Citation Nr: 18147018 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-19 428A DATE: November 2, 2018 ORDER Entitlement to service connection for an eye disorder is denied. REMANDED The claim of entitlement to service connection for a back disorder is remanded. The claim of entitlement to service connection for residuals of appendicitis status post appendectomy, to include as due to exposure to contaminated water at Camp Lejeune is remanded. The claim of entitlement to service connection for depression, to include as secondary to service-connected bilateral knee disorders, is remanded. FINDING OF FACT The most probative evidence weighs against a finding that an eye disorder had onset during active service, manifested within one year of service discharge, or is otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for an eye disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1974 to July 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Duties to notify and assist Neither the Veteran nor his attorney 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 a duty to assist argument). Entitlement to service connection for an eye disorder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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) (2018). In addition, service connection for certain chronic diseases, including glaucoma, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has not provided any specific contentions with regard to his claimed eye disorder. In the April 2016 VA Form 9, the Veteran’s representative asserted that the Veteran wished to appeal his denial “on a direct and secondary basis.” It is unclear what service-connected disorder the representative is referring to when he asserts entitlement to service connection for an eye disorder on a secondary basis, particularly since the Veteran’s only service-connected disorders are his bilateral knee conditions. The Board will address the Veteran’s claim on any relevant theories of entitlement. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A November 2017 VA treatment record notes a history of blepharitis/dry eyes. The Veteran was noted to be a glaucoma suspect in October 2015 and a diagnosis was later rendered in March 2016. See March 2016 VA treatment record. Thus, a present disability is shown. Second, the Board finds that there was not an in-service injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran has not advanced a specific theory of entitlement for his claimed eye disorder. The STRs similarly do not show any eye complaints, treatment, or diagnoses. Absent an in-service event, service connection is not warranted. Third, the evidence of record does not support a finding that Veteran’s eye conditions are related to active service. In short, there is no competent evidence of record to suggest that the Veteran’s eye conditions had onset during service, that the disorders manifested to a compensable degree within one year of the Veteran’s separation from active duty, or that they are otherwise related to service. Further, there is no evidence to suggest that the Veteran’s eye conditions are secondarily related to a service-connected disorder. To the extent that the Veteran asserts his eye is related to service, the Board finds that his statements are not competent. Although it is error to categorically reject a lay person as competent to provide a nexus opinion, not all questions of nexus are subject to non-expert opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay witnesses are competent to report that which they have observed with their own senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). But here, the specific etiology of glaucoma or a history of blepharitis/dry eyes is not capable of lay observation as it is a complex internal process and is distinguishable from ringing in the ears, a broken leg, or varicose veins. See Jandreau, 492 F.3d at 1377; Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). Accordingly, the Board does not assign any probative weight to these statements. The Board finds that service connection is not warranted on direct, secondary, and presumptive bases. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND For all claims listed below, remand is required for adequate VA medical opinions. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). 1. Entitlement to service connection for a back disorder The Veteran asserts he has a low back disorder as a result of a fall sustained during his military service. The Veteran’s STRs document February 1976 treatment for low back pain from a fall six days earlier. The Veteran had slipped on ice. The Veteran had no rigidity and had full range of motion in his back. However, he was experiencing tenderness in the lumbar region. The examiner felt no spasms, and he diagnosed a hematoma. The Veteran was provided Tylenol for the pain. Post-service, there is evidence of chronic back symptoms. A January 2006 VA examination note documents a history of back pain in 2000. In addition, of record is a November 2006 statement from the Veteran’s brother, EB, who reported that the Veteran had been suffering for many years with serious back and joint problems since he served on active duty. In a statement received in July 2010, the Veteran reported that he had been suffering from back pain since he was in service. Finally, of record is a January 2011 opinion from Dr. CG, who noted that the Veteran had been seen at his clinic from September 1980 to October 1995 for recurrent arthritis pain over the low back. The Veteran had informed his doctor that he began experiencing this pain after he sustained an accidental fall in the military. Dr. CG opined that the Veteran’s overall pain is attributed to the old fracture of the lower back that never healed properly. VA provided an examination in February 2010. The Veteran had reported a history of back pain beginning two years earlier. X-rays at that time showed multilevel degenerative changes most severe at L4-L5 and L5-S1. The examiner opined that it would be resorting to mere speculation to determine whether the Veteran’s back disorder is service-connected. The examiner noted that there was one episode of a slip and fall documented in service, and there was no evidence presented to indicate that the Veteran had a persistent chronic low back pain as a result of that incident or any persistent dysfunction related to that. The Veteran did not seek any treatment until the previous two years, and even then, the documentation was