Citation Nr: 21026641 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-36 016 DATE: May 3, 2021 REMANDED Entitlement to service connection for left aphakic sensory exotropia, claimed as left eye blindness (left eye disability), to include on an aggravation basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1953 to May 1955. This matter comes before the Board of Veteran's Appeals (Board) from a July 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. This matter was previously before the Board in December 2019 when the claim was remanded for development. The Board finds the December 2019 remand directives have not been substantially complied with, and the matter must be remanded again. Stegall v. West, 11 Vet. App. 268, 271 (1998). As a threshold matter, the Board notes the Veteran's service treatment records (STRs) and other personnel records are presumed destroyed in the National Personnel Records Center (NPRC) fire in 1973. See request for information dated September 1985. Thus, a heightened obligation to assist the claimant in the development of his case applies. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Entitlement to service connection for left aphakic sensory exotropia, claimed as left eye blindness (left eye disability), to include on an aggravation basis, is remanded. The Veteran seeks service connection for a left eye disability. In favor of his claim, the Veteran asserts that his left eye disability was either incurred in or aggravated by his service. In specific the Veteran asserts that while deployed in Germany in 1954, he crashed an ambulance and that his left eye was injured in the crash. The Veteran also asserted that he did not immediately notice the injury but that a week later he sought medical treatment due to pain and the doctor who saw him said he had lost his vision. He also stated that his driver's license was taken away as a result of the accident but that he was not medically discharged from service because his time was up. See hearing transcript. The Board notes that although the Veteran's complete STRs and other personnel records are unavailable, the Veteran's DD-214, which is of record, notes the Veteran earned an occupation medal for his service in Germany. See DD-214. By way of history, the Veteran's claim of service connection for a left eye disability had been previously denied in a January 1976 rating decision, and the denial had been continued in rating decisions dated January 1991, November 2007, and November 2013. In July 2016, another rating decision denied reopening the claim because no new and material evidence had been presented. The Veteran appealed that decision and has continuously pursued his appeal. In February 2019, the Board reopened the claim of service connection for a left eye disability finding new and material evidence and remanded it for a VA examination and medical opinion. In this decision, the Board found that as the Veteran's STRs and personnel records were presumed destroyed in the NPRC fire of 1973, that the presumption of soundness applied to the Veteran's vision. In its remand directives, the Board requested the examiner to note all diagnoses pertaining to the Veteran's left eye and to provide a nexus opinion, on direct service connection, for each of them. The Board also requested the examiner to opine whether the Veteran's left eye disability clearly and unmistakably existed prior to his service, and if so, whether the disability clearly and unmistakably was not aggravated by the Veteran's service, to include a vehicle accident in Germany where the Veteran asserts his left eye was injured in 1954. For the purposes of the opinion requested, the examiner was instructed to assume that the vehicle accident in Germany had happened. The examiner was also requested to review the June 1977 special eye evaluation, an October 1985 psychiatric and physical examination and other early physical findings related to the Veteran's report of being struck in the left with a "green walnut" as a child. See February 2019 Board remand. In September 2019, pursuant to the Board remand directives, the Veteran was administered an Eye Conditions Disability Benefits Questionnaire (Eye DBQ). The most recent diagnoses of phthisis bulbi and corneal opacification for the left eye were noted as well as a 1977 diagnosis of aphakia in the left eye and a 1990 diagnosis of exotropia in the left eye. The examiner also noted that the diagnosis of macular degeneration affected only the right eye. In terms of the medical history, the examiner noted the Veteran's reports of being told by his mother that he had been hit in the left eye with a green walnut at age 45, that the injury required surgery and that he did not lose vision as a result of the injury. The examiner also noted that the Veteran was involved in an automobile accident in 1954, that he did not seek immediate medical care but that one week after the accident he sought medical care complaining of pain and tearing. The Veteran reported that the doctor noted a scar in the left eye and offered no treatment. The Veteran reported that one month after the accident, he developed decreased vision in the left eye, that he did not seek treatment for that loss of vision and made no further visits to the eye doctor while in service. See Eye DBQ of September 2019. The Board notes that the left eye injury with a green walnut has been reported to have occurred when the Veteran was a child and not when he was 45 years old. This notation seems to be an error on the part of the examiner. Following the examination, the examiner subscribed 2 medical opinions. In one, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service event. In favor of this opinion, the examiner noted the June 1977 eye examination, which included a statement from the Veteran of being hit in the left eye when he was 6 or 7 years old by a green walnut thrown by his brother. That the injury required surgery with left cataract extraction in the 1940s and it left him blind in the left eye. He also noted the October 1985 psychiatric evaluation that included the Veteran's report of having been struck in the left eye with a green walnut in the 1940s and losing vision. This 1985 report also contained a Veteran's statement of having been accepted into service despite the Army knowing that he was blind in one eye. The examiner also noted having reviewed the Veteran's hearing testimony and noted that he presumed the accident in 1954 had occurred for purposes of the opinion. Based on all of this, the examiner opined that it was less likely than not that the Veteran's in-service accident