Citation Nr: 21065184 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 13-35 092 DATE: October 25, 2021 REMANDED Entitlement to service connection for a disability manifested by decreased visual acuity is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from November 1986 to August 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with those determinations, and the present appeal ensued. In February 2014, the Veteran testified at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of this hearing has been associated with the Veteran's file. The Veteran's appealed issue has been before the Board on seven prior occasions, and it was concluded in each instance that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal, to include twice to obtain medical opinions from medical specialists. 38 U.S.C. §§ 5109 (a), 7109. The Board's prior remand directives and the subsequent actions of the AOJ and the Veterans Health administration (VHA) will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. 1. Entitlement to service connection for a disability manifested by decreased visual acuity is remanded. The Veteran's appeal entails several complex and unfortunate factors which, combined, have frustrated VA's efforts to adequately develop and readjudicate the matter under the governing laws. In an effort to recount these factors and clearly explain the current reasons for remand, the Board concludes that a brief recitation of pertinent facts would be helpful. The record reflects that the Veteran had a history of learning challenges during high school. However, despite this, he was accepted for enlistment in the United States Navy in November 1986, and his service entrance examination includes no reference to any cognitive and/or psychiatric deficits. While the Veteran was stationed aboard the U.S.S. Wisconsin, he began experiencing and exhibiting cognitive and behavioral abnormalities, including auditory hallucination, "disorganized behavior," and episodes of sleepwalking, the latter of which resulted in a head injury in late-November or early-December 1987. The record then reflects that in January 1988, the Veteran was hospitalized for psychiatric treatment at the United States Air Force Base, Keesler Medical Center. Diagnoses of mild intellectual impairment and schizophrenic disorder, undifferentiated type, were rendered. These diagnoses were perpetuated in the subsequent Medical Board, Temporary Disability Retired List (TDRL), and Physical Evaluation Board evaluations. Due to these findings, the Veteran was transferred from active duty in the United States Navy to the TDRL in August 1988, and he was ultimately discharged from the Naval Reserve due to "physical disability" in September 1990. Since the Veteran's service separation, service connection has been established for psychiatric and neurologic disabilities downstream from the facts recounted above. Specifically, service connection for undifferentiated schizophrenia was established due to the disability's initial onset during active duty, and service connection for a seizure disorder was established as secondary to the prescription and use of Haldol for treatment of the Veteran's service-connected schizophrenia. Further, as a result of the in-service head injury incurred when the Veteran fell during the December 1987 sleepwalking episode, service connection for residuals of a traumatic brain injury (TBI), migraine headaches, and Parkinsonian tremor affecting the head, neck, pharynx, vocal cords, and right arm has been established. All of the above is pertinent to the Veteran's current appeal, as he claims that his disability manifested by decreased visual acuity is either (1) proximately due to or the result of active duty, to include the December 1987 head injury, or (2) caused or aggravated by one of his service-connected disabilities. Further complicating matters, the nature, severity, and etiology of the disabilities underlying the Veteran's reports of decreased visual acuity are tenuous, as he has proven to be unwilling or unable to cooperate with vision testing. To this point, while a VA psychologist opined in August 2021 that the substantial discrepancy between the Veteran's reported and demonstrated visual acuity is due to his schizophrenia, there is disagreement among three other VA medical professionals (psychiatrist, psychologist, and neurologist) concerning whether the Veteran's inability to participate in vision testing in a constructive way is due to one or more of his service-connected disabilities or to the considerable cognitive deficits stemming from the diagnosis of some intellectual impairment. In view of the above complications and the unfruitful nature of the Board's six prior remands, the November 2020 remand directives requested the AOJ to obtain advisory medical opinions from an independent medical expert who specializes in disabilities and diseases of the eye pursuant to 38U.S.C. §5109(a). Specifically, the specialist was requested to identify all eye disabilities manifested by decreased visual acuity during the appeal