Citation Nr: 21069145 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-59 139 DATE: November 17, 2021 REMANDED Entitlement to service connection for a bilateral eye disability is remanded. Entitlement to service connection for diabetes mellitus, type II, claimed as due to exposure to lead paint, solvents, and asbestos, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1963 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In January 2020, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In a February 2020 Board decision, the claims were remanded for further evidentiary development. A supplemental statement of the case (SSOC) was issued in September 2021. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. The February 2020 Board decision also remanded the matter of entitlement to service connection for a respiratory disability. In a September 2021 rating decision, the RO granted service connection for chronic obstructive pulmonary disease (COPD) and assigned a noncompensable rating, effective July 30, 2010. That matter has accordingly been resolved. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). 1. Entitlement to service connection for diabetes mellitus, type II, claimed as due to exposure to lead paint, solvents, and asbestos, is remanded. The Veteran has asserted entitlement to service connection for diabetes mellitus, type II, as due to exposure to lead paint and other solvents including PCBs and chromium. See, e.g., the Board hearing transcript dated January 2020. In the February 2020 decision, the Board noted that the prior VA medical opinions of record were insufficient because the examiners failed to address the Veteran's contentions of in-service exposure to lead paint and PCB fumes, or asbestos during his military service. As such, the claim was remanded in order to obtain a new VA medical opinion. Upon remand, a VA medical opinion was obtained in April 2021 at which time the examiner explained, "Veteran's medical records show the Veteran having abnormal sugar levels in the 1990s. The Veteran's diagnosis of diabetes was made in 1999, over thirty years after leaving active military service." The examiner thus concluded that "the Veteran's medical records support that any currently diagnosed condition(s) related to the Veteran's claimed diabetes mellitus type II is less likely than not (less than 50 percent probability) incurred in the Veteran's active duty service, or manifested within a year of his active duty discharge." The VA examiner provided an additional opinion regarding the impact of the Veteran's in-service exposure to lead paint on his claimed respiratory disability. However, the examiner did not address the impact, if any, of the presumed lead paint or other chemical exposures on the Veteran's incurrence of diabetes mellitus. As such, the evidence of record remains insufficient to determine whether service connection is warranted for diabetes mellitus, type II. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). Accordingly, this matter must be remanded to obtain a new VA opinion as to the etiology of the claimed disability to include outstanding questions of nexus. 2. Entitlement to service connection for a bilateral eye disability is remanded. The Veteran asserts entitlement to service connection for a bilateral eye disability, which he contends was incurred as a result of an in-service injury in which glass beads got into his right eye. See the Veteran's statement dated June 2010; see also the Board hearing transcript dated January 2020. At the January 2020 Board hearing, the Veteran, through his attorney, additionally contended that the Veteran' incurred a bilateral eye disability as a result of an in-service motor vehicle accident. See the January 2020 Board hearing transcript, pgs. 25-26. The Veteran's service treatment records (STRs) show that he was treated for complaints of a foreign body in the right eye in June 1966. An in-service automobile accident was documented in September 1966. STRs indicated that the Veteran sustained a laceration above his left eye at that time. See the STRs dated September 1966. The June 1967 separation examination indicated that the Veteran was hospitalized in September 1966 "with cerebral concussion, multiple contusions and abrasions of left knee and laceration left brow. Resulted from auto accident." The Veteran was afforded a VA examination and medical opinion in October 2017 as to his bilateral eye disability. The examiner indicated that the Veteran's photopsia and floaters are less likely as not related to a foreign body in his right eye during his military service. The examiner stated, "[t]his is because photopsia and floaters are not common in low impact foreign bodies and are associated with trauma from high speed impact or blunt force trauma. The Veteran denies either of these and stated that the wind likely blew something in eyes." The examiner continued, "[t]he timeline also does not fit for this as this happened 10 years prior to him noticing photopsia and around 20 years prior to when he states he first noticed the floaters. These symptoms would have [come] much sooner if they were related solely to the foreign body." Critically, the October 2017 VA examiner did not address the Veteran's contention that his bilateral eye disability to include photopsia and floaters was incurred as a result of the in-service automobile accident. The Board therefore finds that the evidence of record is insufficient to determine whether service connection is warranted for a bilateral eye disability. See Barr, supra. As such, this matter must be remanded to obtain a new VA opinion as to the etiology of the claimed disability to include outstanding questions of nexus. The matters are REMANDED for the following action: 1. Refer the VA claims file to a medical professional with appropriate expertise to provide an opinion as to the claimed diabetes mellitus, type II. The examiner is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. The examiner should then address whether it is at least as likely as not that the diagnosed diabetes mellitus, type II, was incurred in the Veteran's active duty service, or manifested within a year of his active duty discharge? In rendering this opinion, the examiner MUST ADDRESS the Veteran's claimed exposure to lead paint and other solvents, and/or asbestos. In addressing the above, the examiner must consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current diabetes mellitus disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how diabetes mellitus, type II, disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? In this regard, the examiner should note that the absence of evidence of treatment for claimed disability in the Veteran's service treatment records should not serve as the sole basis for a negative opinion. Should the examiner decide that a physical examination of the Veteran is required to address this question, such should be scheduled. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 2. Refer the VA claims file to a medical professional with appropriate expertise to provide an opinion as to the claimed bilateral eye disability. The examiner is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. The examiner should address whether it is at least as likely as not that the diagnosed bilateral eye disability, to include photopsia and floaters, was incurred in the Veteran's active duty service? In providing the requested opinion and rationale, the examiner MUST ADDRESS the relevant evidence of record, to include: (a) the Veteran's service treatment records, to include the June 1966 record documenting the foreign body in the right eye and the September 1966 record and June 1967 separation examination documenting the Veteran's injuries sustained in the in-service automobile accident; and (b) the Veteran's lay statements concerning the onset of his bilateral eye disability symptoms. In addressing the above, the examiner must consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current bilateral eye disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the diagnosed bilateral eye disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? In this regard, the examiner should note that the absence of evidence of treatment for claimed disability in the Veteran's service treatment records should not serve as the sole basis for a negative opinion. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.