Citation Nr: 22014308 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 16-11 342A DATE: March 12, 2022 REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected chronic conjunctivitis is remanded. Entitlement to service connection for chronic headaches, to include as due to service-connected disabilities is remanded. Entitlement to service connection for a sleep disorder, claimed as obstructive sleep apnea (OSA), to include due to service-connected disabilities, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1983 to June 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from Department of Veterans Affairs (VA) Regional Office (RO)'s rating decision issued in July 2014. The Veteran testified before the undersigned Veterans Law Judge during an August 2019 Travel Board hearing; a transcript is of record. The Board previously remanded the issues for further development in December 2019 and January 2021. The Veteran's claim for entitlement to service connection for an acquired psychiatric disorder was granted during the appeal period in a July 2012 rating decision and rated as generalized anxiety disorder with associative insomnia. As this grant represents a full grant of the benefits sought, this issue is no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). The rest of the issues on appeal has now been returned to the Board for appellate review. 1. Initial rating in excess of 10 percent for chronic conjunctivitis In order to ascertain the severity of the Veteran's service-connected eye disability, the Board must determine if his glaucoma is also service-connected. On this point, the Board has remanded the issue for medical opinions in the previous remands. An addendum opinion for the August 2021 medical opinion is required because the August 2021 opinion does not provide sufficient rationales. The August 2021 examiner opined that the Veteran's glaucoma was less likely as not related to his in-service participation in impact acceleration testing. The rationale provided was that the Veteran's medical records showed no evidence to support a relationship between these two conditions and that review of medical literature also showed a relationship to blunt trauma and glaucoma, but no record of blunt trauma was located in the Veteran's service treatment records. In a November 2021 statement, the Veteran reported that the impact acceleration program was classified and his representative was not able to obtain pertinent records. Indeed, the Veteran's service treatment records do contain an entry for consent to participate in impact and vibration acceleration experiments and the Veteran submitted a letter of appreciation for participation. However, medical records taken during the program or documentations for the experiment are not associated with his personal military records. The Board suspects that it is impossible to obtain pertinent documents concerning this program. In light of this situation, the August 2021 examiner's rationale that no record of blunt trauma is found in the Veteran's service treatment records is not sufficient. Despite lack of official documents concerning the program, the Veteran is competent to testify what he experienced in the program. As noted in the January 2021 Board remand, an October 2017 VA mental health record indicates that he reported having ridden a sled in a G-force testing and being hooked up to recording instruments while on the sled. See also August 2019 Board hearing transcript; February 2020 VA mental disorders examination. Additionally, the evidence of record indicates that the Veteran's glaucoma started to develop when he was around 30 years old when he did not have any chronic disability such as diabetes or hypertension, and the medical treatment records note his race and the family history of glaucoma. A review of the medical evidence of record indicates that the Veteran complained of having headaches or pain behind eyes as early as in April 1995 when he was around 30 years old. Moreover, an October 1996 treatment record indicates that the Veteran complained about aches behind eyes. He did not have any vision problems and visual acuity appears to around 20/15 or 20/20 with no prescription. Assessment was glaucoma suspect secondary to interocular pressure. A December 1997 treatment records also report pain behind eyes for 2 weeks with no blurred vision. Family history of glaucoma was noted for his grandmother and aunt. Visual acuity was 20/20 in each eye. Assessment was ocular hypertension. An August 2002 VA treatment record indicates that he had glaucoma, worse in right eye than the left eye, in October 1996. He was diagnosed with glaucoma and headache. When the pressure in the eyes increased enough to warrant an assessment of glaucoma suspect, he was around 30 years old and had family history of glaucoma, but it does not appear that he had vision issues or a chronic comorbid condition such as diabetes, heart disease, high blood pressure, or sickle cell anemia other known risk factors of glaucoma. See, e.g., Mayo Clinic, Glaucoma, https://www.mayoclinic.org/diseases-conditions/glaucoma/symptoms-causes/syc-20372839. Thus, a medical opinion must be obtained to determine the medical etiology of the Veteran's glaucoma in light of a reasonably expected physiological impact from the G-force testing on his eyes and other risk factors noted in the evidence, considering both with appropriate weights or probabilities that are medically reasonable. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Moreover, the Veteran submitted a statement in November 2021, contending alternatively that he became blind in his left eye due to an operation performed on that eye at a VA hospital in Martinez, California. A review of the VA treatment records indicates that the Veteran underwent an "Ahmed valve" procedure for glaucoma in the left eye in October 2013 at San Francisco VA Medical Center. However, no medical opinion has been obtained that determines whether the Veteran incurred an additional disability as a result of a surgery at VA under 38 U.S.C. § 1151. Thus, upon remand, a medical opinion for the newly raised contention must also be obtained. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 2. Service connection for chronic headaches A July 2021 addendum opinion requires a clarification. The examiner opined that the Veteran's headache was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In its rationale, the examiner states: After reviewing all medical evidence in my opinion it is less likely than not (less than 50 percent probability) that headaches, NOS incurred in or caused due to his in-service head injury in March 1987. It is consistent with the medical records. due (sic) to his in-service participation in Naval Biodynamic Laboratory experiments. It is not clear whether the examiner meant the headaches are not due to the March 1987 head injury, but due to in-service participation in the experiments. His military record shows that he participated in the program from March 1984 to November 1984. Upon remand, a further clarification must be obtained from the July 2021 examiner. Moreover, the evidence indicates that some, if not all, episodes of the Veteran's headaches are closely associated with his glaucoma. Thus, this issue is inextricably intertwined with the issue of entitlement to service connection for glaucoma above. Harris v. Derwinski, 1 Vet. App. 180 (1991). 3. Service connection for a sleep disorder, claimed as OSA The Veteran submitted a statement in December 2021, reporting that he did a sleep study in December 2021 at New Orleans VA Medical Center and he would like to have this considered as evidence for his pending appeal on OSA. Moreover, during the pendency of the appeal, service connection for an acquired psychiatric disability was granted in July 2021, and his representative argues in a November 2021 brief that the Board must consider impact of psychiatric medications on weight gain and sleep apnea. No medical opinion considers a relationship between his psychiatric disorder and sleep apnea. Thus, upon remand, an addendum opinion must be obtained. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 4. TDIU The Veteran indicates he has had difficulty with working and is unemployable due to loss of vision in the left eye as well as due to anxiety attack, sleep disorder, and headaches. See July 2021 Social Security Administration (SSA) application; November 2021 VA Form 21-8940. Thus, the issue is issue is inextricably intertwined with the issues remanded above. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records, to include the result of December 2021 sleep study conducted at New Orleans VA Medical Center. 2. Obtain a medical opinion on etiology of glaucoma, from an appropriate clinician, preferably in ophthalmology, who has not provided an opinion in the past on the issue for the Veteran. The examiner must review the entire claims file, to include the remand text above. Then, the examiner must provide an opinion whether the Veteran's glaucoma is at least as likely as not related to or aggravated by the in-service participation in acceleration program. When rendering the opinion, the examiner must determine a possible medical etiology of his glaucoma by considering the Veteran's description of his experience in the program and risk factors that are documented in the medical evidence. If the examiner finds that the Veteran's glaucoma is not at least as likely as not related to or aggravated by the in-service participation in the acceleration program, the examiner must also provide an opinion whether any eye surgery for glaucoma conducted at VA resulted in an additional disability, more than a natural progression of the disability. If so, the examiner must then provide an opinion (1) whether the disability was caused by VA's surgical treatment; (2) whether there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the surgical treatment, or (3) whether the disability was caused by a reasonably foreseeable event. The opinion must be rendered for each glaucoma surgery conducted at VA. Any rationale provided cannot solely rely on lack of medical records, in particular, for the acceleration program; any opinion rendered must be supported by medical reasonings. 3. Obtain an addendum opinion from the July 2021 examiner on whether the Veteran's headache is at least as likely as not caused by the in-service participation in the acceleration testing program. The examiner must review the remand text above as well as any evidence associated with the claims file since the opinion that needs clarification was rendered in July 2021. If the July 2021 examiner is not available to provide the clarification, an opinion must still be obtained from an appropriate clinician and the new examiner must review the entire claims file, to include the remand text above. 4. Obtain an addendum opinion from an appropriate clinician on whether the Veteran's sleep apnea is at least as likely as not proximately due to or aggravated beyond its natural progression by a service-connected disability, to include acquired psychiatric disability. The examiner must review the entire claims file, to include the remand text above, December 2021 sleep study at New Orleans VA Medical Center, and the November 2021 Appellate Brief by Disabled American Veterans. All opinions rendered must accompany sufficient rationales. 5. After the development requested has been completed, the examination reports should be reviewed to ensure that they are in complete compliance with the directives of this REMAND. If any report is deficient in any manner, corrective procedures should be implemented. 6. Readjudicate the claims, to include the claim of TDIU. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Taylor 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.