Citation Nr: 1807101 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 11-05 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for an eye disorder, to include open angle glaucoma. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD T. Hanson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from December 1998 to November 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines, which in pertinent part denied service connection for open angle glaucoma. The Board remanded the case in December 2013 and March 2017 for further evidentiary development. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In addition to the VBMS claims file, there is a Virtual VA paperless file associated with the Veteran's case. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). The Veteran contends that he has an eye disorder, claimed as blurry vision, which is the result of service. See January 2009 claim. By way of background, a December 1998 in-processing examination indicated that the Veteran had compound myopic astigmatism and "no ocular path each eye." In a November 2007 service treatment record, the Veteran was seen for irritation under both eyes with a possible scratch; he was diagnosed with petechial. A later note indicated visual acuity of 20/30 in each eye, and increased intraocular pressure with a "concern for ocular hypertension." During a February 2009 VA general medical examination, the Veteran reported experiencing blurred vision since 2004-2005. In a February 2009 VA examination, the examiner diagnosed the Veteran with compound astigmatism and open angle glaucoma. A December 2010 ophthalmology outpatient note diagnosed the Veteran with refractive error and "cup to disc ration C/R asymmetry, glaucoma suspect" In December 2013, the Board remanded the Veteran's case and instructed the AOJ to obtain outstanding VA medical records, obtain a release of any relevant private medical records, and afford the Veteran a VA examination to determine the relationship, if any, between his open angle glaucoma and military service. Following the Board's December 2013 remand, the AOJ obtained outstanding VA medical records and requested the Veteran authorize the release of any private medical records. The Veteran did not identify any records to obtain. Additionally, the Veteran was afforded a VA examination, in June 2016, at which time the examiner noted diagnoses of glaucoma suspect, right eye and blurring of vision secondary to astigmatism, both eyes. The examiner stated that there was no diagnosis of open angle glaucoma, explaining that "only borderline cupping on the right optic nerve would suspect a possible glaucomatous process." The examiner further reported that other tests, like perimetry and intraocular pressure, did not lead to the diagnosis. In March 2017, the Board again remanded the Veteran's case for further development. The Board also recharacterized the Veteran's claim to entitlement to service connection for an eye disorder, to include open angle glaucoma, based on the statements of the Veteran and the medical evidence of record. Further, the Board remanded the case based on the opinion provided from the June 2016 examination; the Board determined that the examiner did not reconcile his finding that the Veteran did not have open angle glaucoma with the February 2009 VA examination which noted such a diagnosis. The Board also determined that the examiner did not offer a responsive opinion regarding the condition, and the examiner did not address the relationship of the Veteran's astigmatism condition to service. Per the Board's March 2017 remand, the Board requested that the Veteran's representative be given an opportunity to review the record and provide argument regarding the appeal in an appropriate format such as a VA Form 646. The Board also remanded the case to obtain VA treatment records and associate with the record any outstanding treatment records identified by the Veteran with appropriate authorization. Further, the Board requested that the Veteran's file be forwarded to an appropriate clinician for an opinion regarding the nature and relationship to service of any diagnosed eye disorder, to include open angle glaucoma and compound astigmatism as well as a reconciling opinion as to the diagnoses of record. The examiner was also asked to state whether it was at least as likely as not that the diagnosed disorder initially manifested during service or was otherwise etiologically related to service and whether any increase in the Veteran's refractive error of the eye was due to a superimposed disease or injury. In May 2017, the AOJ sent the Veteran a duty to assist letter to give him another opportunity to submit an authorization to obtain medical records from his physicians. No reply was received. Additionally, the AOJ attempted to retrieve outstanding VA treatment records; it was determined that the records at the Manila VA do not exist. All available VA records have been located and none have been added since the last association of records to the Veteran's file. Lastly, according to the latest SSOC, the Veteran was scheduled for a VA examination and medical opinion. The Veteran failed to report to his August 2017 VA examination, and VA was notified of same. At the outset, the Board notes that there has not been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). First, the Board recognizes that the Veteran's representative was not given an opportunity to review the claims file and present a written statement regarding the appeal in an appropriate format such as a VA Form 646 as the opportunity afforded and any reply received is not of record. Secondly, it is unclear whether the Veteran was properly notified of the VA examination. The record does not contain correspondence apprising the Veteran of an examination date and time. Further, the record contains correspondence addressed from the RO in August 2017, close in time to which the Veteran was reportedly scheduled for his examination, to the Veteran that was marked "return to sender." See August 2017 returned mail. Resolving all doubt in favor of the Veteran, the Board finds it is possible that the examination notification, if sent, was mailed to an incorrect address. Therefore, the Board finds that good cause has been shown for failure to report to the VA examination. 38 U.S.C. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). On remand, the Veteran should be afforded a VA medical examination, with notices to his current, correct address, to obtain the medical information needed to resolve the claim. 38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran is hereby notified that if he fails to appear for the examination without good cause, his claim will be decided without the evidence that would have been generated by the examination, which could result in the denial of his claim. 38 C.F.R. § 3.655 (2017). Accordingly, the case is REMANDED for the following action: 1. Take appropriate action to contact the Veteran in order to obtain his correct address and ensure that the information is updated in VA's official records. The Veteran should also be informed that it is ultimately his obligation to inform VA of any change of address. Ensure that the examination notification is sent to the correct address. 2. Thereafter, forward the Veteran's claims file to an appropriate clinician for an opinion regarding the nature and relationship to service of any diagnosed eye disorder. If the clinician feels an examination is warranted, schedule the Veteran for a new examination. The report must reflect that review of the electronic claims folder occurred. The clinician is asked to provide an opinion, with supporting rationale, as to the following: a) Identify any diagnosed eye disorders present in the record from 2008, including open angle glaucoma and compound astigmatism. In so opining, the clinician should reconcile his or her diagnoses with the diagnoses of record. Additionally, if the clinician finds that any of the above diagnoses have not been present during the appeal period, a full explanation should be provided. b) For each diagnosed eye disorder, the clinician should state whether it is at least as likely as not (50 percent or greater degree of probability) that the diagnosed disorder initially manifested during service or is otherwise etiologically related to active service. c) With regard to the Veteran's refractive error, the clinician should state whether it is at least as likely as not (50 percent or greater degree of probability) that any increase in the Veteran's refractive error of the eyes was due to a superimposed disease or injury. The clinician is asked to explain the reasons behind any opinions expressed and conclusions reached. The clinician is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the clinician's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the clinician is unable to offer any of the requested opinions, it is essential that he or she offer a rationale for the conclusion that an opinion could be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 3. With appropriate authorization from the Veteran, obtain and associate with the record any outstanding treatment records identified by him as pertinent to his claim. 4. Review the medical report for compliance with the Board's directives. Any corrective action should be undertaken prior to recertification to the Board. 5. Thereafter, afford the Veteran's representative the opportunity to present additional written argument in a VA Form 646, Statement of Accredited Representative in Appealed Case. The opportunity afforded, and any reply received, must be documented in the claims file. 6. After completing the requested actions, and any additional action deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if 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). (CONTINUED ON NEXT PAGE) 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 2014). _________________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).