Citation Nr: 1805803 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-10 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a lumbosacral spine disability. 2. Entitlement to service connection for a right ankle disability. 3. Entitlement to service connection for a bilateral eye disability. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and J.S. ATTORNEY FOR THE BOARD Thaddaeus J. Cox, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2006 to December 2009. These matters come before the Board of Veterans' Appeals (Board) from September 2011 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO), in Denver, Colorado. The Veteran appeared before the undersigned Veterans Law Judge in an April 2017 Board Hearing at the RO. A copy of the transcript is of record. REMAND Although further delay is regrettable, these matters must be remanded for further development. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran contends, through representation, that lower back and right ankle disabilities were caused by attending Basic Airborne and Special Operations Preparation Courses in service. A November 2010 VA examination diagnosed lumbosacral degenerative disc disease, confirmed by diagnostic imaging, with objective evidence of decreased range of motion, and tenderness, and a right ankle strain with objective evidence of deceased range of motion and tenderness. No etiology was provided for either diagnosis. A January 2014 VA examiner opined that since there were no service medical records with low back or right ankle complaints or treatment, the claimed conditions were not related to service. However, that examiner did not provide an etiology to explain the presence of lower back disc disease and a right ankle strain in a patient of the Veteran's age. Although the examiner noted the Veteran's five parachute jumps in service, there is no indication that the examiner considered the full circumstances of service associated with attending Basic Combat Training, Advanced Infantry Training, Basic Airborne Course, and Special Operations Preparation Course, or with service as an Infantryman for three years. The examiner provided no reasoning to support the opinion that lower back disc disease and a right ankle strain in a patient the Veteran's age were less likely than not (less than 50 percent probability) related to or caused by the extensive physical and airborne training in service. Therefore, an opinion which indicates the consideration of the Veteran's full circumstances of service, and is supported by sufficient reasoning is necessary. The Veteran also contends, through representation, that the preexisting corneal scarring was aggravated during service. Although clear and unmistakable evidence shows that corneal scarring was caused by a photorefractive keratectomy operation (PRK) prior to service, VA still has the burden to show that the Veteran's disability was not aggravated by service. 38 U.S.C. § 1153 (2012). If VA does not produce clear and unmistakable evidence that the Veteran's disability was not aggravated by service, the Veteran's preexisting disability will be found to have been aggravated by service. However, the Veteran will need to produce evidence of a current disability, and a nexus between the disability and the service aggravation. Horn v. Shinseki, 25 Vet. App. 231 (2012). A December 2010 VA examination diagnosed bilateral corneal scarring which was noted to cause decreased visibility and prevent driving. No opinion regarding the etiology of the disability was provided. An October 2011 VA examination also diagnosed bilateral corneal scarring. The examiner stated to know of no mechanism which would cause progressive scarring over the course of one year after PRK. The Board finds the evidence shows a current diagnosis of bilateral corneal scarring. In January 2012, a private Cornea Specialist stated that medical literature indicates that ultraviolet (UV) exposure may worsen scarring in patients with a prior PRK. In March 2014, a VA Doctor of Optometry opined that the medical record did not indicate above normal levels of UV exposure, and that the visual "haze" noted on the entrance examination represented the same level of disability at present. However, the doctor did not indicate what levels of UV exposure are normal. Additionally, the doctor based the opinion that the disability did not worsen on the operating surgeon's decision not to pursue additional surgery for fear of complicating the condition. The Board finds that one doctor's decision not to pursue additional surgery and a conclusionary opinion that UV exposure was normal does not equate to clear and unmistakable evidence that corneal scarring was not aggravated by service. The Boards finds no clear and unmistakable evidence that the Veteran's corneal scarring was not aggravated by service. Therefore, preexisting corneal scarring is presumed to have been aggravated by service. Additionally, the Board finds probative evidence which indicates that the current eye disability may be related to or caused by the presumed aggravated corneal scarring. An eye examination in October 2006 for entrance into service noted biomicroscopy results of "2+ haze" on the cornea. The examining optometrist opined the Veteran met the enlistment standards and assigned a normal vision readiness profile. An August 2007 eye examination noted moderate haze with corneal clarity of 3 bilaterally. August 2008 performance counseling indicates the Veteran was recommended