Citation Nr: 21063661 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 16-05 847 DATE: October 15, 2021 REMANDED Entitlement to a compensable rating for bilateral ocular myasthenia and diplopia is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1969 to December 1982. Regrettably, the Veteran died in October 2011. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) St. Paul, Minnesota. Jurisdiction of this appeal is currently with the RO in Nashville, Tennessee. By way of history, in September 2019, the Board issued a decision denying entitlement to a compensable rating for his bilateral ocular myasthenia and diplopia. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Order, the Court granted a Joint Motion for Partial Remand of the parties and remanded the case to the Board for action consistent with the Joint Motion. This case was most recently before the Board in June 2021, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. Increased Rating Bilateral Ocular Myasthenia and Diplopia Regrettably, the Board finds that an additional remand is warranted prior to adjudication of the claim on its merits. Initially, with respect to the Goldmann Charts related to the May 2011 VA examination, the Board notes that an April 2013 VA Form 21-0820, Report of General Information, appears to indicate that such charts are available. Specifically, the form states that the charts would be provided within a week. Next, a May 2013 letter from VA to the Veteran states that a formal finding had been found that such charts were unavailable for review, and requested the appellant to submit any relevant documents in her possession. As noted above, the claim was denied in a September 2019 Board decision. Specifically, the Board based its denial on a May 2011 VA examination report. Notably, the September 2019 Board decision indicated that the Goldmann-Bowl Perimeter Eye Chart related to the May 2011 VA examination were unavailable for review. Additionally, the September 2019 Board decision determined that the May 2011 VA examination report showed visual acuity of 20/20 in the right eye and 20/30 in the left eye, and diplopia with equivalent visual acuity of 20/40 in each eye. Thus, the Board denied a compensable rating for his bilateral eye disorder. The appellant appealed the September 2019 Board decision to the Court. In its September 2020 Joint Motion, the Court determined that the September 2019 Board decision violated Colvin v. Derwinski as the Board substituted its own medical opinion when interpreting the May 2011 VA examination report. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thereafter, the Board remanded the claim for addendum VA opinions to interpret the May 2011 VA examination in March 2021 and June 2021. In the March 2021 and June 2021 Board remands, the Board directed the RO to obtain additional VA opinions as to the severity of the Veteran's bilateral ocular myasthenia and diplopia. Specifically, in the remand directives, the examiner was requested to consider the findings of "extreme gaze" and "worsened on prolonged upgaze" alone with other findings, and to describe the findings in the context of quadrants and degrees described in Diagnostic Code 6090. If the examiner could not do so, the examiner was asked to explain why. A VA addendum opinion was most recently obtained in August 2021. At that time, the examiner noted that visual field examination related to the May 2011 VA examination was not available for review, and noted the report indicates the Veteran had a full visual field that worsened with up and extreme gaze. The examiner stated there were "lots of questions" with the Veteran's examinations, noted some inconsistencies between examination reports and treatment records, and essentially determined that further testing was required, such as, placing an ice cube on the Veteran's eyelids. First, after a review of the claims file, the Board has determined that further development is necessary to satisfy VA's duty to assist under 38 C.F.R. § 3.159. In this regard, the record reflects that the May 2011 Goldmann charts were, at least initially, available for review. However, the RO determined without explanation nor documenting any attempts to associate such charts with the file, that they were unavailable for review. No further attempts have been made to associate the May 2011 Goldmann charts with the claims file. As the Court determined in its Joint Motion, and the August 2021 VA opinion seems to indicate, it is essential that an appropriately qualified medical professional review any available records to determine the nature and severity of the Veteran's bilateral ocular myasthenia and diplopia. Therefore, a remand is required to attempt to obtain the May 2011 Goldman Charts, document all attempts to obtain such records, and associate the charts with the claims file for review, until all further attempts would be futile. Next, the Board determines the August 2021 VA addendum opinion insufficient to decide the claim. In this regard, the August 2021 examiner did not adequately address nor consider the findings of "extreme gaze," and "worsened on prolonged upgaze," nor did the examiner describe the findings in the context of quadrants and degrees described in Diagnostic Code 6090 as directed by the June 2021 Board remand directives. Rather, the August 2021 VA examiner stated there were many questions with regard to the examination reports of record, and indicated further testing was necessary without explanation nor consideration that the Veteran has passed away. Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. See D'Aries, 22 Vet. App. at 105; see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As such, remand is again required to comply with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. at 268, 271 (1998). The matter is REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding treatment records pertinent to the Veteran's claim, to include the May 2011 Goldmann Chart. If any requested records are not available, the record should be annotated to reflect all attempts and unavailability and the appellant notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, forward the claims file to an appropriately qualified clinician to obtain a VA addendum opinion to determine the current nature and severity of the Veteran's service-connected bilateral ocular myasthenia and diplopia from March 17, 2010 until the time of his death on October 13, 2011. The record, to include a copy of this Remand, should be made available to the examiner. All pertinent evidence of record must be made available to and reviewed by the examiner, to include the May 2011 Goldmann chart, if available. Following a review of the relevant records, the examiner must interpret the May 2011 Goldmann charts and report the extent of the remaining visual field in each of the eight 45 degree principal meridians (temporally, down temporally, down, down nasally, nasally, up nasally, up, and up temporally) for each eye. Specifically, the examiner should consider the findings of "extreme gaze," and "worsened on prolonged upgaze," along with other findings in the May 2011 VA examination and state if he or she is able to describe in the context of quadrants and degrees described in Diagnostic Code 6090. The examiner is asked to determine in degrees, if possible, and provide such determinations, as to the Veteran's visual field defects, if any existed, based on a review of the May 2011 VA examination report and associated Goldmann Charts. If the examiner is unable to provide the requested information he or she should clearly explain why. The examiner must reconcile any conflicting medical evidence of record. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.