Citation Nr: 0002160 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 97-20 114A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for primary open-angle glaucoma (POAG). REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant had active service in the Navy from June 1979 to January 1986. This case originally came before the Board of Veterans' Appeals (Board) on appeal of an April 1997 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama which denied service connection for primary open-angle glaucoma (POAG). The Board remanded the case to the RO in February 1999; the RO has now returned the case to the Board for appellate review. REMAND As noted, the case was previously remanded. Only part of the indicated development was accomplished. In the supplemental statement of the case, reference is made to the conclusion that the claim is not well grounded, and that under Morton v. West, 12 Vet. App. 477 (1999), development is precluded. The undersigned is aware of the holding of the Morton case, which was decided after the Board's remand. The undersigned is also aware of the holding in the case of Robinette v. Brown, 8 Vet. App. 69 (1995), which had been decided at the time of the remand. In part, at the time of the prior remand, it was the opinion of the Board that, based on the contentions advanced and the evidence on file, that there were records, of which the VA was aware, but which were not of record. Based on presentations of what was in those records, and in an attempt to avoid potential multiple remands, the Board indicated that after the records were obtained, the examination and opinion should be obtained. Specifically, at the time the case was previously before the Board, in his substantive appeal, the veteran had indicated that he had received treatment at the Birmingham VA Medical Center (VAMC) since 1990. He further indicated that treating physicians had informed him of the opinion that the glaucoma they were treating was related to service. The law provides that those records, being VA records are constructively on file. Unfortunately, they are not actually of record in the claims folder before the Board. What is of record is a September 1990 consultation sheet from the Tuscaloosa VAMC optometry clinic, indicating the need for an ophthalmology consult by the VAMC in Birmingham. Attention is directed to a visual field evaluation. It is indicated that the review was to "rule out" glaucoma. The RO has indicated that this did not take place. The basis for that conclusion is not clear from the record. The visual field evaluation and/or other optometric evaluation at that time is not on file. It is unclear that any of these 1990 records have been requested from either Birmingham or Tuscaloosa. As they are VA records, the VA should request these, and is obligated to do so. The veteran does not have to obtain and provide to the VA its own records. It is the undersigned's conclusion that an opinion to the claim's well-groundedness is premature without these records. Thus, the application is incomplete. If the records contain evidence as presented, the claim would be plausible, hence, well grounded. Without those records, there seems no informed way to respond to the contentions advanced in the substantive appeal. Hence, the request that those records be obtained. In addition, and now complicating the development picture, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter Court) has held that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The holding in this case was not distinguished, altered, or otherwise explained in Morton. As noted, the Board originally remanded the case in February 1999, for the gathering of pertinent medical records, as well as a medical review of the claims file and other records, an examination of the appellant and a rendering of a medical opinion. However, while the RO scheduled the appellant for a medical examination, the VA examiner was not provided with the appellant's claims file as specifically directed in paragraph 3 of the remand and therefore, as noted in his June 1999 examination report, the examiner was unable to render the opinion requested in the remand because he did not have access to any medical records dated before 1997, including the service medical records and apparently the earlier volume of medical records at the VAMC. Therefore, given the guidance offered by the Court in Stegall, the case must again be remanded. In order to ensure compliance with due process requirements, this case is REMANDED for the following development: 1. The RO should obtain copies of the VA ophthalmology and optometry records from September 1990 onward, including all visual fields testing results. Copies of all pertinent records from both volumes of medical records at the VAMC should be associated with the claims folder, to the extent not already on file. 2. After the above records have been obtained and associated with the claims file, the claims file should be given, if possible, to the medical professional who examined the appellant in June 1999, for review. If not possible, the records should be forwarded to some other ophthalmologist. The specialist should review the entire claims file prior to completion of the report, including in particular, the service medical records and all pertinent reports. The reviewer is requested to provide a written opinion as to the presence, etiology and onset of any eye disorder found. The review report should include a detailed account of all manifestations of ocular pathology present. The reviewer should determine the nature, extent, severity and symptomatology of any ocular disorder. Specifically, the reviewer is requested to provide an opinion as to the medical probability that any documented ocular pathology is related to symptoms or signs the appellant may have had in service or within a short time thereafter. The reviewer should also discuss, with degree of medical probability expressed, whether any signs or symptoms noted in service or within one year of service separation are the first manifestations of said disorders, as well as the approximate date of onset thereof. The results of any eye examinations of record should be discussed, as well as the clinical significance of any anatomic anomalies, the presence of advanced POAG at age 35, or any intervals of time which demonstrate an absence of medical treatment. In particular, the October 1982 in-service findings of increased intraocular pressure and an abnormal cup to disc ratio and the results of the November 1982 in-service ophthalmology consultation should be discussed. Any opinion expressed must be accompanied by a written rationale. If these matters cannot be medically determined without resort to mere conjecture, the reviewer should comment upon this. 3. The RO should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 4. The RO should readjudicate the appellant's claim for service connection under all applicable laws and regulations. 5. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. When this development has been completed, and if the benefits sought are not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case. It is requested that this document specifically set forth the reasons and bases for the decision. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. MICHAEL D. LYON Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).