Citation Nr: 18146558 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 14-14 604 DATE: October 31, 2018 ORDER Service connection for a left eye disorder is denied. REMANDED Entitlement to service connection for a low back disorder is remanded. FINDING OF FACT A left eye disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and glaucoma did not manifest within one year of service discharge. CONCLUSION OF LAW The criteria for service connection for a left eye disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to January 1970, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2014, the Veteran and an unidentified witness testified before a Decision Review Officer (DRO) at the RO and, in August 2014, the Veteran and his fiancé testified at a Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings have been associated with the record. In September 2016, the Board remanded the issues listed on the title page of this decision, as well as claims for service connection for an acquired psychiatric disorder and skin disorder, for additional development. In a March 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for other specified trauma and stressor-related disorder and tinea pedis and cruris. As such are full grants of the benefits sought on appeal with respect to these issues, they are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). The remaining issues now return for further appellate review. The Board observes that, subsequent to the AOJ’s most recent adjudication of the Veteran’s claims in the July 2017 supplemental statement of the case, he submitted additional evidence through his representative in March 2018. 38 U.S.C. § 7105(e)(1). 1. Entitlement to service connection for a left eye disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Generally, service connection may not be granted for congenital or developmental defects, such as refractive error of the eye, as these are not considered a disease or injury for the purpose of determining service connection. See 38 C.F.R. §§ 3.303(c), 4.9; VAOPGCPREC 82-90 (July 18, 1990). However, service connection may be granted if a congenital defect is subject to a superimposed disease or injury during service which results in additional disability. Id. Additionally, where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include organic diseases of the nervous system (including glaucoma), a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In a January 2010 written correspondence, the Veteran reported that he injured his left eye during service. Additionally, during the August 2014 Board hearing, he testified that, while in basic training, he used a machine with an arm that flung back and hit him in the face. He further testified that, at such time, he did not pay much attention to his injury and shook it off. The Veteran also indicated that he currently saw a doctor for his left eye approximately every four months and used eye drops to relieve the pressure in his eye. Thus, the Veteran contends that service connection for a left eye disorder is warranted. The Veteran’s service treatment records (STRs) are negative for an injury to the left eye. However, such reflect that he had defective distant vision in a January 1968 Report of Medical Examination. Additionally, a February 1987 Report of Medical Examination indicates that he had a refraction error in both eyes. The remainder of the STRs were negative for any complaints, treatment, or findings referable to the left eye. Post-service treatment records reflect an impression of glaucoma in the Veteran’s left eye in January 2009. The Veteran was afforded a VA examination in October 2012, at which time he reported that he was diagnosed with bilateral glaucoma approximately 10-15 years previously and had treated such with topical ophthalmic drops. He further stated that he had not officially been diagnosed with diabetes, but was told by his private physician that he was borderline. Additionally, the Veteran indicated that his last eye examination was less than six months previously. Following an interview with the Veteran and a physical examination, the VA examiner diagnosed open angle bilateral glaucoma since approximately 10-15 years previously, and mild bilateral cataracts since at least 2012. Here, he ultimately opined that the Veteran’s mild cataracts were at least as likely as not related to diabetes per medical literature; however, the Veteran did not meet the current diabetes criteria. The examiner further found that the Veteran’s glaucoma could not be related to his diabetes as he did not have diabetes at that time. However, as the Board explained in its September 2016 remand, the October 2012 VA examiner indicated that STRs and private treatment records were not reviewed. Accordingly, the Board remanded for a new VA examination, which was conducted in October 2016. During the October 2016 VA examination, the Veteran reported that he was seen one time a year by his private ophthalmologist who treated him for glaucoma and used prescription eye drops once a day. He further reported that he was hit in the left eye while in basic training with a shield on the end of a bayonet; however, he was not treated for such injury. Additionally, the Veteran indicated that he was told that his eye was “torn in back.” He recalled undergoing laser treatment for his left eye glaucoma by his private ophthalmologist approximately four years previously, but did not recall any mention of a tear or other findings referable to his retina by his glaucoma specialist. Following an interview with the Veteran, a review of the record, and a