Citation Nr: 21027829 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 10-31 842A DATE: May 6, 2021 REMANDED Entitlement to service connection for an eye disability, to include as secondary to service-connected diabetes mellitus, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to December 30, 2008 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1965 to April 1967, to include service in Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in San Juan, the Commonwealth of Puerto Rico. This case was previously before the Board in December 2016 and February 2018. In December 2016, the Board, in pertinent part, granted TDIU, effective August 24, 2010; reopened a previously denied claim for service connection for an eye disability; and remanded the underlying claim for service connection for an eye disability to the agency of original jurisdiction (AOJ) for additional development. In April 2017, while the case was in remand status, the AOJ, in pertinent part, implemented the award of TDIU, making it effective from August 24, 2010 to December 30, 2011 (the date the Veteran became entitled to a total (100 percent) combined schedular rating). The prior denial of service connection for an eye disability was confirmed and continued and the case was returned to the Board. In February 2018, the Board took jurisdiction of the matter of the Veteran's entitlement to a TDIU prior to August 24, 2010 and after December 30, 2011, as part of parcel of his then-pending claim for a higher rating for diabetes mellitus. The Board granted a TDIU for the period on appeal from December 30, 2011. The matter of the Veteran's entitlement to a TDIU prior to August 24, 2010, and his claim for service connection for an eye disability, were remanded to the AOJ for further development. In November 2020, after taking further action, the AOJ made the Veteran's TDIU award effective from December 30, 2008. The prior decisions were otherwise confirmed and continued, and the case was returned to the Board. 1. Entitlement to service connection for an eye disability, to include as secondary to service-connected diabetes mellitus, is remanded. With regard to the Veteran's eye disabilities, in its February 2018 remand, the Board directed that the AOJ obtain a supplemental medical opinion as to whether the Veteran's diagnosed disabilities were aggravated by his service-connected diabetes mellitus. The AOJ obtained a VA medical opinion in August 2020. The examiner opined that it was less likely than not that any eye condition was aggravated by the Veteran's service-connected diabetes. In doing so, however, the examiner did not provide a clear rationale for the opinions offered. With respect to dermatochalasia, for example, the examiner simply stated that the condition was age related and then asserted that it was not caused or aggravated by diabetes, without further explanation. Similarly, the examiner asserted that the Veteran's bilateral nasal pinguecula and cataracts had not been caused or aggravated by diabetes, but did not provide clear reasons for that conclusion. As to blepharitis, dry eye, and mild non-proliferative diabetic retinopathy, the examiner noted that the conditions had resolved and/or were no longer active. Under applicable law, secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that secondary service connection does not require permanent worsening of the secondary condition; rather, any incremental increase in disability is sufficient, regardless of its permanence. See Ward v. Wilkie, 31 Vet. App. 233 (2019). In addition, the fact that a disability resolves prior to final adjudication does not render moot questions with respect to nexus if the disability at issue was present either at the time of the filing of the claim for service connection, or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Because the examiner did not provide a clear opinion, with supporting rationale, as to whether any of the eye disabilities manifested during the period on appeal were aggravated by diabetes, if even only on a temporary basis, an addendum opinion is required. 2. Entitlement to a TDIU prior to December 30, 2008 is remanded. With regard to the TDIU claim, there appear to be outstanding Social Security Administration (SSA) records that may be pertinent to the Veteran's claim. The Veteran has made various assertions the he has been in receipt of SSA disability benefits. See, e.g., January 2009 TDIU application (VA Form 21-8940); August 2010 Income-Net Worth and Employment Statement (VA Form 21-527). Consistent with those assertions, SSA data inquiries reveal that he has been in receipt of Title II disability benefits. In Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010), the United States Court of Appeals for the Federal Circuit held that as long as a reasonable possibility exists that SSA records may be relevant to a veteran's claim, VA must assist in obtaining the records. Because the records from SSA could contain information pertinent to the issue on appeal, efforts should be made to procure them. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). These matters are REMANDED for the following action: 1. Ask the SSA to provide copies of any relevant records in its possession pertaining to its consideration of the Veteran's application for SSA disability benefits, to particularly include any relevant medical records considered, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence obtained, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran should be notified. 2. After the foregoing development has been completed, obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's eye disabilities. The opinion should be obtained from a clinician other than the examiner who previously offered opinions in the case in January 2017 and August 2020, if feasible. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any eye disabilities that have been present since December 2008 (even if since resolved)to include maculopathy, dermatochalasia, blepharitis, dry eye, cataracts, pinguecula, vitreous floaters, and diabetic retinopathywere aggravated (i.e., permanently or temporarily worsened beyond natural progression) by the Veteran's service-connected diabetes mellitus. In so doing, the examiner should consider that although a particular disability may be caused by or the result of aging, the question of whether an age-related disability has been permanently or temporarily worsened beyond natural age-related progression by diabetes must nevertheless be addressed. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, 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.