Citation Nr: 22013390 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 14-15 041 DATE: March 9, 2022 REMANDED 1. Entitlement to service connection for an eye disorder, to include diabetic retinopathy and cataracts, is remanded. 2. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service from July 1970 to January 1972. These matters come before the Board of Veterans' Appeals (Board) on an appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Most recently, in April 2019, the Board remanded the Veteran's claims for additional development. For the reasons described below, there has not been substantial compliance with the Board's remand directives. Such noncompliance is error on the part of the originating agency. Moreover, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Board must once again remand the Veteran's appeal. Service Connection Eye Disorder The Board's April 2019 remand determined that new nexus opinions regarding the claimed eye disorder were warranted. The examiner was directed to provide opinions for both direct service connection and secondary service connection, including aggravation. An addendum opinion was provided in December 2019. However, the rationale for secondary service connection was identical to the rationale provided for direct service connection. The examiner did not specifically address the Veteran's contentions regarding these two different theories of entitlement, nor did he provide an individual explanation as to whether the eye condition could have been aggravated by the service-connected diabetes mellitus. As such, the Board finds that another remand is necessary in order to obtain the opinions requested in the prior remand. The examiner is asked to provide separate nexus opinions, and accompanying rationales, regarding both direct and secondary service connection, as requested in the directives below. TDIU The Veteran's entitlement to a TDIU is inextricably intertwined with the pending service connection claim on appeal that has been remanded. As such, the outcome of this remand may have an impact on the TDIU claim. Therefore, the Board finds that the claim for entitlement to a TDIU benefits must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Records Finally, the claims file includes VA treatment records dated through April 6, 2020. On remand, any updated records related to the Veteran's eye disorder should be associated with the Veteran's claims file. He should also be afforded the opportunity to identify and provide authorization for VA to assist in obtaining any updated private records related to his claimed eye disability. 38 C.F.R. § 3.159(c). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any VA treatment records pertaining to the Veteran's eye disability for the period from April 6, 2020, to the present. 2. The Veteran should be given an opportunity to identify any outstanding private treatment records relevant to his claim. After obtaining any necessary authorizations from the Veteran, all outstanding, non-duplicative records should be obtained and associated with the claims file. 3. Obtain an addendum medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran's claimed eye disorder. The need for a new examination is left to the discretion of the examiner offering the addendum opinion. The record should be made available, and the examiner's review of the record should be indicated. After reviewing the record, the examiner must offer an opinion for each question set out below regarding the Veteran's diagnosed eye disorder. The examiner is asked to provide individual opinions, with separate accompanying rationales, specifically addressing the theories of direct and secondary service connection, to include aggravation. Identical rationales for each opinion provided is unlikely to form a sufficient basis for a conclusion for VA benefits purposes. (a) Whether it is at least as likely as not (50 percent or higher degree of probability) that the eye disorder is related to the Veteran's active service, to include his presumed exposure to herbicides; (b) Whether it is at least as likely as not (50 percent or higher degree of probability) that the eye disorder is proximately due to, or caused by, the Veteran's service-connected diabetes mellitus; (c) Whether it is at least as likely as not (50 percent or higher degree of probability) that the eye disorder has been aggravated by the Veteran's service-connected diabetes mellitus. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. Although whether the service-connected diabetes mellitus does or does not cause or aggravate the Veteran's eye disorder may be obvious on the current record to one trained in medicine, it is necessary for purposes of VA benefits claims that a qualified person explain the matter to those untrained in medicine. To that end, the clinician is asked to provide a rationale and to explain the reasons behind each opinion expressed and conclusion reached. Mere conclusory statements or reiterations of a provided opinion cannot form a sufficient basis for a rationale for VA benefits purposes. In offering the opinions, the examiner is asked to consider the Veteran's lay statements, his military occupational specialty, service treatment records, and post-service treatment records. 4. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.