Citation Nr: 1823932 Decision Date: 04/20/18 Archive Date: 04/26/18 DOCKET NO. 14-27 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a right eye disability. REPRESENTATION Appellant represented by: Mississippi State Veterans Affairs Board ATTORNEY FOR THE BOARD K. Brozyna, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1963 to May 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This case was remanded by the Board in August 2016 for further development. The case has now been returned to the Board for further appellate review. Unfortunately, there was not substantial compliance with the Board's remand directives, and the appeal is again remanded to the Agency of Original jurisdiction (AOJ). Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Although the Board regrets additional delay, remand is necessary for additional evidentiary development before the Board can adjudicate the Veteran's claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). As noted above, a remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall, 11 Vet. App. at 271. In Stegall, the Court held that "where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. There are times when substantial, even if not total or exact, compliance with a remand directive is sufficient. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47(1999) (remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). There has not been substantial compliance in this case. With regard to the Veteran's claim for a right eye disability, the October 2016 examiner, in pertinent part, was provided with the following directive as indicated in the August 2016 Board Remand: [S]chedule the Veteran for a VA examination with an appropriate physician to determine the current nature and the etiology of his claimed right eye cataract with loss of vision. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The complete electronic claims file must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. (a) The examiner should indicate whether it is "at least as likely as not" (meaning likelihood of at least 50%) that any right eye cataract (or residuals of) and right eye loss of vision/visual acuity is related to the Veteran's active service. The Board directs the examiner's attention to the Veteran's visual acuity of 20/20 at entry; 20/25 in May 1966; 20/20 at separation; and 20/25 in May 1968; as well as his competent complaints of having "floaters" in his right eye since service. (b) The examiner should also indicate whether it is "at least as likely as not" (meaning likelihood of at least 50%) that any right eye cataract (or residuals of) and right eye loss of vision/visual acuity is (i) proximately due to, or (ii) aggravated by the service-connected loss left eye blindness due to uveitis and post-operative retinal detachment. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The term aggravation means that there is a permanent worsening beyond the normal progression of the disability. Unfortunately, it is unclear if the above October 2016 examiner addressed the Veteran's competent complaints of having "floaters" in his right eye since service. In reviewing the October 2016 examination, the examiner indicated the right eye vitreous is normal without discussing the Veteran's complaints of floaters. The Veteran has specifically claimed that he believes the floaters are related to his hospitalization in service. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran the opportunity to submit, or authorize VA to obtain on his behalf, any additional medical treatment records, either private or VA, relevant to treatment received for his right eye disability. VA treatment records dates through approximately January 2013, are currently associated with the claims file. Associate all records obtained with the Veteran's claims file. If any requested records are not available, the record should be annotated to reflect as such, and the Veteran notified. 2. After obtaining all available treatment records, the electronic claims file should be made available to the VA October 2016 examiner for an addendum opinion. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. If he is not available, the electronic claims file should be forwarded to an appropriate medical professional to offer an addendum opinion to afford the Veteran the appropriate VA examination if necessary. The electronic claims files, to include a complete copy of the REMAND, must be made available to the examiner for review. Following a review of the claims file, the reviewing examiner is requested to address the following: (a) The Veteran has credibly reported that he has floaters in his right eye since service. See October 2015 VA 646 Statement of Accredited Representative; see July 2014 Form 9. The examiner is directed to review the Veteran's service treatment records (STRs) referencing floaters. See STRs dated August 1966. Is this reflective of an eye disability other than those diagnosed in the October 2016 report? If so, please identify the disability. (b) For any eye disability identified, and specifically the floaters, in section (A) above, please opine as to whether it is at least as likely as not (50 percent probability or greater) that such disability: (A) had its onset in service or is otherwise related to service; (B) is causally related to the Veteran's service-connected left eye disability (blindness, due to uveitis, post-operative retinal detachment); or (C) has been aggravated (worsened) by Veteran's service-connected left eye disability (blindness, due to uveitis, post-operative retinal detachment)? A separate opinion must be rendered for each diagnosed eye disability noted above, and each such opinion must include a robust rationale. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided. 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). 3. After completing the above, and any other development deemed necessary, readjudicate the issue currently on appeal with consideration of all applicable laws and regulations. If the benefit sought on appeal remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow the appropriate time for response. Then, return the case to the Board. 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). _________________________________________________ MARJORIE A. AUER 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).