or information would be useful in rendering an opinion. 3. After completing the above development and any other action deemed necessary, re-adjudicate the claim. If the benefit sought is not granted in full, furnish the Veteran and his representative an SSOC after affording the requisite time period to respond. The matter should then be returned to the Board for appropriate appellate review, if otherwise in order. 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 any claim that is 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. §§ 5109B, 7112. _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).