for discharge due to visual issues limiting performance. The Veteran's certificate of release from active duty shows the reason for separation to be a condition which interfered with duty performance. In April 2017 the Veteran submitted medical literature which warned that long-term use of prescription Prednisolone is known to cause corneal thinning. Service medical records show prescriptions for Prednisolone. Service records indicate the Veteran's corneal clarity worsened during service, and was the reason for an early discharge after three years of service. However, the VA medical opinions were not sufficient to allow for adjudication. The Board finds no indication that the examiners considered the Veteran's full circumstances of service when opining the Veteran's UV exposure was normal. The Veteran attended Basic Combat Training, Advanced Infantry Training, Basic Airborne Course, and Special Operations Preparation Course, and served as an Infantryman for three years. The Board notes that the Veteran's formal training and daily duties as an Infantryman would have mostly occurred outdoors. Therefore, an opinion which specifies the parameters for normal and above normal UV exposure, and opines why the Veteran's circumstances of service did or did not result in above average UV exposure during service is necessary. Additionally, the Board finds no indication that the examiners considered the Veteran's prescribed Prednisolone and its relation to corneal scarring, as indicated in the submitted medical literature. Therefore, an opinion which considers the in-service prescription of Prednisolone and opines whether or not that is related to the aggravated corneal scarring is also necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA spine examination with a medical doctor examiner who has not previously examined him in conjunction with this claim. The examiner should review the claims file, to include this remand, and should note that review in the report. The examiner should provide the following opinions: (a) Confirm that the examiner is a medical doctor who has not previously examined the Veteran in conjunction with this claim. (b) Diagnose and provide an etiology for all lumbosacral disabilities found. (c) Opine whether it is at least as likely as not (50 percent or greater probability) that any lumbosacral disability is related to service, or any event of service. Discuss the significance of the Veteran's circumstances of service and lay contentions regarding onset. Consider the physical and airborne aspects of the Veteran's service, the lay statements, and the Veteran's age at the time of the orthopedic diagnoses. Provide sufficient reasoning to support the opinion. 2. Schedule the Veteran for a VA ankle examination with a medical doctor examiner who has not previously examined him in conjunction with this claim. The examiner should review the claims file, to include this remand, and should note that review in the report. The examiner should provide the following opinions: (a) Confirm that the examiner is a medical doctor who has not previously examined the Veteran in conjunction with this claim. (b) Diagnose and provide an etiology for all ankle disabilities found. (c) Opine whether it is at least as likely as not (50 percent or greater probability) that any ankle disability is related to service, or any event of service. Discuss the significance of the Veteran's circumstances of service and lay contentions regarding onset. Consider the physical and airborne aspects of the Veteran's service, the lay statements, and the Veteran's age at the time of the orthopedic diagnoses. Provide sufficient reasoning to support the opinion. 3. Schedule the Veteran for a VA eye examination with a medical doctor examiner who has not previously examined him in conjunction with this claim. The examiner should review the claims file, to include this remand, and should note that review in the report. The examiner should provide the following opinions: (a) Confirm that the examiner is a medical doctor who has not previously examined the Veteran in conjunction with this claim. (b) Diagnose and provide an etiology for all eye disabilities found. Specifically confirm whether or not keratoconus is present. (c) Opine whether it is clear and unmistakable that preexisting corneal scarring was not aggravated (permanently increased in severity beyond the natural progress of the disorder) during service. Opine whether there was an increase in the severity of the visual disability during service, and if so, opine whether any increase in severity was clearly and unmistakably the natural progress of the disorder. Provide the parameters for normal and above normal UV exposure. Discuss the significance of the Veteran's circumstances of service, and whether or not those circumstances exposed the Veteran to above normal UV exposure. Also, consider the Veteran's prescription of Prednisolone during service, and whether there is any likelihood that would aggravated preexisting corneal scarring. Also, consider that the Veteran was found qualified at enlistment and separated over three years later due to the eye disability, and whether that indicates any likelihood that the visual disability increased in severity during service beyond the natural progress of the disorder. Provide sufficient reasoning to support the opinion. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. § 5109B, 7112 (2012). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).