physical examination, the VA examiner diagnosed retinal pigment epithelial hypertrophy since October 2016; open angle bilateral glaucoma since approximately 2011; and age-related bilateral cataracts since October 2012. He ultimately opined that the Veteran’s left eye disorders were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale for the opinion, the examiner indicated that there was no evidence of retinal hole, tear, detachment, or macular changes in the Veteran’s right or left eye, which at least as likely as not would occur with blunt trauma to the eye. He further indicated that the Veteran’s apparent retinal pigment hypertrophy inferior nasal in the left eye was not consistent with such type of injury. Here, the examiner explained that the location was also not consistent with the type of ocular trauma reported by the Veteran. He further indicated that the Veteran’s glaucoma and cataracts were not related to his ocular injury history. Subsequently, the Veteran submitted a private eye conditions Disability Benefits Questionnaire in March 2018. In this regard, diagnoses of primary open angle glaucoma and nuclear cataract since March 2016 were noted; however, etiological opinions for such diagnoses were not provided. The Board places great probative weight on the October 2016 VA examiner’s opinion that the Veteran’s diagnosed left eye disorders are not related to service. Specifically, such opinion was predicated on a full review of the record, to include the Veteran’s statements, his STRs, and post-service records. Moreover, the opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Furthermore, the examiner offered clear conclusions with supporting data, as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). There is no contrary medical opinion of record. In reaching this decision, the Board has considered the Veteran’s statements in support of his claim. In this regard, as a lay person, he is certainly competent to report matters that are readily observable. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, although he sincerely believes that his left eye disorder is related to his military service, such determination is a complex medical matter requiring training and experience which he does not possess. Specifically, the question of the etiology of the Veteran’s left eye disorder, diagnosed as retinal pigment epithelial hypertrophy, open angle bilateral glaucoma, and age-related bilateral cataracts, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of an eye disorder, such falls outside the realm of common knowledge of a lay person. See Jandreau, supra (lay persons not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board affords the Veteran’s statements as to the etiology of his left eye disorder no probative weight. Furthermore, to the extent that the Veteran has argued that he experienced left eye symptoms since his discharge from service, the Board finds such reports to be not credible. Here, his STRs are negative for glaucoma. Moreover, the Veteran’s post-service treatment records reveal that he was not diagnosed with glaucoma until 2009; approximately 39 years after discharge from service. Finally, there is no competent evidence relating his complaints of left eye symptoms to a diagnosis of glaucoma within his first post-service year. Therefore, the Board finds that presumptive service connection for glaucoma as a chronic disease, to include based on a continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Based on the foregoing, the Board finds that the Veteran’s left disorder is not related to service, and glaucoma did not manifest within one year of service discharge. Consequently, service connection for a left eye disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a left eye disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 2. Entitlement to service connection for a low back disorder. As relevant, in the September 2016 remand, the Board found that, while the Veteran’s STRs were negative for a back disorder, he testified that he believed that he strained his back while lifting heavy boxes and other supplies in performance of his warehouse/supply job while in service in Vietnam, and/or as a result of loading and unloading Vietnam battlefield casualties onto medivac helicopters at his August 2014 hearing. Consequently, the Board determined that the Veteran should be afforded a VA examination so as to determine the nature and etiology of his claimed low back disorder. In this regard, the examiner was requested to identify all low back disorders found to be present, and offer an opinion as to whether each disorder began during service or is related to any incident of service, and, if arthritis was diagnosed, whether such manifested within one year after his service discharge. Thereafter, the Veteran was afforded a VA examination in November 2016. While the examiner adequately addressed majority of the Board’s inquiries, she did not offer an opinion as to whether the Veteran’s diagnosed arthritis of the spine manifested within the year following his discharge from service. Therefore, an addendum opinion addressing such matter should be obtained. The matter is REMANDED for the following action: Return the record to the VA examiner who conducted the November 2016 VA examination. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. If the November 2016 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s low back arthritis manifested within one year of his service separation (i.e., by January 1971)? If so, please describe the manifestations. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel