Citation Nr: 21069186 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 08-37 585 DATE: November 17, 2021 REMANDED Service connection for a left eye disorder, to include a corneal scar, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1968 to April 1971. This case has been before the Board of Veterans' Appeals (Board) multiple times since 2010. The Board remanded to the agency of original jurisdiction (AOJ), most recently, in September 2021. Because the AOJ did not substantially comply with the Board's instructions, another remand is now necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection for a Left Eye Disorder In December 2018, the Court of Appeals for Veterans Claims granted a Joint Motion for Remand (JMR) to the Board. As explained in the JMR, a September 2014 VA examination revealed "old superficial scars in both corneas." JMR at 3. The parties to the JMR agreed that remand was necessary to determine whether the Veteran experienced residuals related to the left eye corneal scar, and if he did, whether those residuals were related to service. Id. at 4. A January 2020 VA examination confirmed the presence of a microscopic corneal scar to the left eye. The 2020 examiner noted there was "apparently a laser to the scar done by the VA to repair the scar." Ultimately, the 2020 examiner determined this scar was less likely than not related to service. The Board found this opinion inadequate because the 2020 examiner made contradictory statements about the nature and etiology of the scar, and did not consider the Veteran's reported history of injury before and after service. See November 2020 Remand. Another examination followed in April 2021. The April 2021 examiner noted "corneal opacity 1mm, decreased tear break up time" in the left eye on examination, and found it less likely than not that the Veteran's corneal opacities were related to service. This opinion, too, was inadequate because the examiner failed to address all of the questions posed by the Board in its prior remand. See September 2021 Remand. In September 2021, the Board again remanded for an addendum opinion on the etiology of the Veteran's left eye corneal scar. The Board included detailed instructions as to the specific questions and pertinent evidence that the examiner should address. Id. at 3-4. On remand, an October 2021 examiner provided an opinion based on a review of the claims file. The October 2021 examiner stated that, per the April 2021 examination, "there is no [diagnosis] of corneal scar nor scar present on slit lamp exam and thus it is less likely as not [that] his left corneal scar results from injury during service rather than an eye injury in September 1999." The examiner offered no other rationale for this conclusion, and (like the prior examiner) failed to address the specific questions and evidence set forth in the remand. The October 2021 opinion is not responsive to the Board's instructions and not adequate to decide the claim. Another remand is therefore warranted. Stegall, 11 Vet. App. at 271. The Board also notes that a disability that resolves, or becomes asymptomatic, during the pendency of a claim may still be subject to service connection. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). As noted above, multiple VA examiners have documented the presence of a left corneal scar and/or corneal opacity over the course of the appeal. A private eye specialist, "Dr. E.N.," likewise noted a scar in July 2009. The examiner on remand must consider these prior clinical findings in rendering an opinion. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matter is REMANDED for the following action: 1. Obtain an addendum opinion on the nature and etiology of the Veteran's left eye corneal scar and/or corneal opacity from an appropriate clinician. After reviewing the claims file, including this remand, the examiner must address the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left eye corneal scar and/or corneal opacity resulted in functional impairment or other residuals during the pendency of the claim (i.e., since September 2006)? If so, describe the functional impairment and/or other residuals. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left eye corneal scar and/or corneal opacity was incurred in or is otherwise related to service? The examiner must clearly consider and discuss the Veteran's reported history of injury to his left eye during service. See e.g. December 2011 Board Testimony. The examiner must discuss whether there is any medical reason to accept or reject that his left corneal scar and/or corneal opacity results from the injury during service rather than an eye injury in September 1999. In particular, the examiner must discuss whether such a scar/opacity would have been detected on eye examinations during service or during the September 1985 VA medical evaluation. In so doing, the examiner must discuss the medical significance, if any, of the August 1967 pre-induction examination; February 1968 consultation; August 1968 eye examination; May 1969 profile; July 1969 service treatment records (STRs); January 1970 STR; February 1970 STR; March 1970 STR; April 1970 ophthalmology treatment notes; May 1970 STR; June 1970 examination; March 1971 examination; July 1971 VA examination; September 1985 VA medical evaluation; and September 1999 VA treatment record. The examiner must also discuss the July 2009 report from Dr. E.N., a private eye specialist. The examiner must also address any other pertinent lay statements regarding the left eye corneal scar and/or corneal opacity. 2. Review the medical opinion above to ensure substantial compliance with the Board's directives. Take any necessary corrective action. 3. Readjudicate the Veteran's claim. If it remains denied, issue a supplemental statement of the case and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, Associate 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.