Citation Nr: 21069816 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-26 039 DATE: November 19, 2021 REMANDED Entitlement to service-connection for an eye condition, to include as secondary to service-connected diabetes mellitus II, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a hearing before the undersigned. This matter was previously remanded by the Board in February 2020 and April 2021. The case has been returned to the Board at this time for further appellate review. Entitlement to service-connection for an eye condition, to include as secondary to service-connected diabetes mellitus II, is remanded. Pursuant to the April 2021 Board remand, VA opinions were obtained in May 2021 regarding the Veteran's eye disabilities. The Board finds these opinions to be inadequate for the following reasons. First, the VA examiner was directed that, if they found that the Veteran did not have diabetic retinopathy at any time during the appeal, they must explain why the diagnosis of diabetic retinopathy in the February 2012 letter from a private physician is not an accurate diagnosis. The May 2021 VA examiner opined that it was less likely than not that the Veteran had diabetic retinopathy at any time during the appeal period, but then stated that the February 2012 diagnosis of diabetic retinopathy has either resolved or was incorrect. The Board finds that, without further information, this opinion appears to be internally inconsistent the diagnosis was either correct, but the condition has since resolved, or the diagnosis was incorrect. Moreover, if the condition had resolved, it would still have been a condition noted during or near the appeal period, and would have potentially constituted a current disability for VA compensation purposes. Finally, if the examiner was attempting to state that he or she found the diagnosis was inaccurate, as opposed to correct at the time but since resolved, the opinion does not comply with the prior Board remand because the VA examiner did not explain why the February 2012 diagnosis of diabetic retinopathy was inaccurate. This is particularly important because the letter from the Veteran's private physician was actually written in February 2013, and there are several private medical records from 2008 to 2013 that reflect a diagnosis of diabetic retinopathy Second, the May 2021 VA examiner's opinion regarding whether the Veteran's diagnosed eye disabilities were at least as likely as not proximately due to, the result of, or aggravated by the Veteran's service-connected diabetes mellitus type II is not based on a sufficient rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Third, the Board finds that the VA examiner did not sufficiently address the issue of whether the Veteran's hypothyroidism was caused by the Veteran's service-connected diabetes mellitus II and whether or not the Veteran had any eye disabilities due to hypothyroidism. Because the Board finds that the May 2021 VA opinion is inadequate, remand is warranted. The Board also notes that record reflects that the Veteran is treated by a private physician for his eye disabilities. The Veteran's VA treatment records reflect that he has been treated by his private physician multiple times since the last time treatment records were obtained from the Veteran's private physician. Thus, on remand, efforts should be made to obtain any missing treatment records from the Veteran's private physician and associate them with the claims file. This matter is REMANDED for the following action: 1. Ask the Veteran to identify any private treatment that he may have had for his eye disabilities, particularly for recent treatment provided by Dr. J. K. at Arbor Centers for Eye Care. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Obtain an opinion from a qualified clinician to determine whether any eye disability found during or near the period on appeal is related to the Veteran's military service. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. After review of the claims file, and examination of the Veteran if deemed necessary, the clinician should identify all eye disabilities found during the period on appeal. In this regard, the VA examiner should address the Veteran's records indicating diagnoses of diabetic retinopathy, cataracts, retinal tear, and thyroid eye disease. The examiner is specifically asked to opine as to whether the Veteran at least as likely as not has had diabetic retinopathy at any time during the course of the appeal. If the examiner finds the Veteran did not have diabetic retinopathy at any time during the appeal, the examiner must address why the diagnosis of diabetic retinopathy in the February 2013 letter from a private physician, as well as the other diagnoses of diabetic retinopathy reflected in the Veteran's private treatment records, were not accurate diagnoses. For each eye disability identified during the period on appeal, the clinician should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran's active service. In addition, for each eye disability identified during the period on appeal, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the eye disability was (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran's service-connected diabetes mellitus II. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the Veteran's eye disability prior to aggravation by the service-connected diabetes mellitus II. Please note, causation and aggravation are separate concepts and must be addressed independently. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so; however, the Veteran's history of symptoms capable of lay observation cannot be dismissed solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Obtain an opinion from a qualified clinician to determine whether it is at least as likely as not that the Veteran has had an eye disability during the appeal period that was caused by his hypothyroidism. In this regard, the examiner must address the Veteran's medical records reflecting a diagnosis of thyroid eye disease. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. If the examiner finds that the Veteran had an eye disability caused by his hypothyroidism at any point during the appeal period, then the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypothyroidism was (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran's service-connected diabetes mellitus II. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the Veteran's hypothyroidism prior to aggravation by the service-connected diabetes mellitus II. Please note, causation and aggravation are separate concepts and must be addressed independently. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so; however, the Veteran's history of symptoms capable of lay observation cannot be dismissed solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.