Citation Nr: A21020497 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 211026-193760 DATE: December 23, 2021 REMANDED Service connection for a right eye injury, and defective vision in both eyes, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1966 to January 1970. The Veteran provided testimony at an October 2017 Board hearing. A complete transcript is of record. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.),131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This appeal was most recently before the Board in April 2020. The Board found that remand was necessary for a new VA examination. After the requested development took place, a supplemental statement of the case (SSOC) was issued in September 2020, denying the service connection claim. VA received the Veteran's request for higher-level-review in October 2020. The Regional Office (RO) then issued the higher-level-review rating decision in February 2021, denying the service connection claim. The Veteran opted into the AMA by filing a VA Form 10182, selecting direct review, following the issuance of the February 2021 higher-level review rating decision. Of note, the September 2020 SSOC serves as the decisional document which closes the record for adjudication. That is, by requesting a higher-level-review, the Veteran accepted that the Board's review would be limited to evidence that was of record as of September 30, 2020, the date of the SSOC. Service connection for eye injury, right and defective vision, both eyes is denied. is remanded. The Veteran asserts that his diffuse unilateral subacute neuroretinitis (DUSN) is related to his active-duty service; and his glaucoma and cataracts are due to his active-duty service, or as secondary to the service-connected diabetes. In its April 2020 remand, the Board noted that a VA examination was conducted in December 2019, but that the nexus opinion reflected significant uncertainty regarding the etiology of the Veteran's eye disability and remanded the claim for a new VA examination. In the subsequent August 2020 examination, the examiner confirmed the diagnosis for DUSN of the right eye and bilateral glaucoma and cataracts after an in-person examination. After a review of the Veteran's claims file, the examiner provided a negative nexus opinion. The examiner explained that the Veteran's DUSN occurred after discharge. The examiner noted that the Veteran's vision was 20/20 on discharge. Regarding the cataracts and glaucoma, the examiner explained that they are unrelated to service because they are developmental changes occurring years after the Veteran's active-duty service and are normal aging changes that have occurred. The examiner reported that he did not believe that any of the three diagnosed conditions were related to his service because his vision was tested before leaving service and was correctable to 20/20. The examiner acknowledged that a nematode was the most likely cause of the DUSN, but did not relate the nematode exposure to the Veteran's service in Vietnam. VA received the Veteran's VA Form 10182 in October 2021. The Veteran's attorney also submitted additional argument with the NOD, including the assertion that the Veteran met the three components required to establish service connection; that he had a current disability, that his lay evidence (that he began to see spots in his eye after leaving service) established an in-service incurrence, and his lay statements of experiencing a continuity of symptomatology established the third element of service connection. The representative also asserted that the August 2020 VA examiner's opinion was inadequate for adjudication purposes. First, the representative pointed out that the examiner did not provide an opinion regarding whether the cataracts and glaucoma was secondary to the service-connected diabetes. Second, the VA examiner did not provide an explanation as to why the Veteran's 20/20 vision upon leaving service meant that the DUSN was not related to service. Third, the examiner did not comment on the Veteran's report that he had a spot in his eye in the 1970s. Lastly, the representative asserted that the examiner premised his negative opinion on the fact that the DUSN was diagnosed after discharge from service, and did not explain why the passage of time between the Veteran's active-duty service and his diagnosis for DUSN was relevant to the nexus opinion. Regarding the Veteran's representative's assertion that the Veteran has established service connection by way of continuity of symptomatology, the Board does not agree. In a January 2014 statement, the Veteran reported that he has been blind in his right eye since the 1970s. In the same statement, the Veteran also reported that he told a doctor that he had a tiny spot on his right eye. Here, the Board finds that such a statement does not establish an in-service incurrence. The Board agrees that the statement suggests a lay observation of onset of symptoms shortly after service, but not within the required time period for which service connection would be warranted. The Veteran did not report experiencing in-service right eye symptoms, nor has it been established that he experienced the reported eye symptoms within a year of his separation from the military. As such, the Board finds that service connection is not warranted, even on a presumptive basis. However, the Board agrees with the Veteran's representative that the August 2020 VA examiner's opinion was inadequate for adjudication purposes. Because the August 2020 VA examiner's opinion is inadequate, a pre-decisional duty to assist error, remand is required for an addendum VA opinion. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran's right eye diffuse unilateral subacute neuroretinitis (DUSN), bilateral cataracts, and bilateral glaucoma. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner is asked to furnish opinions with respect to the following: a) Is it at least as likely as not (a 50 percent or greater probability) that the diagnosed DUSN manifested in service or is otherwise related to an in-service injury, event, or disease? A complete rationale should be provided for this opinion. The examiner should discuss the importance of the Veteran's 20/20 vision at service separation, and what implication that has on the medical nexus. The examiner should also discuss the Veteran's report of being blind in the right eye since the early 1970s and telling a doctor about a spot in his right eye and what implication that has on the medical nexus. If there is a reliance on the passage of time between the Veteran's service and the earliest records documenting DUSN in providing the nexus opinion, the examiner should discuss those reasons. b) Is it at least as likely as not (50 percent or more probability) that the Veteran's cataracts and/or glaucoma was caused by his service-connected diabetes mellitus, type II? Why or why not? c) Is it at least as likely as not (50 percent or more probability) that the Veteran's cataracts and/or glaucoma was aggravated (made worse) by his service-connected diabetes mellitus, type II? Why or why not? If aggravation is found, the specialist should identify a baseline level of severity of diabetes mellitus by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the diabetes mellitus. If such cannot be done, it should be explained why. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.