period (since January 7, 2011) and provide opinions addressing whether each identified disability was proximately due to any incident of the Veteran's active duty, to specifically include the December 1987 head injury, or caused or aggravated by one or more of the Veteran's service-connected disabilities. Regarding the latter point, the Board specified that the specialist may defer any opinion to another medical specialist if such fell outside his/her expertise. In response, the Veteran's file was transferred to an optometrist, who provided 11 separate opinions in April 2021 and May 2021; however, not all questions posed by the Board could be addressed by this particular examiner. Specifically, the optometrist stated that a psychologist or psychiatrist should be consulted regarding whether the Veteran's claimed disability was caused or aggravated by his service-connected schizophrenia. Further, the optometrist stated that the Veteran's claimed disability may be due to his in-service head injury and/or residuals of a TBI, but no opinion could be rendered without resort to mere speculation due to the Veteran's inability to cooperate with vision testing, and thus, a "low vision specialist" should be requested to address the matter. In response to the optometrist's deferral, the Veteran's file was transferred to an ophthalmologist who is a low vision specialist. After review of the Veteran's file, the ophthalmologist provided five additional medical opinions in June 2021, but stated that other specialists should be engaged regarding the remaining requested opinions. Specifically, the ophthalmologist stated that a psychiatrist and a neurologist would be better suited to provide opinions concerning whether his service-connected psychiatric and neurologic disabilities may cause or aggravate his eye disabilities (particularly his ocular hypertension). As noted above, a VA psychologist reviewed the Veteran's file and provided opinions in August 2021; however, despite the ophthalmologist's June 2021 guidance, a neurologist was not consulted regarding whether the Veteran's eye disabilities (particularly his ocular hypertension) were due to his in-service head injury or caused or aggravated by his substantial neurologic disabilities, to residuals of a TBI, migraine headaches, and Parkinsonian tremor Parkinsonian tremor affecting the head, neck, pharynx, vocal cords, and right arm. The Board finds this inaction especially critical in light of the April 2021 optometrist's statement that, while such causation was possible, he/she could not render an opinion without resort to speculation. Perhaps, as provided by the ophthalmologist in the June 2021 statement, a neurologist could bring their expertise to bare and offer clarity of this matter. The Board acknowledges and appreciates the extensive efforts of the AOJ and the three medical specialists in furtherance of completing the Board's prior remand directives; however, another remand is necessary in light of the ophthalmologist in the June 2021 statement. In view of the medical complexities involved in the Veteran's appeal and the June 2021 guidance of the ophthalmologist, the Board concludes that an advisory opinion from an independent medical expert is necessary under 38U.S.C. §5109 (a) and 38C.F.R. §3.328. The matters are REMANDED for the following actions: 1. Pursuant to 38U.S.C. §5109 (a), the AOJ must obtain an advisory medical opinion from an independent medical expert who specializes in Neurology. After the clinician reviews the complete file, he/she is requested to address the following: a. Provide opinions concerning whether the Veteran's cataracts and ocular hypertension are at least as likely as not proximately due to or the result of any incident of the Veteran's active duty, to specifically include the December 1986 head injury. *In sum, the Board is asking whether the Veteran's in-service head injury could have caused increased intraocular pressure accounting to the Veteran's reports of decreased visual acuity. b. Provide opinions concerning whether the Veteran's cataracts and ocular hypertension are at least as likely as not proximately caused or aggravated by one of his service-connected neurologic disabilities (residuals of a TBI, migraine headaches, and Parkinsonian tremor Parkinsonian tremor affecting the head, neck, pharynx, vocal cords, and right arm). *In addressing the above, the examiner is asked to discuss whether any of the Veteran's service-connected disabilities or the medications prescribed for treatment thereof result in increased intercranial and/or intraocular pressure which may account for the Veteran's reports of decreased visual acuity. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. 2. Thereafter, the AOJ must readjudicate the issue on appeal in light of the totality of the evidence of record. If the benefit sought is not granted to the fullest extent, the Veteran and his private attorney must then be furnished with a copy of the readjudication and be afforded the applicable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.