really documenting treatment for the Veteran’s service-connected knee disorder, not the low back. At a July 2015 VA examination, the examiner noted that an STR documented an in-service fall on ice in February 1976. The Veteran had been diagnosed with a lumbar contusion, and no spasm or decrease in motion was noted. The Veteran’s present back symptoms had started approximately 10 years earlier and were due to age related joint degeneration. The examiner found that no connection was found between the Veteran’s present back condition and the injury sustained in 1976. The Board is unable to render a decision in the instant matter because both favorable and negative opinions for the Veteran’s low back disorder are not adequate. First, the private opinion does not provide adequate rationale to support a conclusion that the Veteran’s low back symptoms are related to his in-service fall. The STRs show a 1976 fall that resulted in a back hematoma. There is no mention of a fracture of the low back. The VA medical opinions rendered in February 2010 and July 2015 are similarly inadequate, as they do not account for the Veteran’s statements describing a history of low back pain since his service. Dr. CG’s January 2011 opinion corroborates the Veteran’s statements because the doctor noted a history of treatment for the Veteran’s back dating to September 1980. The November 2006 buddy statement from the Veteran’s sibling also corroborates his report that he had back pain since service. In light of the various sources of evidence describing continuous back pain since service and the inadequate opinions of record, a new opinion is required on remand. 2. Entitlement to service connection for residuals of appendicitis status post appendectomy, to include as due to exposure to contaminated water at Camp Lejeune The Veteran asserts he has residual complications of appendicitis as a result of his military service, to include is exposure to contaminants in the water supply at Camp Lejeune. The Veteran asserted he had appendicitis within a year of his separation from service. See statement received November 2009. In June 2014, VA received a May 2014 letter from Dr. AG indicating that the Veteran had undergone a surgery on in July 1979, which corroborates the Veteran’s statements reporting an appendectomy at that time. VA provided an examination in July 2011. The Veteran indicated that within two to three months of his separation from service, he began noticing right lower quadrant abdominal pain, which was intermittent. It progressively worsened, and he sought treatment with a private doctor. He was provided medication with slight resolution in the pain. It recurred, however, and in July 1979, he reportedly suffered from severe right lower quadrant pain and diagnosed with appendicitis. He subsequently underwent an appendectomy. The Veteran described his current residuals as a surgical scar that bothered him. He also noted that he had some nonspecific intermittent abdominal pain that was not localized to the appendectomy site. The examiner diagnosed appendectomy scar. The examiner opined that there was no proof that the Veteran’s appendicitis was due to the drinking of contaminated water. The examiner explained that appendicitis is usually the result of obstruction of the lumen of the appendix, which results in inflammation and may subsequently infection, and not the other way around. This opinion addresses whether the Veteran’s appendicitis and subsequent appendectomy are etiologically related to his military service. However, the opinion does not address whether the underlying condition that caused the appendicitis could have had onset during the Veteran’s service, which is raised through the Veteran’s statements when he emphasizes that the appendicitis occurred a very short time after he separated from active duty. 3. Entitlement to service connection for depression, to include as secondary to service-connected bilateral knee disorders In an October 2012 statement, the Veteran’s representative amended the Veteran’s claim to allege that his depression is secondarily related to the Veteran’s service-connected knee disability. The Veteran indicated that his knee disorder prevented sleep at night and that he experienced depression due to his service-connected knee disorders. At a July 2015 VA examination, the VA examiner affirmed that the Veteran met the criteria for unspecified depressive disorder. The examiner noted that the Veteran reported being depressed since around 1984, and he further noted that the Veteran had been treated with VA since 2009 for depression. However, based on his clinical interview with the Veteran, there was nothing to suggest that his service-connected left and right knee conditions caused or worsened his depression. The July 2015 VA examination is inadequate because there was no rationale provided to substantiate the examiner’s conclusion that there was nothing to suggest that the Veteran’s bilateral knee disorders caused or worsened the Veteran’s depression. Remand is appropriate, therefore, to obtain another opinion. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of residual complications of appendicitis status post appendectomy. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s appendicitis and underlying disorder had onset in, or is otherwise related to, active military service. The examiner must specifically address the Veteran’s reports of right lower quadrant pain in his abdomen within three months of his separation from active duty and his eventual diagnosis of appendicitis in July 1979 with contemporaneous appendectomy. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his low back disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back disorder had onset in, or is otherwise related to, active military service. The examiner must specifically address the February 1976 STR showing a low back injury, the Veteran’s statements describing back pain since service, and a January 2011 opinion from Dr. CG indicating that the Veteran had received treatment for his low back at his clinic since September 1980. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his claimed depression. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s depression had onset in, or is otherwise related to, active military service. The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the depression is caused or aggravated by the service-connected bilateral knee disorder. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel