Citation Nr: 21004440 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 11-09 129 DATE: January 27, 2021 REMANDED Entitlement to a rating in excess of 10 percent for conjunctivitis, blepharitis, and dry eye syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from August 1966 to July 1969. His awards include the Vietnam Service Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse appeared and testified at a personal hearing in December 2014 before a Veterans Law Judge (VLJ). A transcript of the hearing is contained in the record. The VLJ who presided over the 2014 hearing is no longer with the Board. The Veteran was notified and in December 2017 declined to be scheduled for an additional hearing. Entitlement to total disability based on individual unemployability was granted in a February 2014 rating decision. This claim was previously before the Board in March 2015, January 2018, and October 2019. In March 2015, the Board remanded for additional treatment records and an updated VA examination. In January 2018, the Board remanded for an additional VA examination by an ophthalmologist to address whether the Veteran’s various eye symptoms were attributed to his service-connected eye conditions. The examination provided in March 2019 was completed by an optometrist, and the Veteran’s representative argued that this did not meet the remand orders of the Board. In October 2019, the claim was remanded for a 2009 visual field chart, and a new examination by an ophthalmologist. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Veterans Appeals (CAVC). CAVC has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a rating in excess of 10 percent for conjunctivitis, blepharitis, and dry eye syndrome is remanded. Unfortunately, the Veteran’s claim must be remanded again, as the RO has not complied with the Board 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The October 2019 Board remand included that visual field testing results (Goldmann visual field chart) from June 2009 be obtained and added to the claims file. A review of the record does not show that the 2009 visual field chart was added to the claims file. Alternatively, there is no formal finding of unavailability or any indication that an attempt was made to obtain the 2009 visual field chart. The January 2018 Board remand included the directive of “schedule the Veteran for a VA examination with an Ophthalmologist to determine the nature and severity of his service connected conjunctivitis/blepharitis.” Emphasis in the original. A March 2019 VA examination was completed by an optometrist. A September 2019 Appellant Brief submitted by the Veteran’s representative noted that the 2018 remand directives indicated that the examination be conducted by an ophthalmologist, but the 2019 examination was completed by an optometrist, and the representative “assert[ed] another [VA examination is] warranted!” The representative cited Stegall, as above. In the most recent remand, in October 2019, the Board directed that the Veteran be scheduled for a VA eye examination “by an ophthalmologist, if possible. If an ophthalmologist is not available, then the steps taken to try to use an ophthalmologist should be documented.” In December 2019, the Veteran participated in another VA examination. There is no indication on the examination report whether the examiner was an ophthalmologist or an optometrist. Notably, prior examinations included signature blocks which indicated the examiner’s title. An internet search of the examiner’s name and state indicates that he is likely an optometrist. Although the 2019 remand noted that an ophthalmologist be used for the examination “if possible,” the RO did not indicate what steps were used to have the examination completed by an ophthalmologist. The Board recognizes that occasionally certain areas do not have the requested specialty available for examinations; however, in that case, there should have been an explanation of such in the record as described in the remand directives. As such, this has been a Stegall violation, and the claim must be remanded for compliance. Turning to the meat of the increased eye rating claim, the Veteran is currently service connected for blepharitis and conjunctivitis. He has reported the following symptoms are due to his service-connected blepharitis and conjunctivitis: bilateral dry eyes, severe photosensitivity, red eyes, crusting of his eyes, a sandy/gritty feeling, and loss of peripheral vision/visual field defect. In October 2008, the Veteran began having symptoms of headaches, dizziness, confusion, decreased concentration, and forgetfulness. A head CT noted a large right parasagittal parietal meningioma with edema, mass effect, and midline shift. On October 26, 2008, the Veteran noted a tendency to bump into things on his left side, which had improved somewhat since hospital admission and steroid use. The Veteran underwent right occipital craniotomy and removal of tumor, pathological findings of meningioma with atypical features on October 30, 2008. An operation report noted that he had presented with headaches, cognitive and attention deficits, and “left-sided neglect symptoms” and was found to have a large right meningioma. Prior to 2008, the only post-service treatment record related to the Veteran’s eyes was a March 1976 examination which diagnosed chronic conjunctivitis. A June 2009 VA eye examination included that there was no obvious ocular cause for extreme photophobia as his corneas and anterior chambers were “quiet both eyes.” It was noted that his photophobia had “possible psychological origin.” Regarding his “depressed fields in all meridians” the examiner noted that there were “many false negatives” on left eye testing (reliable right eye testing) with the Humphrey field test. A July 2015 VA eye examination included that the Veteran did not have a visual field defect. Visual field testing had “questionable reliability, possible bilateral lid defect.” The examiner included the Veteran’s complaints of blepharitis symptoms of flaking of the skin around the eyes, crusted eyelashes upon awakening, and “sensitivity to light.” A January 2019 fee-basis (contract) eye examination included findings of dry eye syndrome, photophobia, decreased visual acuity, decreased peripheral vision, constant gritty feeling, and “extreme eye discomfort.” He did “not have a documented visual field defect,” but it does not appear visual field testing was performed. The examiner noted that photophobia, decreased visual acuity, and decreased peripheral vision were “symptoms that did not warrant a separate diagnosis.” The Veteran’s hyperemia and conjunctivitis are due to dry eye and do not warrant a conjunctive/conjunctivitis condition. The examiner noted that blepharitis