Citation Nr: 21025098 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-05 700 DATE: April 27, 2021 REMANDED Entitlement to service connection for an eye disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1952 to September 1954 and from October 1954 to November 1973. This matter comes to the Board of Veterans’ Appeals (Board) from a June 2013 rating decision which, in pertinent part, found that new and material evidence had not been received to reopen a claim of entitlement to service connection for an eye disability. In December 2017, the Board remanded the matter for adjudication as to whether there was clear and unmistakable error in a July 1998 rating decision which denied a claim of service connection for an eye disability. In April 2020, the Board found that new and material evidence had been submitted to reopen a claim of service connection for an eye disability and remanded the matter for further development, to include obtaining a VA examination and medical opinion. Entitlement to service connection for an eye disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for an eye disability at this time. The Veteran contends that service connection is warranted for an eye disability. Specifically, he contends that he was seen in the emergency room during service to remove paint from his left eye and that he has had vision problems ever since. Refractive errors of the eyes are congenital or developmental defects and not a disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. Thus, in the absence of a superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.03(c), 4.9. The Veteran’s service treatment records, including October 1954, September 1958, March 1967, and October 1968 examinations, are silent for complaints of vision problems or diagnosis and treatment of refractive errors. In May 1969, the Veteran sought emergency treatment after paint remover accidently splashed in his left eye. Fluorescein staining showed no corneal defect and the Veteran was diagnosed with chemical conjunctivitis. His eyes were thoroughly irrigated, and he was prescribed sulfacetamide and told to return if needed. An April 1970 ophthalmologic consultation reflects the Veteran was diagnosed with refractive error and prescribed glasses. A May 1972 vision examination also noted the Veteran was photophobic. The Veteran was afforded a VA examination and medical opinion in October 2020. While the examiner diagnosed the Veteran with left eye pseudophakia, right eye nuclear cataract, bilateral dermatochalasis, and bilateral corneal arcus, and opined that these were less likely than not incurred in or caused by service, the examiner did not provide an opinion on the Veteran’s visual acuity, to include whether there was aggravation or additional disability due to disease or injury superimposed upon such defect during service. Additionally, the examiner noted a medical history of and diagnoses of left eye pseudophakia, right eye nuclear cataract, bilateral dermatochalasis, and bilateral corneal arcus as of October 20, 2020, or the date of the examination. Therefore, it is not clear whether the examiner considered a June 1998 VA examination showing diagnoses of left eye pseudophakia and right eye cataract, more than 20 years prior to the October 2020 VA examination, when opining as to the etiology of the Veteran’s eye disability. As such, a remand is required for a new VA examination and medical opinion. Finally, evidence indicates that there may be outstanding relevant VA treatment records. The earliest VA treatment records associated with the claims file are dated in April 2016. The Board notes that a January 2016 rating decision indicates that VA treatment records from San Juan from June 2009 to December 2015 were considered, as well as VA treatment records from June 1998. These VA treatment records have not been associated with the Veteran’s claims file. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. The matter is REMANDED for the following actions: 1. Obtain the Veteran’s complete VA treatment records for the period prior to April 2016, and from March 2020 to present. 2. Schedule the Veteran for an examination by an appropriate clinician for his eye disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: For any bilateral eye diagnoses that are classified as refractive errors, is it at least as likely as not that the disability suffered a superimposed injury or disease during the Veteran’s active duty service? For any bilateral eye diagnoses that are not classified as refractive errors, to include left eye pseudophakia, right eye nuclear cataract, bilateral dermatochalasis, and bilateral corneal arcus, is it at least as likely as not incurred in or otherwise related to active duty service? In addressing these questions, the examiner is asked to consider service treatment records prior to May 1969 showing normal vision, a May 1969 record in which the Veteran splashed paint remover into his left eye, April 1970 and May 1972 vision examinations showing refractive errors and photophobia, and diagnoses of left eye pseudophakia and right eye cataract as early as June 1998. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service injury and 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 injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3. After completing the above, and any other development as may be indicated, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.