Citation Nr: 25005477 Decision Date: 04/23/25 Archive Date: 04/23/25 DOCKET NO. 16-09 706 DATE: April 23, 2025 REMANDED Entitlement to service connection for a right eye disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during an October 2019 hearing. A transcript of the hearing is associated with the Veteran's claim file. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In a July 2023 decision, the Board denied entitlement to service connection for a right eye disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2024 Joint Motion for Remand (JMR), the Court stated that vacatur and remand was appropriate regarding the July 2023 Board decision that denied entitlement to service connection for a right eye disability. The claim returned to the Board in October 2024. In the October 2024 decision, the Board stated the June 2024 JMR noted the December 2022 VA addendum opinion did not fully address the Veteran's lay statement, did not explain the opinion the in-service eye injury was acute rather than chronic, relied on the absence of treatment records, and did not provide reasoning as to why the examiner opined the Veteran's eye disability was clearly and unmistakably not aggravated in service. The Board remanded the matter to obtain an addendum opinion that addressed these issues. Pursuant to the October 2024 Board remand, the Veteran was afforded a VA examination and medical opinion in December 2024. The examiner opined that the claimed condition was less likely than not (likelihood is less than approximately balanced or nearly equal) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner stated that the Veteran was treated for conjunctivitis in 1970 in the right eye, but conjunctivitis cleared, and no documentation of scarring/pterygium noted. The pterygium was not noted until 2012 and it was visually significant. The examiner stated that the separation examination noted eyes were normal. The examiner also noted that the Veteran has cataract in the right eye that is age related also causing reduced vision. Additionally, the examiner opined that the claimed condition, which clearly and unmistakably existed prior to service was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained that the entrance and separation examination noted eyes are normal with no scarring or pterygium present. She stated that the diagnosis was not until 2012, and that cataract was also diagnosed around 2012 in the right eye which is age related. The examiner reasoned that both conditions were not diagnosed until after the Veteran was out of service and there is no documentation noted that either the pterygium or cataracts were present prior to service. Lastly, the examiner provided additional comments that the Veteran's reduced vision is most likely caused by the pterygium bisecting his pupil and the pterygium was not documented until 2012, and thus she cannot say that the pterygium was there while in service. She stated that the Veteran also has a diagnosis of cataract in the right eye contributing to reduced vision that is related to age changes, and it was diagnosed around 2012. The Veteran did not have either condition prior to service as there is no documentation. The first documentation noted was in 2012 which was many years post service, and exit examination showed eyes had no problems/conditions. Here, the Board finds that the December 2024 VA examiner did not consider all of the instructions outlined in the October 2024 Board remand. For example, the VA examiner did not fully consider all the Veteran's lay statements and assertions regarding the nature and onset of his right eye disability. Furthermore, the Board informed the examiner that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, may be considered an insufficient rationale. The Board remand also informed the examiner that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, may be considered insufficient rationale. However, the examiner did precisely this by stating that the diagnosis was not until 2012, many years post service and that there is no documentation. Thus, the Board finds that the December 2024 addendum medical opinion is inadequate. Accordingly, a remand is necessary because the Board cannot make a fully informed decision on the issue because an adequate medical opinion is not of record. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. The matters are REMANDED for the following action: 1. Obtain VA treatment records from January 2025 to present. All reasonable attempts should be made to obtain any identified records. 2. After completion of the above, obtain an addendum opinion from the examiner who provided the December 2024 VA medical opinion to address the claim for service connection for a right eye disability (or if no longer available, an appropriate replacement). The decision for an in-person examination of is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) Is there clear and unmistakable evidence that the Veteran's right eye disability preexisted his active service? b) If yes, then was the right eye disability clearly and unmistakably NOT aggravated by the Veteran's active service? Clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, (i.e., it is undebatable). Quirin v. Shinseki, 22 Vet App. 390, 396 (2009). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in-service." c) If no, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher), that the Veteran's right eye disability was caused by service, to include an in-service injury, event, or disease? The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his right eye disability, as he is legally permitted to report his symptoms, past medical history, and experiences. In rendering these opinions, the examiner is asked to consider these particular lay statements from the Veteran in addition to other relevant evidence of record: 1) The Veteran's report of a June 2018 examination, not in the record, which stated that the Veteran's corrected vision in the right eye was 21/50. Pterygium could be causing the visual impairment. See October 2019 Board Hearing Transcript at pg. 5. 2) The Veteran's report that he first noticed pterygium during service, and it got bigger every year. It was said to be progressive. See October 2019 Board Hearing Transcript at pg. 17. 3) The Veteran's report that during service, the Veteran was hit in the eye with a glass bottle, which broke his glasses; glass got into his eye; the glass cut his eye and stuff had to be removed from his eye. The Veteran wore a patch for days, did not return to work for a while, and had a profile to not work. A few days after the incident, the Veteran had a right eye infection. The Veteran continued to be treated during service with eye drops and creams and received treatment after service. Physicians have told the Veteran that his eye problems were related to the incident in service. See October 2019 Board Hearing Transcript at pg. 8; April 2016 VA 646. 4) The Veteran's report that he wore glasses during service because he was visually impaired, but did not begin wearing glasses until after basic training. The Veteran's eye condition worsened from the beginning of service to the end of service. The Veteran's brother noticed the Veteran's eye condition shortly after service. For all the years since service, the Veteran had noticed the condition getting worse. See October 2019 Board Hearing Transcript at pg. 12. 5) The Veteran's contention that micro specimens of glass may remain in the eye from the incident during service. See April 2016 VA 646. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a right eye disability in service or the assertion that an in-service event, injury, or illness led to his current right eye disability. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for this opinion, including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, may be considered an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, may be considered insufficient rationale. If the examiner determines a disability was acute rather than chronic, the examiner should explain how he or she arrived at that conclusion rather than providing a conclusory opinion. For example, what evidence led to that conclusion, what would the examiner expect to see if a condition was chronic, how do the Veteran's lay statements, if any affect the conclusion? If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.