Citation Nr: 1751599 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 09-20 670 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a vision disorder, claimed as poor vision, to include as secondary to service-connected diabetes mellitus, type II (diabetes). 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability. ATTORNEY FOR THE BOARD R. Asante, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1964 to October 1966, which included combat service in the Republic of Vietnam. His awards include the Combat Infantryman Badge and two Bronze Service Stars. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2008 and July 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In May 2011 correspondence, the Veteran withdrew his hearing request. See 38 C.F.R. § 20.704 (e) (2016). The Board remanded the claim for a vision disorder in January 2013 and both issues on appeal in April 2017. FINDINGS OF FACT 1. The Veteran's vision disorders did not have their onset in service, and are not otherwise related to service or a service-connected disability. 2. The Veteran's obstructive sleep apnea did not have its onset in service, and is not otherwise related to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a vision disorder are not met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 4.9 (2016). 2. The criteria for entitlement to service connection for obstructive sleep apnea are not met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veteran's Contentions The Veteran asserts that his poor vision is secondary to his service-connected diabetes. He further asserts that his obstructive sleep apnea is due to his service-connected disabilities. See August 2008 and March 2015 Informal Claims. II. Applicable Law Service connection may be established for a disability resulting from injury or disease incurred during active service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in- service. 38 C.F.R. § 3.303(d). Generally, to establish service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). If the Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). To establish service connection, however, there must be medical evidence of a nexus between the current disability and the combat injury. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection generally requires (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). III. Analysis A. Direct Service Connection There are current diagnoses of several vision disorders, including bilateral nuclear sclerosis, bilateral pinguecula, bilateral dry eye, and refractive error. See October 2008, August 2016, and May 2017 VA examination reports. Notably, refractive errors are not considered diseases or injuries for VA purposes, and the Veteran does not allege, and the record does not otherwise support, any superimposed disease or injury on such refractive error resulting in additional disability. 38 C.F.R. §§ 3.303(c), 4.9; see also VAOPGCPREC 82-90 (1990). Thus, refractive error is not available for service connection and will not be further addressed. The Board recognizes that a June 2010 VA treatment record diagnosed the Veteran with "diabetic retinopathy." However, this is the only diabetic retinopathy diagnosis rendered during the appeal period, which is contrary to the March 2007, October 2008, August 2016, and May 2017 VA examination reports that specifically noted no diabetic changes, complications, or diagnoses associated with the Veteran's diabetes. Here, the Board affords more probative value to the March 2007, October 2008, August 2016, and May 2017 VA examiners' opinions as to the lack of a diabetic retinal condition, as these examiners conducted thorough eye examinations and provided supporting data and reasoning for their conclusion that such diagnosis is not present, than to a fleeting reference in a VA treatment record that was not based on a thorough eye examination. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Thus, for the reasons outlined above, the Board finds that the Veteran did not have a diagnosis of diabetic retinopathy at the time he filed his claim or any point thereafter, and this disability will not be further addressed. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As such, the Board determines that there are current diagnoses for bilateral nuclear sclerosis, bilateral pinguecula, bilateral dry eye, and refractive error only. Additionally, there is a current diagnosis for obstructive sleep apnea. See November 2014 VA treatment record and July 2015 VA examination report. Thus, element one for the Veteran's vision disorder and obstructive sleep apnea claims is met. As to element two, in-service incurrence of an injury or disease, the Board acknowledges the Veteran's combat service in Vietnam; however no combat injury has been raised by the Veteran or the record as being related to either a vision disorder or obstructive sleep apnea. Thus, the combat presumption does not attach. Additionally, there is no evidence of record to support an in-service incurrence of either a vision disorder or obstructive sleep apnea. Indeed, the Veteran specifically denied any eye trouble and frequent trouble sleeping at service separation. See October 1966 service treatment record (STR). Therefore, element two for both a vision disorder and obstructive sleep apnea is not established, and direct service connection fails on that basis alone. As to the final element, nexus, the May 11, 2017 VA examiner opined that it was less likely than not that the Veteran's vision disabilities, including bilateral nuclear sclerosis, bilateral pinguecula, bilateral dry eye, and refractive error, had their clinical onset during service or due to an injury or illness while on active duty. In support of her opinion, the examiner noted the lack of evidence of any eye condition in the Veteran's STRs and offered alternate causes for each eye condition diagnosis. Specifically, she noted that the Veteran's bilateral pinguecula are superficial conjunctival actinic changes affecting the collagen and elastoid fibers of the conjunctival, which is very common in the tropics. Additionally, she stated that medical literature shows that bilateral senile nuclear sclerosis or cataract changes are found in 95 percent of persons 65 years or older. Lastly, she noted that the Veteran's bilateral dry eye is a consequence of not using his lubricant eye drops and that dry eye is a common condition in elderly patients with inadequate tear volume or unstable tear film or ocular surface disease. The May 9, 2017 VA examiner opined that it was less likely than not that the Veteran's obstructive sleep apnea had its onset during service or due to an injury or illness while on active duty. In rendering his opinion, the examiner specifically focused on the lack of complaints, signs, or symptoms of obstructive sleep apnea in the Veteran's STRs and the fact that complaints and symptoms did not occur until 2007 more than 40 years post-service. See May 9, 2017 VA examination opinion. There is no competent evidence to the contrary. Thus, element three for a vision disorder and obstructive sleep apnea is not established and direct service connection for these claims is not warranted. B. Secondary Service Connection The Board again notes that there are current diagnoses for several vision disorders and obstructive sleep apnea, therefore the first element, a current disability, has been met. See October 2008, July 2015, August 2016, and May 2017 VA examination reports; and November 2014 VA treatment record. Regarding the second element, a service-connected disability, the Veteran is service connected for multiple disabilities including: myocardial infarction, old coronary artery disease, depressive disorder, not otherwise specified, diabetes mellitus type II with erectile dysfunction, bilateral lower extremity peripheral neuropathy, bilateral upper extremity peripheral neuropathy, a right leg scar, chronic prostatitis, and coronary artery bypass surgery. Therefore, the second element is also met. The crux of the secondary service connection claim rests on element three, whether there is a relationship between the diagnoses of any vision disorder and obstructive sleep apnea, and the Veteran's service-connected disabilities. Here, the Board finds that the competent May 2017 VA examination reports do not substantiate this relationship. Specifically, the May 11, 2017 VA examiner opined that none of the Veteran's current vision disabilities were caused by or aggravated by the Veteran's service-connected diabetes. In support of her opinion, she emphasized as previously mentioned, no evidence of diabetic retinal changes in the Veteran's eyes, which is thoroughly supported by prior VA medical opinions of record (March 2007, October 2008, and August 2016 VA examiner opinions). Lastly, as previously mentioned, she offered alternate causes for all the Veteran's vision disorders including: tropical location (bilateral pinguecula), age (bilateral senile nuclear sclerosis), and failure to use lubricant eye drops (bilateral dry eye); and noted refractive error as congenital in origin. As to the Veteran's other service-connected disabilities, the Veteran does not assert and the evidence of record does not suggest a causal relationship between his other service-connected disabilities and his vision disorders. Therefore, the Board will not address any potential causal relationships in this regard. As to the Veteran's obstructive sleep apnea, the May 9, 2017 VA examiner opined that it is less likely as not that his obstructive sleep apnea was caused by or aggravated by any of his service- connected disabilities. In support of his opinion, he explained that there is no medical literature that supports the idea that obstructive sleep apnea is caused by or aggravated by any of his service-connected disabilities. Further, he stated that no aggravation of sleep apnea is noted in the evidence of record such as the need of oxygen at night, changes to continuous positive airway pressure (CPAP), or respiratory failure. His opinion is supported by the opinion of the July 2015 VA examiner, who reached the same conclusion. There is no competent evidence to the contrary. To the extent the Veteran asserts his vision disorders are related to his service-connected diabetes and his obstructive sleep apnea is related to any of his service-connected disabilities, his opinion is not competent. As a lay person, he has not shown to be capable of making such conclusions on inherently medical questions. Establishing a link between his current vision disabilities and obstructive sleep apnea diagnoses and any of his service-connected disabilities requires specialized training sufficient to render such an opinion. Specifically, the diagnoses and determinations as to the etiology of any of his vision disorders and obstructive sleep apnea are matters not capable of lay observation, and require medical expertise and testing to assess. The Veteran has not indicated that he has such training and experience. Thus, the preponderance of the evidence is against a finding that the Veteran's current vision disorders or obstructive sleep apnea manifested in service, are proximately due to or aggravated by any of his service-connected disabilities, or are otherwise related to service. Accordingly, the benefit-of-the-doubt doctrine is not applicable in this instance, and the claims for entitlement to both direct and secondary service connection for a vision disorder and obstructive sleep apnea must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a vision disorder, claimed as poor vision, to include as secondary to service-connected diabetes, is denied. Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability, is denied. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs