Citation Nr: 25005266 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 16-54 688 DATE: April 17, 2025 ISSUE Entitlement to service connection for vision impairment, to include as secondary to diabetes mellitus, type II, prior to August 10, 2022. REMANDED Entitlement to service connection for vision impairment, to include as secondary to diabetes mellitus, type II, prior to August 10, 2022, is remanded. REASONS FOR REMAND The Veteran had active service from February 1964 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in August 2018. A copy of the transcript has been associated with the Veteran's electronic claims folder. When this case was previously before the Board in May 2023, it was remanded for additional evidentiary development. Upon remand, a December 2023 rating decision granted service connection for cataracts vision impairment secondary to diabetes mellitus type II, effective August 10, 2022, the effective date for the grant of service connection for the Veteran's diabetes. A February 2025 Supplementary Statement of the Case (SSOC) denied entitlement to service connection for vision impairment prior to August 10, 2022 under alternative theories of service connection which would have afforded the Veteran an earlier effective date. The issue of whether the Veteran is entitled to service connection, limited only to the period prior to August 10, 2022, has therefore returned to the Board. Entitlement to service connection for vision impairment, to include as secondary to diabetes mellitus, type II, prior to August 10, 2022, is remanded. The Veteran asserts he is entitled to service connection for his vision impairment, which has been diagnosed as glaucoma, cataract, arcus senilis and dry eye syndrome. Specifically, the Veteran contends his vision impairment is related to herbicide agent exposure during service in Thailand, which has been interpreted to include a theory of service connection as secondary to diabetes mellitus type II. The issue as it has returned to the Board is, in effect, an earlier effective date determination. However, the Veteran would only be entitled to an earlier effective date if he could be granted service connection under a theory other than secondary service connection. Generally, the effective date for an award of service connection and disability compensation is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In this case, the Veteran is service connected for vision impairment secondary to his diabetes, effective August 10, 2022. Regarding a secondarily service-connected disability, the effective date cannot be earlier than that of the underlying, or primary, disability because entitlement to secondary service connection does not arise until the underlying disability is service connected. See 38 C.F.R. §§ 3.310, 3.400. Essentially, service connection for a disability on a secondary basis arises from an underlying disability that is already service connected; therefore, "the date entitlement arose" for a secondarily service-connected disability cannot be prior to the underlying service-connected disability's effective date. Id.; and McGrath v. Gober, 14 Vet. App. 28 (2000) (the date entitlement arose is the date when the claimant met the requirements for the benefit sought). Here, VA received the Veteran's initial claim for service connection for vision impairment on August 28, 2012, and the claim has been continuously pursued through appropriate appellate procedures since. However, the Veteran's diabetes, the primary disability to his vision impairment, was granted service connection effective August 10, 2022 under the PACT Act. Therefore, the effective date for the grant of service connection for the Veteran's vision impairment as secondary to his diabetes cannot be earlier than August 10, 2022. The Board also notes that the effective date for the grant of the Veteran's diabetes mellitus, type II is not on appeal. However, an earlier effective date could be awarded if service connection were granted under direct service connection. A grant of service connection under a direct theory would relate back to the date of the claim. As a result, for effective date purposes, it is necessary to determine if the Veteran is entitled to service connection under a direct service connection theory. In the present case the Veteran has asserted his vision impairment is related to herbicide exposure during service in Thailand. While this was interpreted to include a secondary service claim, it is not limited to just that theory. VA has conceded the Veteran was exposed to herbicide agents during service, and that this constituted a Toxic Exposure Risk Activity (TERA). See December 2023 VA Memo. The February 2025 SSOC states they considered whether the Veteran's condition resulted directly from TERA, but the medical opinion provided does not show a direct association between the Veteran's claimed disability and his in service TERA. However, it is worth noting that there is no TERA opinion, or direct service connection opinion generally, in the record regarding the Veteran's vision impairment. The medical opinions are limited to secondary service connection opinions. Therefore, remand is required to obtain an opinion consistent with the theory of service connection currently at issue. The Board highlights that this remand decision does not impact the Veteran's entitlement to service-connection for vision impairment effective August 10, 2022. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 2. Following Step 1, obtain a new VA medical opinion from an appropriate clinician to determine the etiology of the Veteran's vision impairment, specifically as regard to his participation in TERA. An examination is not required unless deemed necessary by the examiner to render the requested opinions. The clinician is requested to provide an opinion as to the following: (a.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's vision impairment had its onset in or was incurred in service? (b.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's vision impairment is related to or otherwise caused by toxic exposure risk activity (TERA)? In arriving at these requested opinions, the examiner must specifically consider the Veteran's lay statements and any testimony related to his vision impairment and TERA, specifically his exposure to herbicides during service in Thailand. A complete rationale must be provided for any opinion(s) expressed. If any requested opinion cannot be provided without resorting to speculation, then the clinician must explain why this is so. 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable, the Veteran and his attorney should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case, and be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. J. 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.