caused or aggravated his left eye disability of blindness. The examiner also noted that in June 1997 the Veteran was found to be aphakic in his left eye and that uncorrected aphakia at age 6 or 7 always leads to amblyopia with vision no better than counting fingers. He also noted that the scarring that the Veteran reported the physician saw when he sought medical treatment following his vehicle accident in service was indicative of the condition pre-existing service as a corneal injury takes more than one week to scar. He also noted that although the Veteran claimed suffering profound vision loss as a result of the ambulance accident, that he did not seek medical care at any subsequent time while in service. See medical opinion for direct service connection, dated August 2019 and associated with the claims file in September 2019. The examiner also opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In favor of this opinion, the examiner noted the Veteran's report of something flying into his eye in the in-service vehicle accident and that the physician who examined him soon after the accident noted scarring in the left eye but no injury requiring treatment. The examiner opined that it was more likely than not that there was no significant trauma to the eye as a result of the accident and that the scarring noted is evidence that the eye condition existed prior to the vehicle accident. The examiner also noted the Veteran's report of not having sought medical treatment at any other subsequent time while in service and that a reasonable man with no significant barrier to healthcare would have sought medical evaluation. Thus, the examiner concluded that the Veteran's left eye condition was not aggravated by service. See medical opinion for aggravation of a condition that existed prior to service, dated August 2019, and associated with the claims file in September 2019. Following this development and after a Supplemental Statement of the Case was issued, the appeal was returned to the Board. In December 2019, the Board remanded the claim for Stegall compliance with the February 2019 Board remand directives. The Board found that the medical opinions associated with the claims file in September 2019 did not provide an adequate rationale for the question on whether the Veteran's left eye condition was clearly and unmistakably not aggravated by the Veteran's service, to include the in-service vehicle accident, beyond its natural progression. Accordingly, the Board remanded the matter for an addendum medical opinion. The examiner was asked to opine, using the "clearly and unmistakably" language whether the Veteran's left aphakic sensory exotropia, claimed as left eye blindness, clearly and unmistakably pre-exist his active duty service and if so, whether there is clear and unmistakable evidence that the pre-existing condition did not undergo an increase in the underlying pathology during service. The examiner was also instructed to opine whether any increase in the severity of the Veteran's left eye condition during service was clearly and unmistakably due to the natural progress of the disability. Alternatively, if the condition was found by the examiner to not have clearly and unmistakably pre-existed service, the examiner was to opine whether the Veteran's left eye condition was at least as likely as not directly related to his active service. See December 2019 Board remand. In January 2020, pursuant to the Board's directives, new medical opinions subscribed by a different examiner, were associated with the claims file. This examiner noted having reviewed the remand letter, the 1985 evaluation as well as recent medical records. The examiner checked a box noting that the claimed condition which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service event, injury, or illness. In favor of this opinion the examiner noted the 1985 evaluation where the Veteran had stated that a green walnut had been thrown to his left eye in the 1940s and that he had a cataract removed from the eye. The examiner also noted the Veteran's statement of having entered the military in 1953 and that the military knew he was blind in the left eye. See medical opinion for aggravation of a condition that existed prior to service, dated January 2020. This examiner also provided 2 medical opinions regarding conflicting medical evidence. In one, the examiner noted that there are no medical records describing the Veteran's eye or his vision while in the military. The examiner noted that there is only a statement by a psychiatrist noting that the Veteran had been blind in the left eye on entering military service in 1953 and an eye exam in 1985 noting the Veteran had only light perception in the left eye. See medical opinion regarding conflicting medical evidence dated January 2020. In the second medical opinion regarding conflicting medical evidence, the examiner noted that as the Veteran had stated that he was one-eyed and blind in the left eye on entering the military, that it was more than likely that the eye became phthisical over time as a natural progress of the disability over 55 years. He also noted that there is no evidence in the Veteran's medical records that he had a trauma, disease or event that aggravated the natural course of the disease that was present when he entered the military. See medical opinion regarding conflicting medical evidence dated January 2020. Finally, the examiner also subscribed a medical opinion for direct service connection where he checked the box indicating that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In the rationale portion of the opinion, the examiner simply stated that it is less likely than not that the blindness and phthisis bulbi in the left eye was at all affected by his 2 years in the military service. No rationale was provided for this opinion. Based on the above, the Board finds that the prior remand instructions have not been substantially complied with and a remand is necessary. It is well established that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand order. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). As noted previously, the Board remanded the present appeal in December 2019 because the medical opinions of record did not comply with the previous remand instructions. Specifically, the Board noted that the medical opinions associated with the claims file in September 2019 did not address the question of whether there was clear and unmistakable evidence that the Veteran's condition had not been aggravated by his service, to include his claimed in-service incurrence. Thus, the Board remanded the matter for an addendum opinion to re-address the question of whether there was clear and unmistakable evidence that the Veteran's condition pre-existed service, and specifically, to address whether there was clear and unmistakable evidence that the claimed condition had not been aggravated by the Veteran's service, to include his claimed in-service incurrence of the vehicle accident in Germany, beyond the natural progression of the condition (emphasis added). Pursuant to the Board directives, new medical opinions were associated with the claims file in January 2020. However, these opinions are inadequate for adjudication purposes and do not substantially comply with the December 2019 remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall, supra. Specifically, the Board notes that although the examiner checked the box opining that the claimed condition clearly and unmistakably pre-existed service, and was clearly and unmistakably not aggravated by service beyond its natural progression; the examiner did not provide a complete rationale for the opinion expressed, he based his opinion on the absence of contemporaneous evidence in the record, and did not take into consideration the Veteran's lay statements regarding his in-service incurrence and symptomatology. Additionally, the opinion on direct service connection does not provide any rationale or supporting statement for the opinion expressed. Thus, it is also inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). The Board acknowledges that the examiner, in one of his January 2020 opinions regarding conflicting medical evidence, noted that it was more than likely that the Veteran's eye became phthisical over time as a natural progress of the disability over 55 years. However, the examiner did not provide a rationale for this statement and the statement itself does not properly address the question of whether there is clear and unmistakable evidence that the Veteran's left eye disability was not aggravated beyond its natural progression by service, to include his claimed in-service incurrence of a vehicle accident. In addition, the Board notes that the examiner's opinion did not apply the proper legal standard of "clear and unmistakable" (undebatable) evidence, which is required to rebut the presumption of soundness. 38 U.S.C. § 1111. Accordingly, the Board finds the claim must be remanded for Stegall compliance with prior Board directives. Specifically, the claim is remanded so that a new medical opinion addressing whether there is clear and unmistakable evidence that the condition pre-existed service and whether there is clear and unmistakable evidence that the condition was not aggravated by service, to include the Veteran's claimed in-service vehicle accident, beyond its natural progression. Both prongs of the question must be addressed in the opinion with a supporting rationale, the first prong being whether it pre-existed, and the second prong being whether it was aggravated. The examiner is asked to assume for the purposes of all the opinions expressed that the claimed in-service incurrence of the 1954 vehicle accident happened. The matter is REMANDED for the following actions: 1. Update existing medical records. Any response, including negative responses, must be associated with the claims file. 2. Request a new medical opinion pertaining to the Veteran's left eye disability. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the opinion. The examiner is asked to offer his/her opinion, after a review of the claims file, to include the Veteran's hearing testimony and without relying on the existing inadequate VA medical opinions of record. a. Did the Veteran's left eye disability, claimed as left eye blindness clearly and unmistakably pre-exist his active duty service? The examiner is directed to clearly identify the evidence used to make this determination and is requested to use the "clearly and unmistakably (undebatable)" language in the rationale portion of the opinion to prevent any ambiguities. i. If so, is there clear and unmistakable evidence that the pre-existing left eye disability, did not undergo an increase in severity (of its underlying pathology) during service? The examiner must provide a thorough explanation to support any opinion rendered and is requested to use the "clearly and unmistakably (undebatable)" language in the rationale portion of the opinion to prevent any ambiguities. This question of aggravation must be addressed in the opinion and supported by a complete rationale. ii. If an increase in the severity of the Veteran's left eye disability during service is found, was such increase clearly and unmistakably due to the natural progression of the disability? The examiner must provide a thorough explanation to support any opinion rendered. b. If the condition is not found to have clearly and unmistakably pre-existed service, the examiner is asked to opine whether is it at least as likely as not (a 50 percent or higher probability) that any left eye disability that the Veteran has had at any time since his discharge from service is directly related to his active service. In addressing these questions, the examiner must presume that the 1954 accident occurred for purposes of the requested medical opinions, as the Veteran's STRs are unavailable and presumed destroyed. He/she must also take into consideration all of the evidence of record, to include post-service medical records, and specifically the June 1977 special eye evaluation, October 1985 psychiatric and physical examination, and other early physical findings related to the Veteran's report of being struck in the left eye with a "green walnut" as a child, as well as the Veteran's statements concerning his experienced symptoms, accepted medical principles, and objective medical findings. All opinions expressed must be accompanied by a supporting rationale. If the examiner cannot provide the above requested opinions, the examiner is advised that he/she must explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies). If the examiner cannot provide the opinion because further information is needed to assist in making the determination, all reasonable steps to obtain the missing information must be exhausted before concluding that the opinion cannot be provided. The term "clear and unmistakable" is an onerous standard requiring that the evidence be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003). The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. The examiner must support any opinion rendered with a detailed rationale. 3. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.