Citation Nr: 1804193 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 15-19 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an eye disability, to include as secondary to the service-connected diabetes mellitus, type II. REPRESENTATION Veteran represented by: David F. Bander, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Timbers, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The Veteran served as a member of the United States Navy, with active duty service from July 1964 through July 1967. This appeal comes to the Board of Veterans' Appeals ("Board") from an October 2011 rating decision by the Department of Veterans Affairs ("VA") Regional Office ("RO") in St. Petersburg, Florida (hereinafter Agency of Original Jurisdiction ("AOJ")). In August 2016, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been reviewed and associated with the veteran's claims file. The Veteran's claim has previously been before the Board. In March 2017, the Board remanded the Veteran's appeal for entitlement to service connection for an eye disability to the AOJ for further development. Specifically, the Board directed the AOJ to obtain a medical opinion which addressed whether a nexus existed between the Veteran's diagnosed eye disability and his service-connected diabetes mellitus, type II. A review of the record indicates that an addendum medical opinion was obtained in July 2017. However, the Board finds that this medical opinion is inadequate, thus requiring another remand. See Stegall v. West, 11 Vet. App. 268 (1998). In March 2017, the Board additionally remanded the Veteran's claim for entitlement to an increased disability rating, in excess of 30 percent, for the service-connected post-traumatic stress disorder. The Board directed the AOJ to issue a statement of the case ("SOC.") Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). In September 2017, the AOJ issued an SOC, which was mailed to the Veteran's address of record. However, as the Veteran has not perfected his appeal with regard to this claim, the Board does not have jurisdiction over this claim. See 38 C.F.R. §§ 20.202, 20.302. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additionally delay, the Board has determined that there has not been substantial compliance with the March 2017 remand directives. See Stegall, 11 Vet. App. 268 at 271. As such, an additional remand is required before the Board may make a determination on the merits of the Veteran's appeal. Specifically, in March 2017, the Board directed the AOJ to obtain an addendum medical opinion which addressed whether there was a nexus between the Veteran's eye disability and any service-connected disability, to include diabetes mellitus, type II. An addendum medical opinion was obtained, dated in July 2017; however, this medical opinion fails to adequately respond to the Board's March 2017 directives. Namely, the July 2017 examiner stated that macular degeneration is not caused by or aggravated by the Veteran's diabetes. Other than this single diagnosis, of macular degeneration, the examiner did not discuss or explain any other diagnosed eye disability, and whether any nexus existed. In reviewing the Veteran's medical records, the Board observes that the Veteran has current diagnosed disabilities of bilateral refractive error, bilateral cataracts, and bilateral itchy eyes. Despite clear evidence of these diagnosed disabilities, the July 2017 examiner made no reference or statement concerning their nexus to the Veteran's diabetes mellitus. As such, the Board finds that the July 2017 addendum medical opinion is inadequate and a remand is required in order to obtain a new medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that if VA provides a Veteran with an examination in a service connection claim, the examination must be adequate). The Board observes that the Veteran has a current diagnosis of bilateral refractive error. For purposes of entitlement to VA benefits, the law provides that refractive errors of the eyes are congenital and/or developmental defects, and are not considered diseases or injuries for VA compensation purposes. See VAOPGCPREC 82-90 (July 18, 1990), 55 Fed. Reg. 45711 [a reissue of General Counsel Opinion 01-85 (March 5, 1985)]; see also 38 C.F.R. §§ 3.303(c), 4.9; see Beno v. Principi, 3 Vet. App. 439, 441(1992). Refractive errors include diagnoses of astigmatism, myopia, hyperopia, and presbyopia. See M21-1, III.iv.4.B.10.d. However, service connection may be granted for disability which is shown to have resulted from a defect (such as refractive error) which was subject to a superimposed disease or injury during service. See VAOPGCPREC 82-90; see also 38 U.S.C. §§ 1110, 1111, 132, 38 C.F.R. § 3.303(c). If the defect was aggravated such that a superimposed disease or injury occurred during service, service connection may be established for the resultant disability. VAOPGCPREC 82-90. In this regard, the Board requests that the examiner provide an opinion as to whether any such superimposed disability exists. Finally, as the Veteran's claim is being remanded, the Board requests that the AOJ contact the Veteran to ensure all available medical records have been obtained and associated with the claims file. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C. §5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Therefore, the AOJ should obtain and associate with the claims file the any outstanding VA medical records, assuming they are adequately identified by the Veteran after any necessary clarification. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should then contact the Veteran, and, with his assistance, identify any additional outstanding records of pertinent medical treatment from VA or private health care providers that have treated him for his eye disabilities. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If the AOJ's attempts to obtain any outstanding records results in a finding that such records are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After any additional records are associated with the claims file, the AOJ should schedule the Veteran for a VA examination to assess the nature and etiology of any eye disabilities. The electronic claims file must be provided to and reviewed by the examiner in conjunction with the examination. All necessary diagnostic testing and evaluation should be performed, and all findings set forth in detail. Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to the following questions: (a) First, the examiner is asked to identify all eye disabilities present during the pendency of this appeal, to include cataracts, refractive error, and diabetic retinopathy (if present). (b) For each diagnosed eye disability, the examiner should state whether it is at least as likely as not (i.e. a 50 percent probability or greater) that any diagnosed disability initially manifested during service or is otherwise etiologically related to active service. (c) For each diagnosed eye disability, the examiner should state whether it is at least as likely as not (i.e. a 50 percent probability or greater) that any diagnosed disability was caused by or aggravated by a service-connected disability, to include diabetes mellitus, type II. Governing regulations provide that service connection is permissible on a secondary basis if a claimed disability is proximately due, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310. The term aggravation is defined as a chronic an permanent worsening of the underlying condition beyond its natural progression versus just a temporary or intermittent flare-up of symptoms. If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation (d) For the refractive error disability, the examiner provide an opinion as to whether this condition is considered a congenital defect or a congenital disease? For VA purposes, a "defect" is defined as a structural or inherent abnormality or condition which is more or less stationary in nature, and is generally incapable of improvement or deterioration. In contrast, a "disease" is capable of improvement or deterioration. In determining whether the Veteran's refractive error is a defect or a disease, the examiner must specifically address any lay reports from the Veteran as to worsening eye sight and/or blurred vision. (e) If the Veteran's refractive error is a congenital defect, was it subject to, or aggravated by, a superimposed disease or injury during service which resulted in additional disability? Please identify the additional disability. (f) In contrast, if the Veteran's refractive error is a congenital disease, please state whether the disease clearly and unmistakably both: (i) preexisted the Veteran's entry into active service, and (ii) was not aggravated, beyond the normal progress of the disorder, during or as a result of active service (i.e., that it clearly and unmistakably did not increase or that any increase was clearly and unmistakably due to the natural progress of the disease). The examiner is instructed that clearly and unmistakably requires that the evidence be obvious, manifest, and undebatable. Cotant v. Principi, 17 Vet. App. 116 (2003) The examiner is asked to provide a thorough explanation of the rationale underlying any and all opinions or conclusions expressed. 3. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claim on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case ("SSOC") and allow the Veteran and his representative an opportunity to respond. The appellant 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 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. §§ 5109B, 7112 (West 2012). _________________________________________________ ROBERT C. SCHARNBERGER 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).