Citation Nr: 1753668 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-08 278 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for a bilateral eye disability to include keratitis, bilateral non-trachomatous papillary allergic conjunctivitis, and dry eye syndrome. REPRESENTATION Appellant represented by: South Dakota Department of Veterans Affairs ATTORNEY FOR THE BOARD E. Morgan, Associate Counsel INTRODUCTION The Veteran had active duty service in the South Dakota National Guard from October 2007 to July 2008 and from April 2009 to April 2010. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2013 rating decision from the RO in Sioux Falls, South Dakota. This case was previously before the Board. In September 2015 and again in August 2016, the Board remanded this matter to the RO for further development. The matter has returned to the Board. FINDING OF FACT The Veteran's bilateral eye disability, to include keratitis, bilateral non-trachomatous papillary allergic conjunctivitis, and dry eye syndrome, is not shown to have had its onset in service or is otherwise related to his military service. CONCLUSION OF LAW The criteria for service connection for a bilateral eye disability, to include keratitis, bilateral non-trachomatous papillary allergic conjunctivitis, and dry eye syndrome have not been met for any period on appeal. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317, 3.655 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). As stated above this matter was previously remanded by the Board for further development. In September 2015, the Board remanded this claim to the RO and the Veteran was provided a VA examination for eye conditions in January 2016. The matter returned to the Board in August 2016 and again the Board remanded this claim to the RO for further development. The RO scheduled the Veteran for a VA examination for eye conditions in October 2016 but the Veteran did not appear for the examination. The Veteran did not call VA to reschedule the VA eye examination neither has he stated that he did not receive the notice for the October 2016 VA eye examination. The Board finds that VA has met its duty to notify and assist the Veteran in this matter. Id. Service Connection, Generally The Veteran contends that his current bilateral eye disability, to include keratitis, bilateral non-trachomatous papillary allergic conjunctivitis, and dry eye syndrome (bilateral eye disability) was caused by his active duty service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a veteran 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 or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Under 38 C.F.R. § 3.303(b), an alternative method of establishing service connection is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As eye disabilities are not qualifying chronic diseases, service connection via the demonstration of continuity of symptomatology is not applicable in the present case. The Veteran in this case served in the Persian Gulf. Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. To constitute a "qualifying" chronic disability, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claim's file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Bilateral Eye Disability In this case, the Veteran's service treatment records (STRs) show the Veteran's post-deployment health assessment from March 2010, and that STR lists no complaints related to the Veteran's eyes. The March 2010 post-deployment assessment also shows that the Veteran was not worried about exposure to toxins, fumes, burning trash or industrial pollutants during his deployment in the Persian Gulf War. The same STR shows that the Veteran wore protective eyewear during his deployment in the Persian Gulf War. In August 2010, in another post-deployment health assessment, the Veteran reported that he was being treated for watery eyes. All other STRs are negative also for complaints from the Veteran regarding his eyes. In December 2012 the Veteran filed a claim for service connection for dry eyes. The Veteran cited a VAMC treatment record from October 2010 showing "dry eye syndrome" as a medical problem. A January 2011 private treatment record from Dr. M.E. shows that the Veteran had moderate keratitis and was prescribed "Pred Forte," a steroid eye drop for the inflammation. The examiner described the Veteran's vision as stable. The private treatment note also shows that the Veteran was asymptomatic but was unable to get his contact lenses to fit. In May 2011, the Veteran was seen at the S. Eye Clinic and diagnosed with "simple allergic conjunctivitis." The treatment notes show that the Veteran's dry eyes were much improved, with papillae and allergic reaction still present in both eyes. The record shows that the Veteran "went to [an] allergist and discovered he has a bad allergy to dust and mold and is going to start allergy shots next week." A December 2011 treatment note from the same private facility shows that the Veteran had conjunctivitis, was getting allergy shots and taking over-the-counter medication for his allergies. The Board notes that the Veteran has met the first element for service connection under Holton. The evidence of record establishes that he has a current bilateral eye disability. A June 2013 VA examination for an eye condition diagnosed the Veteran with dry eyes, non-trachomatous conjunctivitis and papillae from his contact lenses. The examiner noted that there was no decrease in visual acuity, no scarring or disfigurement. The examiner reported that the Veteran did not have a field-of-vision defect and wrote that his bilateral eye disability did not impact his ability to work. The Veteran was provided a Gulf War VA examination in January 2014. The examiner notes that the Veteran reports that he has a prior eye condition and is unable to wear contact lenses. The Gulf War examination is negative for any other complaints from the Veteran regarding his