Citation Nr: 1808702 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 12-08 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an eye disability, to include as secondary to service-connected hypertension. (The issues of an increased rating evaluation for lumbar strain, and a compensable evaluation for chronic sinusitis and residuals of a fractured nose are the subject of another decision issued simultaneously.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1975 to May 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified during a June 2015 personal hearing before the undersigned Veterans Law Judge. A transcript of this testimony is associated with the claims file. This case was previously before the Board in July 2015 and July 2017 when it remanded the underlying claim to the RO for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay, a remand is necessary to ensure VA provides the Veteran with appropriate process and assistance in developing his claim prior to final adjudication. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Despite the AOJ's actions, the Board finds that there has not been substantial compliance with the July 2017 remand directives, necessitating further remand of this matter. The September 2017 VA examiner did perform a new eye examination and submitted an opinion related to that examination. However, the examiner did not complete the request made in the July 2017 Board remand. The Board requested that the VA examiner discuss the medical information that the Veteran had submitted with respect to the relationship between dry eye and hypertension. The examiner did not discuss the information submitted by the Veteran and apply it to the facts of the Veteran's case, as requested. Additionally, the examiner alluded to another theory of secondary service connection in the September 2017 VA opinion by stating that, "there is evidence to support that certain medication for hypertension can cause dry eye, there was no research to support that hypertension itself can cause dry eye." Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). As service connection may be established on a secondary basis for disability due to medication used to treat a service-connected disability, an opinion is warranted on this issue since the examiner did not explain whether any of the Veteran's medications for hypertension have caused or aggravated his claimed eye disability. See 38 C.F.R. §§ 3.159(c), 3.310. Accordingly, the case is REMANDED for the following action: 1. Return the September 2017 VA eye examination to the original examiner who performed the examination; if that examiner is not available, return the examination to another qualified eye examiner. In light of the examiner's recognition that "there is evidence to support that certain medication for hypertension can cause dry eye," the examiner should discuss the following in an opinion: (a) Did the Veteran's diagnosed bilateral dry eye condition develop because of any of the medications the Veteran takes to treat his hypertension? (b) Was the Veteran's diagnosed bilateral dry eye condition aggravated or worsened due to any of the medications the Veteran takes to treat his hypertension? (c) Please discuss the medical information (citation to Web MD) submitted by the Veteran on the connection between hypertension and dry eye, to include the relationship between hypertension medications and dry eye, and opine on whether or how such information applies to the facts in the Veteran's case. A rationale for any opinion reached should be provided. If the VA examiner concludes that an opinion cannot be offered without engaging in speculation then he/she should indicate this and explain the reason why an opinion would be speculative and explain if there is any additional information that would assist him or her in producing a non-speculative opinion. 2. After completing the above actions, the claim must be re-adjudicated. If the benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 2014). ____________________________________________ TANYA SMITH 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).