was a risk factor in causing dry eye syndrome and its subsequent symptoms. “Age related cataracts are not visually significant and are not related to blepharitis. The January 2019 examiner noted several records from 2009-2010 which indicated that the Veteran’s brain tumor impacted his vision, including a December 2009 assessment of “brain tumor with questionable [visual field] defect” and a January 2010 MRI finding that his brain tumor would not cause right visual field issues. The examiner noted that the Veteran did “not show a reliable visual field defect. His ability to ambulate around the office was adequate. His extreme photosensitivity and eye discomfort “caused visual impairment and poor visual field testing reliability.” The examiner did not specifically address whether the Veteran’s photophobia and subjective loss of visual field were due to his service-connected disabilities or his brain tumor and removal. The December 2019 VA eye examination included diagnoses of bilateral cataracts, bilateral dry eye syndrome, viral keratitis right eye (resolved in 1969), mild bilateral blepharitis, superficial corneal opacities right eye, and mild bilateral ptosis. The examiner found that the Veteran did not have a documented visual field defect. Under the lacrimal system section, the examiner selected that the Veteran did not have a disorder of the lacrimal apparatus. The remarks section noted that the Veteran underwent a Goldman Bowl Visual Field test on December 30, 2019 with his upper lids taped. “Results show significant improvement in the superior field in both the right and left eye with the upper eyelids taped.” The examiner also cited a December 30, 2019 Humphrey Visual Field showed clover field pattern right eye, and clover field pattern with high false positives left eye. The December 2019 VA examiner opined that the Veteran’s dry eye syndrome was due to his service-connected blepharitis. Additionally, the examiner noted that the Veteran’s photophobia was at least as likely as not associated with his blepharitis. However, the opinion did not address the indication that the Veteran had severe photophobia beyond “light sensitivity” that is “commonly associated with” blepharitis. Regarding his peripheral vision loss, the examiner noted that a “Goldmann bowl” was performed, as well as a Humphrey visual field (HVF). The examiner noted that the HVF showed a “generalized restriction in both the right and left eye in a clover field pattern. A clover field pattern on an HVF is an unreliable result as a patient generally losses attention during the course of the test and misses the peripheral test points.” The examiner noted that this was the same results as prior HVF testing, “thus making [it so that the examiner was] unable…to provide an opinion to if there is an actual visual field defect with [HVF] testing, but by taking all of the testing as a whole” the examiner opined that the Veteran did not have a visual field defect. Lastly, the examiner noted that the Veteran did not have a superior visual field defect. “This was an error in testing as the Veteran’s superior eyelids were not taped resulting in a false positive.” The Veteran had mild bilateral ptosis causing his upper eyelids to sag downward. The Goldmann visual field was repeated with taped upper eyelids and showed marked improvement. The examiner noted that the Veteran’s ptosis was not related to nor caused by his blepharitis/conjunctivitis. None of the visual field test results are contained in the record and should be added on remand. The examiner’s opinion that the Veteran’s ptosis was not due to his service-connected blepharitis and conjunctivitis was not supported by a rationale. The Board has added dry eye syndrome to the Veteran’s service-connected eye disorders, as the December 2019 examiner provided a positive medical opinion for this condition with a supporting rationale. The matters are REMANDED for the following action: 1. Visual field testing charts from June 2009 and December 2019 must be added to the claims file. If the charts are not available, a memorandum formal finding of unavailability must be added to the claims file. 2. Schedule the Veteran for a VA eye examination to determine the current severity of his service-connected eye conditions, and to provide opinions regarding whether his complained of symptoms are due to his service-connected eye conditions. The examination should be provided by an ophthalmologist, if possible. If an ophthalmologist is not available, then the steps taken to try to use an ophthalmologist should be documented. Following a review of the record and this REMAND, the examiner should provide the following: (a.) Is it at least as likely as not (50/50 probability or greater) that the Veteran’s severe photophobia is a symptom of his service-connected conjunctivitis/blepharitis/dry eye syndrome? (b.) Does the Veteran have a loss of peripheral vision? If so, is it at least as likely as not (50/50 probability or greater) that the Veteran’s loss of peripheral vision is due to his service-connected conjunctivitis/blepharitis/dry eye syndrome? i. Does the Veteran have objective loss of peripheral vision? If the results of testing are unreliable, then is there objective evidence of loss of peripheral vision? E.g. bumping into walls, not seeing someone standing next to him. ii. If the Veteran has only subjective loss of peripheral vision, what is the likely cause? The examiner should note the 2008 and April 2014 neuro-ophthalmology notations of “left-sided neglect” and the 2009 VA examiner’s notation that the Veteran’s photophobia may have a “psychological origin.” (c.) The 2015 VA examination diagnosed right eye superficial corneal opacities, and found that these represented “visible or palpable tissue loss” regarding scarring or disfigurement. Does the Veteran have current right eye superficial corneal opacities? i. Is it at least as likely as not (50/50 probability or greater) that the corneal opacities are due to his conjunctivitis/blepharitis? If the Veteran does not have current corneal opacities this question should be answered in reference to the noted 2015 opacities. ii. If the corneal opacities are due to his service-connected eye disorders, then do they/would they result in visible or palpable tissue loss? (d.) Is it at least as likely as not (50/50 probability or greater) that the Veteran’s bilateral mild ptosis is due to his service-connected conjunctivitis/blepharitis/dry eye syndrome? A complete explanation/rationale must be provided for each opinion expressed. 3. After completing the development requested above, readjudicate the Veteran’s claim. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. Stubbs, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.