Citation Nr: 1806796 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 11-23 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for an eye disorder, to include as secondary to a service connected disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) for the periods prior to September 16, 2009 and from January 1, 2010 to March 24, 2014. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1968 to January 1975. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2016, the case was remanded for additional development. [The Board's April 2016 remand also addressed a claim of service connection for a psychiatric disorder. A December 2017 rating decision granted the Veteran service connection for posttraumatic stress disorder (PTSD), resolving that matter.] 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 expanded record, the Board regretfully further development remains necessary to ensure that the Board's prior remand instructions are fulfilled. The Veteran contends that he has an eye disorder secondary to his service-connected disabilities, specifically as an ocular complication of his type 2 diabetes mellitus. The Board's previous [April 2016] remand noted that the Veteran had not been afforded a VA ophthalmological examination to determine the nature and etiology of his eye disabilities and their relationship, if any, to his type 2 diabetes mellitus and other service-connected disabilities. The matter was remanded for an examination and opinion as to whether any identified eye disorder had its onset during the Veteran's active service or is was caused or aggravated by his type 2 diabetes mellitus and other service-connected disabilities. On August 2016 VA examination the diagnoses included bilateral intermittent diplopia, bilateral pinguecula, and bilateral nuclear sclerotic cataracts. The examiner opined that those diagnosed entities are less likely than not incurred in or caused by service, and are less likely than not proximately due to or the result of [the Veteran's] diabetes mellitus type 2. The examiner opined that neither pinguecula nor cataracts is caused by type 2 diabetes mellitus , explaining that pinguecula are caused by external factors such as sun exposure, and opining that the Veteran's cataracts are strictly age related and in no way caused by diabetes mellitus . The examiner opined that the Veteran does not have any ocular diagnosis related to any service connected condition. The Board finds that the April 2016 remand instructions were not fulfilled. The August 2016 examination report did not include an opinion regarding whether the Veteran's eye disabilities have been aggravated by the service-connected diabetes mellitus. The Board's consideration must encompass the aggravation aspect of the secondary service connection claim. The August 2016 examination report also did not include an adequate opinion regarding whether the Veteran's eye disabilities are caused or aggravated by his other service-connected disabilities; a brief opinion that the Veteran "does not have any ocular diagnosis related to any service connected condition" is not sufficient. A remand to secure a fully adequate medical advisory opinion is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). Furthermore, in April 2016, the Board noted that the matter of entitlement to a TDIU rating for periods prior to September 16, 2009 and from January 1, 2010 to March 24, 2014 requires an accurate assessment of the impairment associated with all of the service-connected disabilities during the relevant periods, and remanded the matter. Since then, the posture of the claim has changed substantially. Specifically, a December 2017 rating decision granted the Veteran service connection for PTSD, rated 70 percent, effective July 7, 2007; and also (pursuant to the Board's April 2016 decision) granted 20 percent ratings, each, for left and right lower extremity peripheral neuropathy from December 27, 2007 to July 17, 2014. The Veteran now clearly meets the schedular requirements for a TDIU rating during the relevant periods (and has another significantly disabling service connected disability). However, the AOJ has not revisited the matter of entitlement to TDIU in light of these grants and the impact of the additional disabilities on the Veteran's ability to obtain and maintain substantially gainful employment (during the periods remaining for consideration). If the Board were to address the TDIU matter on appeal at this time, it would constitute a violation of due process. Accordingly, the case is REMANDED for the following: 1. The record should be forwarded to the August 2016 VA eye examiner for an addendum opinion regarding the nature and likely etiology of the Veteran's eye disabilities, and specifically whether or not any found was caused or aggravated by his service-connected disabilities. Following a review of the Veteran's claims file (to include this remand), the examiner should provide opinions that respond to the following: Regarding each eye disability entity diagnosed, please opine whether it is at least as likely as not (a 50% or better probability) that such was either caused or aggravated (increased in severity due to) by his service-connected diabetes mellitus or other service-connected disabilities. If a diagnosed eye disability is determined to not have been caused or aggravated by the Veteran's diabetes mellitus or other service-connected disabilities, please identify the etiological factor(s) considered more likely. The examiner must explain the rationale for all opinions, citing to supporting factual data/medical literature. 2. The AOJ should then review the expanded record, arrange for all further development necessary to properly adjudicate the claim for TDIU in light of what has transpired since April 2016, and readjudicate the claims on appeal. If either remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative the opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), 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).