Citation Nr: 21069975 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 18-15 915 DATE: November 22, 2021 REMANDED Entitlement to an initial compensable disability rating for bilateral glaucoma suspect, claimed as ocular hypertension, is remanded Entitlement to service connection for a left ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1969 to February 1972 and from January 1983 to July 2000. For the Veteran's service, he was awarded the Vietnam Campaign Medal and Vietnam Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision. The Veteran's claims were remanded by the Board in October 2019. Unfortunately, the Veteran's claims must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims, so he is afforded every possible consideration. 1. Entitlement to an initial compensable disability rating for bilateral glaucoma suspect, claimed as ocular hypertension, is remanded. The Veteran's claim for an initial compensable disability rating for bilateral glaucoma suspect, claimed as ocular hypertension was remanded by the Board in October 2019, in part, to afford him an examination to determine the current severity of his eye disability. The examiner providing the examination was also directed to determine the most appropriate diagnosis for the Veteran's intraocular pressure between ocular hypertension and glaucoma suspect. The examiner was also instructed to determine whether the Veteran has bilateral abnormal intraocular pressure/ocular hypertension/glaucoma suspect, and whether his bilateral nuclear sclerotic cataracts are associated with, caused by, or a continuation of his service-connected mild glaucoma suspect. Pursuant to the Board's remand, the Veteran was afforded an Eye Conditions Disability Benefits Questionnaire in December 2019. The examination report demonstrates that the Veteran has diagnoses of bilateral ocular hypertension and bilateral combined cataract. A December 2019 medical opinion provides that the most appropriate diagnosis for the Veteran's abnormal intraocular pressure is ocular hypertension. There is no evidence of glaucomatous change to the optic nerves or the visual fields on examination. An additional December 2019 medical opinion states the Veteran has findings of bilateral abnormal intraocular pressure on examination. Glaucoma suspect describes a person who has borderline signs of glaucoma as it might be the appearance of the optic disc or retinal nerve fiber layer. The Veteran's optic disc, retinal nerve fiber layer, and visual fields appear to be normal. There are no physical signs of glaucoma on examination. Abnormal, elevated intraocular pressure is a risk factor for the development of glaucoma, but it is not a physical sign of glaucoma. If the only finding on examination is elevated intraocular pressure, without other physical signs of glaucoma, then it is ocular hypertension. The longer a person has elevated intraocular pressure without other physical signs of glaucoma, the lower the risk becomes for the development of glaucoma. Subsequent to the examination and medical opinions, the Veteran's VA treatment records demonstrate that he now has glaucoma suspect with anatomic narrow occludable angles. His VA treatment records demonstrate that he underwent a right eye iris laser iridotomy on January 17, 2020 and left eye iris laser iridotomies on February 3, 2020 and February 10, 2020, which are used to treat closed or narrow angle glaucoma. Based on the above, the Veteran may have glaucoma that is a continuation or progression of his service-connected bilateral glaucoma suspect, claimed as ocular hypertension, and he has had laser treatments, which are an example of an incapacitating episode under the General Rating Formula for Diseases of the Eye. 38 C.F.R. § 4.79; Note (1), (2), General Rating Formula for Diseases of the Eye. Should the Veteran's eye disability warrant consideration of evaluation under Diagnostic Code 6012 for Angle-closure glaucoma or Diagnostic Code 6013 for Open-angle glaucoma, the utilization of the General Rating Formula for Diseases of the Eye could result in a compensable disability rating. Therefore, the Board finds that the evidence is not adequate to determine the current severity of his eye disability. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is not competent to substitute its own opinion for that of a medical expert). A remand is necessary to obtain a medical opinion to determine whether the Veteran has a diagnosis of glaucoma, and if so, whether his glaucoma is a continuation or progression of his service-connected bilateral glaucoma suspect, claimed as ocular hypertension. The Veteran's VA treatment records demonstrate that images of his eyes can be viewed in VistA Imaging. See November 2019 VA Eye Note. It does not appear that the Veteran's eye images are included in the VA treatment records currently associated with his claims folder. Any VA treatment records are within VA's constructive possession and are considered potentially relevant to his claim on appeal. A remand is required to allow VA to obtain these records and associate them with the Veteran's claims folder in a way which makes them reviewable by the Agency of Original Jurisdiction (AOJ) and the Board. 