Citation Nr: 22012597 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 13-22 124A DATE: March 4, 2022 REMANDED Entitlement to service connection for a bilateral eye condition is remanded. REASONS FOR REMAND The Veteran had active service from March 1964 to March 1967. He appealed a May 2017 rating decision by the Agency of Original Jurisdiction (AOJ). This matter was remanded for additional development in May 2020, March 2021, and November 2021. For the following reasons another remand is necessary. The November 2021 remand determined that the April 2017 examination report, October 2020 examination report, and July 2021 opinion were inadequate for rating purposes. The Board instructed the AOJ to obtain an opinion addressing whether any of the Veteran's eye disorders were related to service, to include documented treatment for eye conditions as well as the Veteran's conceded herbicide exposure. The AOJ obtained an opinion in November 2021. The reviewing clinician opined that the Veteran's eye disorders were not related to his documented in-service eye injuries. However, the clinician did not address whether any of the conditions were caused by the Veteran's presumed herbicide exposure. The Veteran's personnel records show that he had service in Vietnam from October 1966 to February 1967; thus, herbicide exposure is presumed. 38 C.F.R. § 3.307(a)(6)(iii). Moreover, the Veteran has expressly asserted that his eye conditions are due to herbicide exposure. See January 2017 VA Form 21-526EZ and May 2017 Notice of Disagreement. As none of the opinions obtained have addressed this contention, remand is necessary for this theory of entitlement to be expressly considered by an examiner. Although no eye conditions benefit from herbicide exposure presumptions, service connection on a direct basis may be possible. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). The Board further notes that the November 2021 opinion stated that the Veteran's convergence insufficiency, which was noted in a June 1965 service treatment record, "is most likely congenital." The use of the present tense suggests the condition still exists; however, the November 2021 clinician did not list the disorder as one of the Veteran's current eye conditions. Given this ambiguity, remand for a new eye examination is appropriate to account for all present eye disorders. This matter is REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate examiner, who has not previously reviewed this case, to determine the nature and etiology of any eye condition. The entire claims file, including a copy of this remand, must be made available to the examiner, and the examiner should confirm that such records were reviewed. Following review of the record and examination of the Veteran, the examiner should identify all eye conditions present during the appeal period. The examiner should specifically determine whether the Veteran has convergence insufficiency. For each identified eye condition, the examiner is asked to respond to the following inquiries: (a.) Is it at least as likely as not that the Veteran's eye condition is solely attributable to a congenital disease (meaning the condition can improve or deteriorate) instead of a congenital defect (meaning the condition is static in nature, and cannot generally improve or deteriorate)? (b.) If deemed a congenital disease, is it at least as likely as not that the Veteran's eye condition was aggravated or worsened by the Veteran's time on active duty service? If so, the examiner should discuss the natural progression of the condition. (c.) If deemed a congenital defect, does the Veteran have a superimposed eye disease or injury? If so, is it at least as likely as not that the Veteran's superimposed eye disease or injury was either incurred in, or is otherwise attributable to, the Veteran's active duty service? (d.) If the Veteran has an eye condition that is not a congenital disease or defect, is it at least as likely as not that the condition was either incurred in, or is otherwise attributable to, the Veteran's active duty service, to include as due to in-service eye injuries and treatment and/or the Veteran's presumed exposure to herbicide agents? In responding to the above queries, the examiner's attention is directed to service treatment records from June 1965 documenting astigmatism and convergence insufficiency, July 1966 noting the identification and removal of foreign body in the right eye, and January 1967 noting an injury to the orbital region of the left eye. The examiner must also address the Veteran's presumed herbicide exposure in evaluating whether any eye condition is related to service. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. After the above has been completed, readjudicate the claim. If the benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.