Citation Nr: 1807854 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-20 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a right eye disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel INTRODUCTION The Veteran had honorable active military service from September 2006 to November 2006 and under honorable conditions active military service from December 2006 to October 2010. The Veteran appeared at an October 2016 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant 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. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). In 2007, while deployed in Iraq, the Veteran had an operation on his right eye involving an excision of a single chalazion. The Veteran contends that during this operation, his eye was accidentally cut and resulted in his current right eye disability. In September 2012, the Veteran underwent a VA examination. The examiner noted that the Veteran was hit in the back of his head in 2008 in Iraq with the door of an M-RAP vehicle. The examiner stated that the Veteran reported that ever since this accident his right eye drifts and he has had some visual loss, double vision, and watery eyes. The examiner opined that the Veteran's V-pattern exotropia has likely been present since the Veteran was a young child and did not appear after the Veteran's 2008 injury. Additionally, the examiner stated that he did not see anything on examination that would indicate that the Veteran's exotropia was aggravated beyond its natural progression by military service. However, throughout the record, the Veteran has contended that his right eye disability began after his 2007 eye operation. At his October 2016 hearing before the undersigned, the Veteran testified that he never stated that his right eye disability began after his 2008 injury. The Veteran explained that the confusion may have been due to his simultaneous claim for a service connection for a traumatic brain injury. Therefore, the Board finds that a remand is necessary to obtain a new VA examination as the September 2012 examination appears to rely on inaccurate facts. Additionally, since the September 2012 examiner stated that the Veteran's right eye condition could be a congenital condition or pre-existed his military service, but failed to discuss the Veteran's 2007 in-service eye operation, the Board finds that a new opinion regarding aggravation should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and service treatment records and associate those documents with the Veteran's claims file. 2. Forward a copy of the Veteran's claims file, to include a copy of this Remand, to an appropriate examiner to provide an opinion as to the nature and etiology of any right eye disability present during the appeal period. After reviewing the record, to include the Veteran's statements discussing his 2007 right eye operation conducted in Iraq and his accompanying service treatment records, the examiner is asked to address the following: a. The examiner should provide an opinion as to whether any current eye disorder was present during service. If so, further opinion as to whether the evidence clearly and unmistakably establishes that any diagnosed right eye disability existed prior to the Veteran's active service. b. If the examiner determines any diagnosed right eye disability did clearly and unmistakably exist prior to the Veteran's active service, the examiner must determine whether it clearly and unmistakably was not aggravated by his active duty service. In other words, is any increase clearly and unmistakably due to the natural progression of the disability? c. If the examiner determines that the Veteran's right eye disability did not exist prior to service, the examiner must determine whether it is at least as likely as not (50 percent or greater degree of probability) that it began during active duty service, was caused by service, or is otherwise related to active duty service. The examiner should discuss the Veteran's 2007 eye surgery The examiner is instructed that clearly and unmistakably requires that the evidence be obvious, manifest, and undebatable. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. The examiner is asked to provide a complete rationale for any opinions provided. 3. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2016). In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the evidence of record. 4. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary. 5. Then, the RO should readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran should be provided a supplemental statement of the case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL MARTIN 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).