2. Entitlement to service connection for a left ankle disability is remanded. The Veteran's claim for service connection was remanded by the Board in October 2019 to afford him an examination and medical opinions to evaluate the nature and etiology of his ankle disability. In particular, the remand directed the examiner providing the examination and medical opinions to determine if the Veteran has a current left ankle disability and to opine whether his current left ankle disability began during his active service or is otherwise related to his active service. The examiner was also directed to opine whether his left foot plantar fasciitis is caused by his in-service left ankle disability or otherwise related to his active service. Pursuant to the Board's remand, the Veteran was afforded an Ankle Conditions Disability Benefits Questionnaire in January 2020. In terms of medical history, the Veteran's service treatment records demonstrate that he sustained a left ankle injury in March 1983. The examination report demonstrates that the Veteran reported experiencing current left ankle pain and weakness that is worse with standing and walking. Concerning function loss or functional impairment, the Veteran stated that he has difficulty with weightbearing and ambulating due to his left ankle pain. The examination report states that the Veteran does not have a current left ankle diagnosis and that although he reported left ankle pain and weakness, the examiner did not observe pain or weakness on examination. The objective examination was normal with no evidence of a left ankle disability. The Veteran's claims folder contains several corresponding January 2020 medical opinions. The medical opinions conclude that it is less likely than not that the Veteran's claimed left ankle disability is related to his active service as his in-service disability was acute only. The ankle sprain that he sustained in 1983 appears to have resolved as and was not symptomatic per his subsequent medical evaluations in 1989, 1994, or 1995. The Veteran's service period did not adversely impact his left ankle after 1983. There is no evidence of chronicity of care. Further, there is no diagnosis for the claimed disability at this time. The Board finds that the January 2020 medical opinions are inadequate in part, because they are based upon an absence of contemporaneous documentation of treatment for left ankle pain during the Veteran's active service and following his separation. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible); Cf. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that a VA opinion was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide a negative opinion). Additionally, under Saunders v. Wilkie, the United States Federal Circuit Court (Federal Circuit) held that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment.). Considering Saunders and that pain alone resulting in functional impairment (without an underlying pathology) can constitute a disability for VA purposes, as well as the Veteran's competent assertions of left ankle pain and weakness and associated functional impairment, the Board finds that his claim for service connection must be remanded so that he can be afforded an adequate medical opinion prior to adjudication. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from August 2020 to the present. In completing the above, the AOJ must ensure that all eye images currently located in VistA Imaging are associated with the Veteran's claims folder in a way that the records are reviewable by the AOJ and the Board. 2. After the above development is completed, obtain a medical opinion concerning the nature of the Veteran's service-connected bilateral glaucoma suspect, claimed as ocular hypertension. No additional examination is necessary, unless the clinician determines an examination is necessary to provide the requested opinions. Any diagnostic tests necessary to provide the requested opinions should be accomplished. The clinician must review the Veteran's claims folder. The clinician must: (a.) Opine whether the Veteran has a diagnosis of glaucoma. (b.) If so, opine whether the Veteran's diagnosis of glaucoma is a continuation or progression of his service-connected bilateral glaucoma suspect, claimed as ocular hypertension In providing these opinions, the Veteran was assessed with glaucoma suspect with anatomic narrow occludable angles and underwent a right eye iris laser iridotomy on January 17, 2020 and left eye iris laser iridotomies on February 3, 2020 and February 10, 2020, which are used to treat closed or narrow angle glaucoma. The clinician should provide a complete rationale for all opinions expressed. 3. Obtain a medical opinion from an appropriate clinician regarding the nature and etiology of the Veteran's left ankle disability. No additional examination is necessary, unless the clinician determines an examination is necessary to provide the requested opinions. The clinician must review the Veteran's claims folder. The clinician must: (a.) Identify all current left ankle disabilities found to be present. Obtain from the Veteran all functional limitations caused by his left ankle symptoms, including pain and weakness, and including any impact on his ability to work. (b.) Opine whether it is at least as likely as not (50 percent probability or greater) that any diagnosed left ankle disability, to include pain and weakness resulting in functional impairment of earning capacity, had its clinical onset during his active service or is related to an in-service injury, event, or disease, including a March 1983 ankle injury. In providing these opinions, the clinician must consider the lay statements contained in the Veteran's claims folder concerning his reported and observed symptoms during and after his active service. The clinician should provide a complete rationale for all opinions expressed. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.