Citation Nr: 21027447 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 13-26 907 DATE: May 5, 2021 REMANDED Entitlement to service connection for a bilateral eye disorder, to include cataracts, glaucoma, and diabetic retinopathy, as secondary to service-connected diabetes mellitus, type II, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In May 2015, December 2019, and December 2020, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for a bilateral eye disorder, to include cataracts, glaucoma, and diabetic retinopathy, as secondary to service-connected diabetes mellitus, type II. As noted previously, the Board remanded the matter in May 2015 and December 2019 for additional development, to include, as relevant, obtaining an addendum opinion addressing the etiology of the Veteran's bilateral eye disorder. However, as VA opinions obtained on remand in December 2015, March 2016, January 2020, and June 2020 did not substantially comply with prior remand directives, the matter was again remanded in December 2020 to obtain another addendum opinion. However, as there still has not been substantial compliance with such directive, another remand is required. Stegall v. West,11 Vet. App. 268, 271 (1998). Specifically, in December 2020, the Board directed that an addendum opinion addressing whether the Veteran has, has had at any time since July 2010, diabetic retinopathy, even if such is asymptomatic or has resolved. In offering such opinion, the examiner was directed to consider and address the Veteran's November 2013 Comprehensive Diabetes Foot Examination Form, which noted a history of retinopathy, as well as his testimony at the November 2014 Board hearing that he had been diagnosed with diabetic retinopathy. The Board further directed that an opinion addressing whether the Veteran's glaucoma, cataracts, and/or diabetic retinopathy (if present) is caused or aggravated by diabetes mellitus, type II, be obtained and, in offering such opinion, the examiner was directed to consider and address the treatise evidence submitted by the Veteran in May 2014 discussing the relationship between diabetes and eye disorders. Pursuant to the December 2020 remand, the Veteran underwent a VA diabetes mellitus examination in February 2021, and addendum opinions were obtained in February 2021 and March 2021. Specifically, in February 2021, the VA examiner noted that, she had reviewed, as relevant, the May 2014 treatise evidence, which the possibility of a relationship between diabetes and eye disorders, and opined that the Veteran's claimed bilateral eye disorders were less likely than not proximately due to or the result of his service-connected diabetes mellitus, type II. In support of such opinion, she noted that, based on a review of the record, the Veteran's cataracts were more likely than not due to the natural aging process of the eyes as his diabetes was well controlled and the cataracts were not documented as cortical cataracts. The examiner further indicated that his cataracts were not aggravated as they progressed due to natural aging and were successfully treated surgically. She also noted that the Veteran's glaucoma is not related to his diabetes as such is open angle and not neovascular, the latter of which is due to diabetes, and his diabetes is well controlled. Further, the examiner found that no diagnosis of proliferative diabetic retinopathy was noted. Consequently, she concluded that it is less likely than not that the Veteran's glaucoma, cataracts, and/or diabetic retinopathy is caused or aggravated by diabetes mellitus, type II. In March 2021, the examiner noted that she had reviewed, as relevant, the November 2013 Comprehensive Diabetes Foot Examination Form, which noted a history of retinopathy, and the Veteran's November 2014 Board hearing testimony that he had been diagnosed with diabetic retinopathy), but found that, as per other eye examinations reviewed in the file, it cannot be confirmed that the Veteran ever had a diagnosis of diabetic retinopathy, and his Hgaba1c levels were within good range. However, while the February 2021/March 2021 VA examiner reviewed the evidence requested by the Board, she did not address it as directed. In this regard, such is particularly important as the cited evidence is favorable to the Veteran's claim as it suggests the presence of diabetic retinopathy as well as a relationship between his bilateral eye disorder and diabetes mellitus, type II. Consequently, the Board finds that another remand is necessary so as to obtain an addendum opinion that specifically considers and addresses such relevant evidence as directed in the prior remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the matter is REMANDED for the following action: Return the record, to include a copy of this Remand, to the January 2020/June 2020/February 2021/March 2021 VA examiner who offered opinions as to the etiology of the Veteran's bilateral eye disorder for an addendum opinion, or an appropriate substitute if she is unavailable. Following a review of the record, the examiner should address the following inquiries: (A) State whether the Veteran has, has had at any time since July 2010, diabetic retinopathy, even if such is asymptomatic or has resolved. If it is not possible to make this determination without additional examination of the Veteran, then such should be conducted. In offering such opinion, the examiner must consider and address the Veteran's November 2013 Comprehensive Diabetes Foot Examination Form, which noted a history of retinopathy, as well as his testimony at the November 2014 Board hearing that he had been diagnosed with diabetic retinopathy. In order to substantially comply with this directive, it will not be sufficient to simply include the November 2013 Comprehensive Diabetes Foot Examination Form and/or the November 2014 Board hearing testimony in the list of evidence considered. The examiner must specifically address this evidence in his or her opinion and provide a rationale for why he or she agrees or disagrees with the findings noted therein. (B) Offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's glaucoma, cataracts, and/or diabetic retinopathy (if present) is caused or aggravated by diabetes mellitus, type II. For any aggravation found, the examiner should state, to the best of his/her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. In offering this opinion, the examiner must consider and address the treatise evidence submitted by the Veteran in May 2014 discussing the relationship between diabetes and eye disorders. In order to substantially comply with this directive, it will not be sufficient to simply include the May 2014 treatise evidence in the list of evidence considered. The examiner must specifically address this evidence in his or her opinion and provide a rationale for why he or she agrees or disagrees with the findings noted therein. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dawn A. Leung, 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.