Citation Nr: 18144599 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 10-16 143 DATE: October 24, 2018 ORDER Service connection for a left eye disability is denied. REMANDED Service connection for hypertension is remanded. Service connection for a right knee disability is remanded. FINDING OF FACT The Veteran is not shown to have (or at any time during the pendency of his claim to have had) a left eye disability. CONCLUSION OF LAW The criteria for service connection for a left eye disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1974 to July 1977, September 1990 to April 1991 and December 1995 to September 1996. He also had additional intervening periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). These matters are before the Board of Veterans’ Appeals on remand from the United States Court of Appeals for Veterans Claims (Court). They were originally before the Board on appeal from February 2009 (hypertension) and April 2013 (left eye and right knee) rating decisions of the Jackson, Mississippi Department of Veterans Affairs (VA) Regional Office/Agency of Original Jurisdiction (RO/AOJ). In September 2010, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO in connection with his hypertension claim. In March 2014, a Board hearing was held before the undersigned. A transcript of both hearings is in the record. In September 2014, the Board issued a decision that (in pertinent part) denied service connection for hypertension and disabilities of the right knee and left eye. The Veteran appealed that portion of the decision to the Court. [Notably, the September 2014 Board decision remanded the claims for increased ratings for a low back disorder and gastroesophageal reflux disorder (GERD)/hiatal hernia. Thereafter, Board decisions in April 2015 (low back disorder) and September 2015 (GERD/hernia) denied these claims.] In September 2015, the Court issued a Memorandum Decision that vacated the September 2014 Board decision with respect to the denial of service connection hypertension and disabilities of the right knee and left eye, and remanded the claims for readjudication. In April 2016, the Board remanded the matters to the RO for additional development necessary to ensure compliance with the terms of the September 2015 Memorandum Decision. Additional reference to the Veteran’s service connection claims are presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s claims that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Service Connection The Veteran claims service connection for a left eye disorder, manifested by a runny (watery) eye, which he contends is the result of sand becoming “embedded” in his left eye during his active duty service in Riyadh, Saudi Arabid, in Operation Desert Storm. As explained below, the Veteran does not have a current eye disability; thus, the appeal as to this matter must be denied. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection may also be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The Court has held the requirement that a current disability be present is satisfied when a claimant has a disability at the time of a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 19 (2007). In the absence of proof of a current disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). With respect to the matter of service connection for a left eye disorder, in the September 2015 Memorandum Decision, the Court noted that the Veteran had reported receiving private treatment for his eyes; however, VA had not attempted to obtain these records. Pursuant to the April 2016 Board remand, complete updated private treatment records from L. Johnson, O.D., have been obtained. The Veteran’s service treatment records (STRs) are silent for any complaints, treatment, or diagnoses related to the eye. Post-service treatment records show that the Veteran began treatment with Dr. Johnson in March 2010. These records note his chief complaint of “blurred vision at near” and show normal clinical findings with 20/20 vision on examination. During his most recent May 2014 examination, the Veteran reported “having sand in his left eye in a sand storm in 1990 while in the military and that it causes allergies [in] that eye.” These records show an impression of emmetropia and presbyopia. Dr. Johnson did not provide comment on or diagnosis of impairment associated with having sand in the Veteran’s left eye, including watery eye. A February 2013 VA Gulf War general medical examination report notes the Veteran did not have any diagnosed illnesses for which no etiology was established. A March 2013 VA eye conditions examination report notes the Veteran complained of blurred vision when reading. Regarding a diagnosis, the examination report shows he does not now have and has not been diagnosed with an eye condition. Slit lamp and external eye examination was normal. The cornea, anterior chamber, iris, and lens were normal. There was no scarring or disfigurement attributable to any eye condition and there had been no incapacitating episodes. The examiner noted the Veteran has “presbyopia, normal ocular exam for age.” During his March 2014 Board hearing, the Veteran testified that his left eye was injured while serving in Saudi Arabia during a sandstorm. He stated that sand became embedded in his eye and led to allergies (his eye constantly running), not vision problems. Refractive error is not a disease or injury within the meaning of applicable legislation [i.e., not a compensable disability]. 38 C.F.R. § 3.303(c), 4.9. