Citation Nr: 21029372 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 13-29 632 DATE: May 13, 2021 REMANDED Entitlement to service connection for a left eye disability, to include as secondary to shell fragment wounds and/or service-connected conditions is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1950 to August 1952. The Veteran died in January 2021. The Veteran's wife has been substituted as the Appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified at a Central Office hearing before the undersigned Veterans Law Judge in April 2016. The Veteran's wife, M.D., as well as two observers, E.W., and J.W., were present as witnesses. A transcript of the hearing is of record. The Board remanded this matter in June 2016, August 2017, and February 2019. In a December 2019 decision, the Board denied, in pertinent part, entitlement to service connection for a left eye disability. The Veteran appealed the Board's December 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Order, the Court vacated, in part, the December 2019 Board decision, and remanded the issue of service connection for a left eye disability to the Board for further development. As noted above, the Veteran unfortunately died in January 2021. At the time, the Appellant had not been confirmed as a valid substitute and in a March 2021 Board decision, the Veteran's claim was dismissed. Pursuant to a subsequent March 2021 RO determination, the Veteran's wife was determined a valid substitute. Therefore, this matter is once again before the Board. Entitlement to service connection for a left eye disability, to include as secondary to shell fragment wounds and/or service-connected conditions is remanded. In an October 2020 Joint Motion for Remand (JMR), the parties before the Court stated that the VA opinion relied upon by the Board was inadequate to decide claim. Specifically, the Court noted that the August 2019 VA examiner stated that the Veteran's "left eye vision started to decline a few months after his combat injury in 1951...his separation physical in Aug[ust] 1952 shows vision left eye corrected to 20/20." The examiner concluded that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Court found though that the August 2019 VA examiner failed to acknowledge that the Veteran had 20/20 vision without correction upon entrance into service in August 1950. The JMR stated that because the examiner did not mention or discuss the August 1950 entrance examination when entering the service, the opinion was inadequate. The Court directed the Board to obtain a new medical opinion discussing the Veteran's vision on the August 1950 entrance and August 1952 separation examinations, in addressing whether the Veteran's left eye disability was at least as likely as not incurred in or related to his service. The Board is bound by these findings by the Court. Therefore, on remand, a clarifying VA opinion must be obtained to determine the etiology of the Veteran's left eye disability. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Appellant assist with locating these records, if possible. Associate these records with the claims file. 2. Then, obtain a clarifying VA opinion from an appropriate examiner to determine the etiology of the Veteran's left eye disability. The claims file and a copy of this remand must be made available for review. Following a review of the pertinent evidence, the examiner must determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left eye disability is related to service. (Continued on the next page) 3. A clear rationale must be provided for all opinions expressed. The examiner must consider and discuss the Veteran's August 1950 entrance examination showing that the Veteran had 20/20 vision in both eyes without correction as well as the August 1952 separation physical showing the left and right eye vision as 20/40 corrected to 20/20. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 4. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Appellant and her representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saudiee Brown 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.