Citation Nr: 22071283
Decision Date: 12/22/22	Archive Date: 12/22/22

DOCKET NO. 17-60 235
DATE: December 22, 2022

REMANDED

Entitlement to service connection for an eye disability, to include entitlement to compensation under 38 U.S.C. § 1151 for additional disability due to a December 2015 yttrium aluminum garnet (YAG) capsulotomy performed at a Department of Veterans Affairs (VA) Medical Facility (VAMC), is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 1945 to March 1947. 

Although a June 2019 BVA hearing was scheduled, the Veteran withdrew his request for a Board hearing in May 2019.

This case was previously before the Board in November 2019 and September 2020, when it was remanded for development.  An August 2022 supplemental statement of the case was most recently issued and the claim is once again before the Board.

The Board notes that the issue on appeal has most recently been characterized as entitlement to compensation under 38 U.S.C. § 1151.  In the December 2022 Appellant's Post-Remand Brief, the Veteran, through his representative, indicated that he was also seeking direct service connection for his claim.  Therefore, the Board has once again expanded the Veteran's claim to include entitlement to service connection for an eye disorder on a direct basis.  See Robinson v. Shinseki, 557 F.3d 1355 (2009) (indicating the Board is required to address all theories of entitlement raised by the record).

1. Entitlement to service connection for an eye disability, to include entitlement to compensation under 38 U.S.C. § 1151 for additional disability due to a December 2015 YAG capsulotomy performed at a VAMC, is remanded.

As noted above, the Veteran's claim has been expanded to reinclude the theory of direct service connection.  The Board finds that the 38 U.S.C. § 1151 issue should be considered concurrently with the issue of entitlement to service connection for an eye disability.  This avoids piecemeal adjudication of the claims with common parameters.  See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). In this case, if the issue is granted on a direct service connection basis, then the 38 U.S.C. § 1151 claim becomes moot.  Accordingly, the issue of entitlement to compensation under 38 U.S.C. § 1151 for additional disability, due to a December 2015 YAG capsulotomy is intertwined with the direct service connection claim.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together).

The Board finds that a VA examination and opinion, addressing direct service connection, should be obtained.  38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The matters are REMANDED for the following action:

Schedule the Veteran for an examination to determine the nature and etiology of his eye disability. Any necessary testing should be conducted.  The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred. 

The examiner is asked to provide an opinion as to whether it is at least as likely as not that any eye disability had its onset during the Veteran's active service or is otherwise causally related to his service.

Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record.  If the examiner finds it impossible to provide any requested opinions without resort to speculation, he or she should so indicate and explain why such a finding is made. 

The examiner is advised that the Veteran is competent to report his symptoms and history; and such reports must be considered in formulating any opinions.  The examiner should provide a rationale for rejecting any reports by the Veteran.

 

 

Caroline B. Fleming

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. M. Clark, 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.