Citation Nr: 1802710 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 09-06 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for detached retina of the left eye. 2. Entitlement to service connection for a forehead lump to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 3. Entitlement to service connection for a skin rash to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 4. Entitlement to service connection for a chest lump to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 5. Entitlement to service connection for joint pain to include as a qualifying chronic disability under 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from February 1988 to February 1992, to include service in the Southwest Asia theater of operations from October 1990 to March 1991. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In January 2012, the Veteran testified before the undersigned at a videoconference hearing and a transcript is of record. In May 2012, the Board remanded the appeal for additional development. As to the Veteran's claims seeking effective dates for the grant of a total rating based on individual unemployability (TDIU) and a 70 percent rating for posttraumatic stress disorder (PTSD) as well as the denial of the claim for bilateral glaucoma, the shows that the RO issued a statement of the case as to these issues in July 2017. To date, VA has not received the Veteran's substantive appeal as to any of these issues. As such these issues are not before the Board. The claims of service connection for a forehead lump, a skin rash, a chest lump, and joint pain to include as a qualifying chronic disabilities under 38 C.F.R. § 3.317, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The preponderance of the evidence shows that the Veteran's detached retina of the left eye was not present in service or until many years thereafter and is not related to service or to an incident of service origin. CONCLUSION OF LAW The criteria for service connection for a detached retina of the left eye have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran seeks service connection for a detached retina of the left eye which he claims was caused by his multiple traumas while on active duty. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In substance, the Veteran claims it was caused by one or two acute injuries in 1989 (a motor vehicle accident and a sports injury) and/or during an altercation in 1990 all while on active duty. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The post-service record documents the Veteran being diagnosed with a detached retina in the left eye in April 2005. Moreover, the Board finds that the Veteran is competent to report on the objective manifestations of this injury, such as pain and lost vision, because it comes to him via his own senses. See Davidson. Furthermore, service treatment records document the Veteran's complaints and treatment following a motor vehicle accident in February 1989, a sports injury in August 1989, and an altercation in March 1990. However, the service treatment records, including those surrounding the two acute injuries in 1989 and the altercation in 1990 as well as a June 1988 and September 1990 eye examinations and while hospitalization in July 1990 for an acute appendicitis, are negative for complaints, symptoms, treatment, or a diagnosis of a detached retina in the left eye. See 38 C.F.R. § 3.303(a); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Similarly, the record does not show that the Veteran had a continued problem with a detached retina in the left eye in and since service. In fact, as reported above, the treatment records surrounding the two acute injuries in 1989 and the altercation in 1990 as well as the hospitalization in July 1990, are negative for complaints, symptoms, treatment, or a diagnosis of a detached retina in the left eye. Likewise the post-service records are negative for a history, complaints, and/or a diagnosis of a detached retina in the left eye until 2005. See, e.g., VA treatment records dated in April 2005 and May 2005. Further, the Board finds that the most probative evidence of record shows that the Veteran's post-service detached retina in the left eye is not due to service. Specifically the record shows that at the post-remand VA examination, dated in April 2017, which was held for the express purpose of ascertaining if the Veteran's detached retina in the left eye was due to his military service, the examiner after a review of the record on appeal and an examination of the appellant opined that it was not due to his military service. This medical opinion is not contradicted by any other medical evidence of record. The Board also finds that the Veteran and other lay persons are not competent to provide nexus opinions because they do not have the required medical expertise to provide an answer to this complex medical question. See Davidson. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a detached retina in the left and the claim is denied. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In reaching all the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert. ORDER Service connection for detached retina of the left eye is denied. REMAND As to he claims of service connection for a forehead lump, a skin rash, a chest lump, and joint pain to include as a qualifying chronic disabilities under 38 C.F.R. § 3.317 (2017), the Board in May 2012 remanded these claims to provide the Veteran with a VA examination to obtain needed etiology opinions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, while the post-remand record shows that the Veteran was provided with VA examinations in April 2017, the Board does not find the etiology opinions provided by the examiner adequate because the examiner did not fully discuss the criteria for establishing service connection found under 38 C.F.R. § 3.317 nor did the examiner address the criteria for establishing service connection under 38 C.F.R. § 3.310 (2017). See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Therefore, the Board finds that a remand to obtain adequate etiology opinions is required. See 38 U.S.C.A. § 5103A(d) (West 2014); Barr; Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance). Accordingly, these issues are REMANDED to the AOJ for the following actions: 1. Associate with the claims file the Veteran's post-April 2017 treatment records from the William Beaumont Army Medical Center and his post-June 2017 treatment records from the Jesse Brown VA Medical Center. 2. After obtaining authorizations from the Veteran, associate with the claims file any outstanding private treatment. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of any problems with a forehead lump, a skin rash, a chest lump, and joint pain during service as well as any continued problems since that time. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Provide the Veteran with an examination to obtain medical opinions as to the diagnosis and origins of any forehead lump, skin rash, chest lump, and joint pain to include any qualifying chronic disability under 38 C.F.R. § 3.317. The claims folder should be made available to and reviewed by the examiner. The examiner should respond to the following questions: (1) Provide a current diagnosis for any forehead lump, skin rash, chest lump, and joint pain in each of the joints the Veteran reported experiencing pain and which he is not already service connected for (i.e., the ankles, feet, shoulders, and feet). If the Veteran does not now have, but previously had, any such condition, when did that condition resolve? (2) For each diagnosed disorder, is it at least as likely as not that it had its onset directly during the Veteran's service or is otherwise related to any event or injury during his service including his documented motor vehicle accident and/or his service in the Southwest Asia theater of operations from October 1990 to March 1991? (3) If the Veteran's diagnosis includes arthritis in any joint for which he is not already service-connected (i.e., the ankles, feet, shoulders, and feet), is it at least as likely as not that it manifested itself in the first post-service year? (4) For each diagnosed disorder, is it at least as likely as not that it was caused by any service-connected disability? (5) For each diagnosed disorder, is it at least as likely as not that it was aggravated (i.e., permanently worsened) by any service-connected disability? (6) If a nexus to his service or an already service connected disability cannot be established for any abnormality, please provide an opinion as to whether the disability pattern is consistent with: (i) an undiagnosed illness, (ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (iii) a diagnosable chronic multisymptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis. If, after reviewing the claims file, you determine that the Veteran's disability pattern is consistent with either (iii) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as (i.e., at least equally probable) that the disability pattern or diagnosed disease is related to environmental exposures experienced by the Veteran during his service to include his service in the Southwest Asia theater of operations from October 1990 to March 1991. In answering all questions, please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. In providing the requested opinions, the examiner should comment on the Veteran's competent lay reports. If the examiner feels that any of the requested opinions 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). 5. Then readjudicate the appeal. If any benefit sought on appeal is not granted in full, furnish the Veteran a supplemental statement of the case (SSOC) that includes, among other things, notice of all the evidence added to the claims file since the January 2017 SSOC. The Veteran should be given an appropriate opportunity for response before returning the appeal to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs