Citation Nr: 18152560 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 10-03 752 DATE: November 23, 2018 ORDER Service connection for right eye diabetic retinopathy as secondary to the service-connected diabetes mellitus is granted. Service connection for a left eye disorder as secondary to the service-connected diabetes mellitus is denied. Service connection for a rectum disorder, including as secondary to the service-connected hemorrhoids, is denied. Service connection for a gastrointestinal disorder, including as secondary to the service-connected hemorrhoids, is denied. FINDINGS OF FACT 1. The currently diagnosed right eye disorder, diabetic retinopathy, was caused by the service-connected diabetes mellitus. 2. The Veteran has current diagnoses of left eye cataracts, diplopia, and tropia. 3. The current left eye disorders of diplopia and tropia either are refractive errors of the eye. 4. The left eye cataracts are not etiologically related to service, to include injury to the left eye during service. 5. The current left eye disorder is not causally related to or worsened in severity by the service-connected diabetes mellitus. 6. The Veteran has a current rectum and gastrointestinal diagnosis of colon and intestinal polyps. 7. The current polyps are not etiologically related to service. 8. The current polyps are not causally related to or worsened in severity by the service-connected hemorrhoids. CONCLUSIONS OF LAW 1. The criteria for service connection for right eye diabetic retinopathy as secondary to the service-connected diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for service connection for a left eye disorder, to include as secondary to the service-connected diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 4.9. 3. The criteria for service connection for a rectum disorder, including as secondary to the service-connected hemorrhoids, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for service connection for a gastrointestinal disorder, including as secondary to the service-connected hemorrhoids, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from December 1974 to December 1977, April 1979 to April 1981, and from June 1981 to April 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2008 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection for rectum problems, gastrointestinal problems, and eye problems. In May 2013, the Veteran testified at a Travel Board hearing from the RO in Nashville, Tennessee, before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. In March 2014, the Board, in pertinent part, denied service connection for a gastrointestinal disorder, and remanded for additional development the issues of service connection for rectum problems, and eye problems. The Veteran appealed the Board’s denial of service connection for a gastrointestinal disorder to the United States Court of Appeals for Veterans Claims (Court). In June 2015, the Court partially vacated the Board’s March 2014 decision pursuant to a Joint Motion for Partial Remand. The parties to the Joint Motion for Remand requested that the Court vacate the Board’s decision on the basis of agreement that the Board did not provide an adequate reasons and bases as to whether the Veteran was entitled to a VA examination for the claimed gastrointestinal disorder. In October 2015, the Board, in pertinent part, remanded the issues of service connection for an eye disorder, gastrointestinal disorder, and polyps for additional development, including VA examinations and medical opinions. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the October 2015 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Service Connection Legal Criteria Under the relevant laws and regulations, 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; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. The Veteran is currently diagnosed with diabetic retinopathy of the right eye; cataracts, diplopia, and tropia of the left eye; and colon and intestinal polyps, which are not listed as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b), 3.307, and 3.309 do not apply as to these issues. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to direct service connection (discussed above), service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. 38 C.F.R. § 3.310(c). 1. Service Connection for Right Eye Diabetic Retinopathy The Veteran contends that service connection is warranted for eye problems. Specifically, the Veteran contends that the eyes were injured during service when white gas (Blazo) from a lantern exploded in his face and eyes. Alternatively, the Veteran contends that the current eye problems are the result of the service-connected diabetes. See May 2013 Board hearing transcript, December 2009 Statement in Support of the Claim. An April 2014 rating decision granted service connection for diabetes. VA treatment records reflect that the Veteran has a diagnosis of diabetic retinopathy of the right eye. See November 2012, February 2014 VA treatment records. After reviewing all the evidence, both lay and medical, the Board finds that the evidence is in equipoise on the question of whether right eye diabetic retinopathy was caused by the service-connected diabetes. The evidence of record reflects a history of diabetes since 2003, with poor control over the years due to noncompliance with diet and treatment. See June 2014 VA treatment record. VA provided an eye examination in June 2016, during which diabetic retinopathy was not evidenced at the time. See June 2016 VA examination report. However, the Veteran was noted to have mild nonproliferative diabetic retinopathy in the right eye in previous years during the pendency of the claim. See November 2012, February 2014 VA treatment records. The requirement of a current disability is satisfied when a veteran has a disability at the time he files a service connection claim, during the pendency of that claim, or just prior to the filing of a claim, even if the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Given the diagnosis of mild right eye diabetic retinopathy during the pendency of the claim, which is indicative of a causal relationship between right eye diabetic retinopathy and the service-connected diabetes, the Board resolves reasonable doubt in the Veteran’s favor to find that right eye diabetic retinopathy was caused by the service-connected diabetes. Based on the above, and resolving reasonable doubt in favor of the Veteran, service connection for right eye diabetic retinopathy as secondary to the service-connected diabetes is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The grant of secondary service connection renders moot other theories of service connection. 2. Service Connection for a Left Eye Disorder As discussed above, the Veteran contends that service connection is warranted for eye problems due to a Blazo gas explosion with injury to the eyes during service, or as due to the service-connected diabetes. See December 2009 Statement in Support of the Claim, May 2013 Board hearing transcript. The Board finds that the Veteran has a current left eye disorder of cataracts and refractive errors of diplopia and tropia. See June 2016 VA examination report, February 2014 VA treatment record. Diplopia is double vision. Tropia is a deviation of an eye from the normal position with respect to the line of vision when the eyes are open. After a review of all the evidence, both lay and medical, the Board finds that the weight of the evidence is against a finding that the current left eye disorder is causally related to service, to include injury to the eye during service. In February 1982 the Veteran presented with complaints of pain in the left eye when exposed to light, but evidenced no redness or irritation in the left eye, so was advised to avoid bright lights and irritants. In February 1982 during service, the Veteran presented with complaints of Blazo (white gas) to both eyes. The eyes were irrigated within five minutes of the accident with tap water and Visine and then irrigated for another five to 10 minutes with a saline solution. Visual acuity remained 20/20 in both eyes following the injury, so the Veteran was released with eye medications for irritation. See February 1982 service treatment records. The record reflects no additional symptoms, treatment, or diagnosis of eye problems from the time of the1982 injury until service separation in 1996. Moreover, the Veteran denied eye trouble at service separation and visual acuity in the left eye was 20/15. See January 1996 service treatment record. Problems with blurred vision were first reported in 2002, 20 years after the 1982 in-service injury and six years after service separation. See March 2002 VA treatment record. Treatment notes dated 2003 through 2004 show a small insignificant corneal scar on the right eye, but no scarring on the left eye and no radiographic evidence of metallic densities in the eyes. See August 2003 VA treatment records, March 2004 VA treatment records. In June 2005 the Veteran reported problems with vertical and horizontal diplopia since childhood that he compensated for by tilting his head. Diagnosis was refractive error in the eyes, which was treated with corrective lenses with prism. See June 2005. Treatment records dated 2006 through 2014 continue to reflect diagnosis of refractive error and a new onset of trace incipient cataracts in the left eye, without ophthalmic manifestations of diabetes, to include retinopathy in the left eye. See June 2006, September 2007, November 2012, February 2014 VA treatment records. VA eye examinations were provided in June 2014 and June 2016. Diagnoses of the left eye were cataracts and vertical diplopia and tropia. See June 2014 and June 2016 VA. In a July 2018 addendum medical opinion, the VA examiner opined that the diplopia, tropia, and cataracts were less than likely related to any history of in-service injury. The VA examiner reasoned that the Veteran reported an approximately 40-year history of diplopia during the 2016 VA examination that has been correctible with prism, so is not likely related to the history of eye injury during service. Moreover, the Veteran’s cataracts were minimal during the 2016 VA examination, so were not likely related to the history of injury many years prior during service. See July 2018 VA addendum opinion. The Board finds the July 2018 opinion to be probative in light of the record as a whole, which reflects no complains of vision problems until approximately 20 years after the 1982 in-service injury, and the Veterans’ lay report of problems with diplopia since childhood, which weighs against a nexus between the current left eye disorder and the in-service injury. Moreover, as to the refractive errors of diplopia and tropia, refractive error is not a disease or injury for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. As for the Veteran’s contention that service connection for a left eye disorder is warranted as secondary to the service-connected diabetes, the Board finds that the preponderance of the evidence is against a finding that a left eye disorder was caused or worsened in severity by (aggravated by) the diabetes. While the record reflects diagnosis of refractive error and cataracts between 2005 and 2011, the Veteran endorsed problems with refractive error (diplopia) since childhood, prior to the 2003 diagnosis of diabetes, and was noted to have no ophthalmic manifestations of diabetes during this time. See June 2005, September 2007, November 2008, December 2009, May 2011 VA treatment records. Recent treatment notes only reflect diabetic retinopathy in the right eye, but no evidence of retinopathy in the left eye. See November 2012, February 2014 VA treatment records. Although the Veteran contends that the current left eye disorders, to include cataract and refractive error, are related to the in-service eye injury or the service-connected diabetes, there is not competent medical evidence of a nexus between the current left eye disorder and the in-service eye injury or service-connected diabetes mellitus. As a lay person, the Veteran is competent to report any vision symptoms he has experienced at any given time; however, under the specific facts of the case that show in-service eye irritation and Blazo gas exposure with 20/20 visual acuity at the time of injury, no additional visual complaints for years after the in-service injury, and reports of refractive error since childhood and many years prior to diagnosis right eye diabetes, the Veteran does not have the requisite medical training or credentials to be able to render a competent medical opinion regarding the cause of his current left eye disorder. The etiology of the left eye disorder is a complex medical etiological question dealing with the origin and progression of the ophthalmologic disorder, diagnosed primarily on symptoms, clinical findings, and physiological testing. See Moray v. Brown, 5 Vet. App. 211 (1993) (regarding causation of retinitis pigmentosa, veteran’s testimony of aggravation of pre-existing disability in service was not competent evidence of aggravation, which was medical in nature). For these reasons, the Veteran’s unsupported lay opinion under the specific facts of this case that include no visual complaints for many years after the in-service injury, no complaints of a left eye disorder until years after the service injury, and reports of refractive error since childhood, is of no probative value. The Board has considered the medical article the Veteran submitted that indicates that diabetes can cause eye problems such as diabetic retinopathy, macula edema, and cataracts; however, the Board gives this article little probative value as it provides general information of potential manifestations of diabetes and does not provide a nexus between the current specific left eye disorders and service, including the service-connected diabetes based on case specific facts and history of the current left eye disorders. See September 2018 correspondence. The VA examiner in June 2014 opined that the cataracts were less than likely proximately due to or the result of the service-connected diabetes, as the type of cataracts the Veteran has are not known to be related to diabetes. See June 2014 VA examination. The VA examiner in June 2016 opined that diplopia and cataracts were less than likely caused or aggravated by the service-connected diabetes mellitus. The June 2016 VA examiner reasoned that, while diabetes can cause diplopia, the Veteran had diplopia more than 20 year prior to diagnosis of diabetes, so the diplopia is not likely correlated to diabetes. Moreover, the Veteran had very minimal non-visually significant cataracts at the time of the 2016 VA examination, which more so correlated to his age at 60 years old than to the diagnosis of diabetes. Additionally, the VA examiner assessed no aggravation of the diplopia or cataracts by the service-connected diabetes, as the Veteran denied any worsening of dipoplia, which was diagnosed many years ahead of diabetes, over the years. Further, worsening of cataracts was not evidenced, as the cataracts remained minimal at the time, which is on par with expected age-related changes and did not indicate any worsening by the service-connected diabetes. See June 2016 VA examination report. Considered in light of the record as a whole, the VA medical opinions are probative, as it considers the Veteran’s contention and provides an opinion with rationale based on a review of the record, which reflects problems with diplopia (refractive error) many years prior to diagnosis of diabetes, and no indication of worsening diplopia or cataracts since diagnosis of diabetes pursuant to medical and lay evidence. Based on the evidence of record, the weight of the competent and credible evidence is against a relationship between the Veteran’s current left eye disorder and active service, including as caused or aggravated by the service-connected diabetes mellitus. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a left eye disorder on a direct, secondary, or any other basis, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Service Connection for a Rectum Disorder 4. Service Connection for a Gastrointestinal Disorder The Veteran generally contends that service connection is warranted for a rectum disorder. Specifically, the Veteran contends that eating MERs (meal, ready to eat) for two to three weeks during service caused problems such as hemorrhoids and polyps during service that have continued since service separation. See May 2013 Board hearing transcript. The Board finds that the Veteran has a current disability of polyps, which has been diagnosed as a rectum and gastrointestinal disorder as reflected in the August 2014 and May 2016 VA examination reports. The Veteran also has a rectum disability of hemorrhoids, which is separate rectum disorder that is already service connected and is no longer before the Board. See September 2014 rating decision. After a review of all the evidence, both lay and medical, the Board finds that the weight of the evidence is against a finding that the current colon and intestinal polyps is causally related to service. Service treatment records show sporadic and episodic complaints of gastrointestinal or rectum symptoms. In March 1985, the Veteran reported symptoms of nausea, vomiting, and diarrhea, for which diagnosis was viral syndrome. In January 1993 the Veteran was seen for complaints of headache, nausea, vomiting, and diarrhea, so was diagnosed with possible gastroenteritis. In January 1995, the Veteran was treated for nausea and vomiting since eating supper the previous night. Diagnosis was viral syndrome versus possible food poisoning. See March 1985, September 1993, January 1995 service treatment records. During the January 1996 service separation examination, Veteran reported a history of pile or rectal disease and the military physician noted a history of problems with hemorrhoids. The Veteran otherwise denied frequent indigestion and stomach, liver, or intestinal problems, and clinical evaluation of the abdomen, viscera, anus, and rectum were normal on examination. January 1996 service treatment record. Post-service treatment records prior to the April 2008 Claim reflect reports of gastrointestinal complaints in the context of complaints of anxiety. In 2002, the Veteran reported “bubbling stomach” nausea, crampy abdominal pain, and diarrhea symptoms on weekdays when he went to work, but no symptoms on the weekends. The Veteran reported that the symptoms started under his present supervisor and endorsed a similar problem in 1996 when he was going through a divorce. Examination revealed a soft nontender abdomen with normal bowel sounds, no hepatosplenomegaly, and normal rectum without rectal mass or blood. Diagnosis was anxiety with insomnia and abdominal pain, rule out irritable bowel syndrome. Gastrointestinal problems were thereafter denied in 2003. See March 2002, March 2003 VA treatment records. A May 2004 treatment note reflects reports of feeling anxious with multiple complaints including difficulty breathing, mild nausea, chest tightness, and feeling of gas or heart burn. The Veteran also reported soft stool but denied abdominal pain. Diagnosis was dyspepsia rule out gastritis and anxiety reaction with multiple complaints. See May 2004 VA treatment record. In 2005, the Veteran reported a history of hemorrhoids and intermittent rectal bleeding of years duration, mainly when wiping, and occasional gastrointestinal reflux symptoms, but otherwise reported normal bowel movements, seldom abdominal pain or discomfort, stable appetite and weight, and no nausea, vomiting, hematemesis. Diagnosis was history of hemorrhoids and intermittent rectal bleeding. A small polyp is first diagnosed and removed during a March 2007 colonoscopy, 11 years after service separation. See August 2005, October 2005, March 2007 VA treatment records. Since the April 2008 claim, a follow up March 2014 colonoscopy showed a benign polyp that was removed during the procedure; however, the record is silent as to additional symptoms, diagnosis, or treatment for any other non-service-connected rectum or gastrointestinal disorders. See May 2014 VA treatment record. The requirement of a current disability is satisfied when a veteran has a disability at the time he files a service connection claim, during the pendency of that claim, or just prior to the filing of a claim, even if the disability resolves prior to adjudication of the claim. See McClain, 21 Vet. App. at 321; Romanowsky, 26 Vet. App. 289. In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). VA rectum and gastrointestinal examinations were provided in August 2014 and May 2016. Diagnoses were colon and intestinal polyps. In August 2014, the VA examiner opined that the polyp condition was less than likely related to service, as the evidence of record did not show an onset of polyps during service and the most recent episode of polyps was found six months prior to examination. In a July 2018 addendum medical opinion, the VA examiner opined that a review of the record only supported a diagnosis of polyps and hemorrhoids (service connected), but is silent as to current problems of irritable bowel syndrome, gastritis, dyspepsia, and hematochezia and a current assessment of these conditions is not supported by the record. In light of the evidence as a whole, the Board finds the opinion to probative, as they consider the service and post-service evidence, which reflects no evidence of polyps during service, or until many years after service, and no evidence of symptoms, diagnosis, or treatment for any other non-service-connected gastrointestinal or rectum disorders since the April 2008 Claim; despite intermittent treatment for viral syndrome during service, and additional reports gastrointestinal or rectum symptoms between 2002 and 2005. As for the Veteran’s contention that service connection for the gastrointestinal and rectum disorder, polyps, is warranted as secondary to the service-connected hemorrhoids, the Board finds that the preponderance of the evidence is also against a finding that the polyps disorder was caused or worsened in severity by (aggravated by) the hemorrhoids disability. The VA examiner in August 2014 opined that hemorrhoids and polyps are two separate conditions with no causal connections. Similarly, in May 2016, the VA examiner opined that polyps were less than likely caused or aggravated by the service-connected hemorrhoids. The VA examiner explained that polyps and hemorrhoids develop from different etiologies and was likely the result of a post-military illness or condition. Moreover, medical evidence does not support a pathology whereby hemorrhoids would worsen the natural progression of polyps. See August 2014, May 2016 VA examination reports. Considered in light of the record as a whole, the VA medical opinions are probative, as they consider the Veteran’s contention and history and provide an opinion with rationale based on a review of the record and other medical literature. (Continued on the next page)   Based on the evidence of record, the weight of the competent and credible evidence demonstrates no relationship between the Veteran’s current colon/intestinal polyp disorder and active service, including as caused or aggravated by the service-connected hemorrhoids. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for the rectum and gastrointestinal disorder of polyps on a direct, presumptive, secondary, or any other basis, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Moore, Associate Counsel