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia and astigmatism. Id. Notably, regarding the impression of “emmetropia” provided by Dr. Johnson, an error of refraction or refractive error is defined as “deviation from optimal focusing of light (emmetropia) by the lens of the eye onto the retina, such as myopia, hyperopia, astigmatism, or anisometropia. Dorland’s Illustrated Medical Dictionary Online (32nd Ed. 2012). In addition, presbyopia is defined as “hyperopia and impairment of vision due to advancing years or to old age...” Id. As noted above, pursuant to the September 2015 Memorandum Decision and April 2016 Board remand, complete records of eye treatment identified by the Veteran have been obtained. These records do not show, or even suggest, that he has a compensable eye disability, i.e., there is no evidence that he has an eye disability, including a disability manifested a watery eye, that was incurred or aggravated in service. Service connection is also not warranted for watery eye on a presumptive basis under the legislation specific to Persian Gulf War Veterans because there were no objective signs of watery eye perceptible to the March 2013 VA examiner or during the course of VA and/or private treatment so that the Veteran’s subjective complaints could be verified independently. See 38 C.F.R. § 3.317. While the Veteran believes that he has a watery left eye due to injury sustained in service, as a lay person, the Veteran is not shown to have specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of a disability manifested by watery eye is a matter not capable of lay observation, and requires medical expertise to determine. Accordingly, the Veteran’s opinion in this matter is not competent medical evidence. The preponderance of the evidence is against the claim of service connection for a left eye disability; therefore, the benefit of the doubt rule does not apply and the appeal as to this matter must be denied. Gilbert v. Derwinski, 1 Vet. App. at 54-56. REASONS FOR REMAND The April 2016 Board remand ordered an examination of the Veteran, with the examiner asked (in light of the standard of proof that must be applied in this case) to provide an opinion as to whether there is “clear and unmistakable (i.e., obvious, manifest, or undebatable) that the Veteran’s hypertension pre-existed his tour of duty that began in September 1990, even if there is no record of blood pressure taken two or more times on at least three different days.” On June 2017 VA hypertension examination, the examiner opined that the “Veteran was diagnosed with essential hypertension in the 1980s prior to active service.” This opinion is not responsive to the April 2016 Board remand. Specifically, the opinion does not show consideration of the fact that there are no blood pressure readings on which the diagnosis of hypertension was based and the examiner did not use the correct legal standard (i.e., “clear and unmistakable evidence”) that hypertension pre-existed his tour of duty that began in September 1990. As such, the question of whether there is clear and unmistakable evidence that the Veteran’s hypertension pre-existed his tour of duty that began in September 1990 remains unresolved. Pursuant to the September 2015 Memorandum Decision, the April 2016 Board remand also instructed the AOJ to verify the character and dates of the Veteran’s periods of service in which he alleges he was diagnosed with hypertension (1989-1990) and sustained a right knee injury (1992) and state definitively whether or not such service was federalized service, and whether it was active duty, ACDUTRA or INACDUTRA. Although the Veteran’s service personnel records have been obtained and include “ Supplemental Detailed Reports” from the National Guard for 1994 to 1999, verification of the nature of the identified periods of service (1989-1990 and 1992) has not been accomplished. The matter is REMANDED for the following action: 1. Take additional action to verify the character and dates of the Veteran’s periods of service in which he alleges he was diagnosed with hypertension (1989-1990) and sustained a right knee injury (1992). a) Contact the Defense Finance and Accounting Service (DFAS) and request the Veteran’s Master Military Pay Account (MMPA), National Personnel Records Center (NPRC), National Guard or any other appropriate agency. b) As to each period from 1989-1990 and in 1992, state definitively whether or not it was federalized service, and whether it was active duty, ACDUTRA or INACDUTRA. Efforts to obtain this information must be continued unless it is conclusively established that such information is unavailable, and that any further search would be pointless. If that occurs, certify the unavailability of the records and notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 2. The AOJ must contact the VA examiner who examined the Veteran in June 2017 in connection with his claim for service connection for hypertension and request that he provide a supplemental medical opinion. [If that provider is unavailable, the record should be forwarded to another appropriate examiner for review and the opinion sought. If another examination is needed for the opinion sought, it should be arranged.] Based on a review of the record, the opinion provider should address the following: a) Is there clear and unmistakable (obvious, manifest, or undebatable) evidence that the Veteran’s hypertension pre-existed his tour of duty that began in September 1990, even if there is no record of blood pressure readings taken two or more times on at least three different days? The opinion provider should consider and discuss as necessary: the May 1989 STR showing a blood pressure reading of 140/80 and noting that he was taking blood pressure medication; his March 2014 hearing testimony that he was diagnosed with hypertension during his physical examination for highway patrol and he discontinued the prescribed medication in 1990, when he was activated to Saudi Arabia; and the Annual Medical Certificates noting HBP (high blood pressure), no medication, contained in the STRs. b) If the opinion provider finds that hypertension did not clearly and unmistakably exist prior to the tour of duty that began in September 1990, when was hypertension first manifested? The opinion provider should consider and discuss as necessary the fact that VA regulations provide that a diagnosis of hypertension must be confirmed by readings taken two or more times on at least three different days. c) If the opinion provider finds that hypertension did not clearly and unmistakably exist prior to the tour of duty that began in September 1990, please provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension is related to any period of service. The opinion provider must explain the rationale for all opinions, citing to supporting clinical data and/or medical texts/treatises as deemed appropriate. - If an opinion cannot be made without resort to speculation, the opinion provider should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Hughes, Counsel