eyes or vision. In January 2016, a VA examiner reviewed the medical evidence in the claims file, recounted the Veteran's history and recited his complaints. The VA examiner reported a diagnosis of bilateral non-trachomatous papillary allergic conjunctivitis. The examiner reported that the Veteran's STRs show routine eye exams during service. The examiner reported that the STRs are negative for conjunctivitis or dry eyes during military service. The examiner reported that the Veteran's bilateral non-trachomatous papillary allergic conjunctivitis is not at least as likely as not due to or aggravated by the Veteran's exposure to conditions while in the service or his tour of duty. The examiner reported that the Veteran's dry eyes are not at least as likely as not due to or aggravated by the Veteran's exposure to conditions while in the service or his tour of duty. The examiner's opinions are based upon the Veteran's STRs, private treatment records, VA treatment records and a thorough examination of the Veteran's eyes. As to the second element of service connection, the Veteran asserts that his bilateral eye disability relates to his military service and that the symptoms manifested two months after he returned from overseas. The Veteran as a layperson is competent to report on matters observed or within his personal knowledge. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Jandreau v. Nicholson, 492 F.3d 1372-1377 (Fed. Cir. 2007); and Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Here, the Veteran's personal observations of his symptoms establish that he had a bilateral eye disability during service. Thus, the second element for a service connection claim is met. Holton. Regarding the third and final element for service connection-the nexus requirement-the evidence includes lay statements, VA examinations from June 2013, January 2014 and January 2016, VAMC records and private treatment records. While the Veteran is competent to report on symptoms observed through his own senses he is not competent to provide an opinion as to the etiology of or a diagnosis for his bilateral eye disability due to the medical complexity of the matter. The diagnoses provided by the examiners who are trained medical professionals are outside of the scope of what can be observed through the senses. Specialized training was required to provide the diagnoses and treatment for the Veteran's eyes. Thus, the Veteran is not competent to render an opinion or to present lay testimony to establish the etiology of his bilateral eye disability. Of more probative value regarding the nexus requirement, is the opinion set forth in the January 2016 VA examination. The medical professional is competent to provide an opinion regarding medical matters and to analyze the Veteran's symptoms and medical history. The January 2016 VA examiner reported that the Veteran's bilateral eye disability is not related to his military service and he based his opinion on the Veteran's medical history and complaints. Based upon a review of the medical and lay evidence, the preponderance of the evidence is against a finding that the Veteran's current bilateral eye disability is related to his military service. The Board notes that the June 2013 VA examination was previously considered inadequate. However, the diagnosis provided by the VA examiner in the June 2013 examination was competent and probative as to the matter before the Board. As stated above, the Board gives more weight to the January 2016 VA examiner's opinion which was supported by a thorough rationale and a review of the record. The Veteran also seeks service connection on a presumptive basis, based upon his service in Southwest Asia during the Persian Gulf War. The Veteran's evidence of record is negative for a medically unexplained chronic multi-symptom illness. The June 2013 VA examination reports a diagnosis of dry eyes, non-trachomatous conjunctivitis and papillae. The January 2016 VA examination reports a diagnosis of bilateral non-trachomatous papillary allergic conjunctivitis. A private medical record from January 2011 shows a diagnosis of moderate keratitis (inflammation) of the eyes. The private treatment notes from S. Eye Clinic from May and December 2011 show that the Veteran has bilateral conjunctivitis which is related to his seasonal allergies. The Veteran has been given specific diagnoses for his eye, which cannot meet the criteria for an undiagnosed illness. See 38 C.F.R. § 3.317(a)(1). In October 2016, after the Board's remand in this claim, VA scheduled an additional VA examination for eye conditions, as stated above. However, the Veteran failed to show for the examination. The record shows that the notice was not returned to the VA. VA's duty to assist is not a "one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). A veteran has an obligation to cooperate in the development of evidence pertaining to his claim, and the failure to do so places the veteran at risk of an adverse adjudication based on an incomplete and underdeveloped record. See Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). A veteran's obligation to cooperate in the adjudication process is clear: "If the veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood, 1 Vet. App. at 193. The record is clear in this case that the Veteran was afforded every reasonable opportunity to attend a VA examination. The Board finds that the evidence of record is sufficient to make a decision in this claim. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the award of service connection for the Veteran's bilateral eye disability, which has been variously diagnosed throughout the appeal period. See Holton; see also 38 C.F.R. § 3.317(a)(1). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a bilateral eye disability to include keratitis, bilateral non-trachomatous papillary allergic conjunctivitis, and dry eye syndrome is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs