Citation Nr: 18153386 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-47 889 DATE: November 27, 2018 ORDER New and material evidence has been submitted sufficient to reopen a claim for entitlement to service connection for simple myopia with presbyopia both eyes and the application to reopen the claim is granted. Entitlement to service connection for a bilateral eye disability, to include simple myopia with presbyopia and mild nuclear sclerotic cataracts with cortical spokes is denied. Entitlement to service connection for an undiagnosed illness is denied. REMANDED Entitlement to service connection for a nerve condition of the left knee is remanded. Entitlement to service connection for a nerve condition of the right knee is remanded. Entitlement to an increased rating greater than 10 percent for a medial meniscal tear of the left knee is remanded. Entitlement to an increased rating greater than 10 percent for a chronic right knee disability with osteoarthritis is remanded. FINDINGS OF FACT 1. A final October 2010 Board decision denied entitlement to service connection for myopia with presbyopia of the eyes, claimed as defective vision. 2. Evidence received since the October 2010 Board decision is new, material, and probative as to the myopia with presbyopia of both eyes claim. 3. The preponderance of the evidence is against finding that the Veteran has a bilateral eye disability due to a disease or injury in service, to include specific in-service injury or disease. 4. The Veteran does not have an undiagnosed illness due to service in Southwest Asia and his symptoms and diagnoses claimed to be linked to this claim were not manifest in service (other than his service-connected tinnitus and right and left knee disabilities), within one year of separation from service, and are not otherwise attributable to service. CONCLUSIONS OF LAW 1. The October 2010 Board decision that found that a bilateral eye disability was not incurred in or aggravated by active service. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1100 (2018). 2. Evidence received since the October 2010 Board decision in relation to the Veteran’s claim for entitlement to service connection for myopia with presbyopia of the eyes is new and material, and, therefore, the claim is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for simple myopia with presbyopia both eyes have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2018). 4. The criteria for undiagnosed illness have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.317 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from September 1982 to October 1987, from January 1991 to April 1991, and from February 2003 to August 2003. As an initial matter, the Board notes that the issue of entitlement to an increased rating greater than 10 percent for a chronic right knee disability was certified to the Board in October 2016. Thereafter, in a March 2017 rating decision the RO granted entitlement to service connection for arthritis in the right knee and combined the right knee arthritis disability with the chronic right knee disability previously service connected. The RO continued the 10 percent disability rating for a “chronic right knee disability with osteoarthritis.” The Veteran appealed the March 2017 rating decision and ultimately that issue was certified to the Board in July 2017. As such, the Board has listed the issue as entitlement to an increased rating greater than 10 percent for a chronic right knee disability with osteoarthritis, which contemplates both the original and new right knee increased rating claim following the March 2017 rating decision and as the RO listed the overarching issue in that rating decision and subsequent Statement of the Case. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). To establish a right to compensation for a present disability, an appellant 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Whether new and material evidence has been submitted sufficient to reopen a claim for entitlement to service connection for myopia with presbyopia both eyes The Veteran contends that he has a bilateral eye disability that had its onset during his active service. In an October 2010 determination the Board denied the Veteran’s claim for entitlement to service connection for myopia with presbyopia of the eyes. The Veteran did not timely appeal that decision and the Board determination became final. See 38 C.F.R. § 20.1100 (2018). As a result, the claim of entitlement to service connection may now be considered if new and material evidence has been received since the time of the last final adjudication. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). Under 38 C.F.R. § 3.156(a), evidence is considered “new” if it was not of record at the time of the last final disallowance of the claim. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Finally, new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, when determining whether the Veteran has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). Again, the Veteran contends that he has a bilateral eye disability that had its onset during his active service. The October 2010 Board decision denied the bilateral eye claim because refractive error of the eyes was not a disability within the meaning of applicable legislation for disability compensation purposes and there was no evidence that the Veteran had a current eye disease or anatomical defect other than refractive error. The evidence of record at the time of this Board decision consisted of the Veteran’s service treatment records (STRs) and post-service treatment records. The STRs included bilateral 20/20 vision at entrance into service in May 1982. By the time of a June 1987 examination, however, the Veteran had uncorrected distant vision of 20/100 in this right eye and 20/70 in the left eye. Uncorrected near vision was measured bilaterally as 20/25. Visual acuity at both distances were correctable with lenses. A June 1987 examiner reported that the Veteran had normal eyes (other than visual acuity and refraction). Examination reports in December 1995 and July 2000 contained similar results and the Veteran denied wearing corrective lenses on both occasions. The Veteran’s service treatment records documented no in-service eye injuries or other disabilities. Post-service treatment records documented a diagnosis of simple myopia with presbyopia. In his December 2007 substantive appeal, the Veteran reported that his eye condition was related to service because he did not have eye problems before entering service and that his eyes worsened in service because he was constantly looking at radar signals that made his eyes worse. Since the October 2010 Board decision, the record included diagnoses of mild nuclear sclerotic cataracts with cortical spokes. As an initial matter, the Board recognizes that the diagnosis of mild nuclear sclerotic cataracts with cortical spokes differs from the prior adjudicated eye claim of myopia with presbyopia in both eyes. That said, the Veteran’s original claim was “defect[ive] vision in both eyes” and the October 2010 Board determination did conclude that “the preponderance of the evidence is against the Veteran’s claim for service connection for bilateral eye disability.” In context, it is clear that while the Board styled the claim as entitlement to service connection for “myopia with presbyopia of the eyes, claimed as defective vision” that it was adjudicating a bilateral eye disability claim. Moreover, the Court has held in Clemons v. Shinseki, 23 Vet. App. 1 (2009) that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such, the foregoing diagnosis relates to the acquired bilateral eye claim on appeal. Pursuant to the Court’s holding in Shade and presuming the credibility of the evidence for the sole purpose of determining whether the bilateral eye disability claim should be reopened, the Board concludes that the above evidence shows a bilateral eye disability that is not congenital in nature, which was the basis for the prior final denial of the claim. The evidence is new and material. Having reopened the claim, the Board will adjudicate the claim on the merits below. 2. Entitlement to service connection for a bilateral eye disability, to include simple myopia with presbyopia and mild nuclear sclerotic cataracts with cortical spokes Having determined that the claims are reopened, the Board must next determine whether it will be prejudicial to the appellant for the Board to address the merits of the claims. See Bernard v. Brown, 4 Vet. App. 384 (1993). Here, the Board may proceed to adjudicate the merits of the claims of entitlement to service connection without prejudicing the appellant, because while the RO ostensibly contended that new and material evidence had not been received, it clearly evaluated the claim on the merits. The July 2013 rating decision discussed the March 2013 documenting a new diagnosis of cataracts, but found that because “the onset of your claimed eye condition was two years ago, which would indicate it started in 2011, and you were separated from service in August 2003 you’re your eye condition began eight years after service, and therefore there is no relationship to service.” Cf. Bernard, 4 Vet. App. at 394 (where Board proceeds to merits of a claim that the RO has not previously considered, the Board must determine whether such action prejudices the appellant); see also VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Thus, the Board is addressing a question already considered by the RO. Therefore, there is no prejudice to the appellant. Bernard, 4 Vet. App. at 394. The Veteran has diagnoses of presbyopia, myopia, astigmatism, and mild nuclear sclerotic cataracts with cortical spokes. As to the myopia, presbyopia, and astigmatism, but refractive errors of the eyes are congenital or developmental defects and not disease or injury within the meaning of applicable legislation. 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, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Id. Thus, VA regulations specifically prohibit service connection for refractory errors of the eyes unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). The Board recognizes that the Veteran’s uncorrectable visual acuity worsened while in service and that he contends this was due to his job duties. That said, there is no lay or medical evidence to suggest that the in-service presbyopia was the result of a superimposed disease or injury. Therefore, service connection for myopia, presbyopia, or astigmatism is not warranted. As to the findings of mild nuclear sclerotic cataracts with cortical spokes, in March 2013 the Veteran sought treatment for a 2-year history of near vision blurriness in both eyes. At that time, he was first diagnosed with mild nuclear sclerotic cataracts with cortical spokes. (The Board notes that multiple subsequent optometry visits, including in April 2015 and January 2017 do not include diagnoses of cataracts.) Thus, the evidence indicates (at most) that the onset of the Veteran’s symptoms associated with his cataracts was multiple years after his final period of active service. There is no lay or medical evidence to attribute the cataracts or symptoms to the Veteran’s service including his contention that he had to view radar displays. Therefore, an additional VA examination is not warranted. While the Veteran believes his bilateral eye problems are related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing, such as determining the existence of congenital conditions and whether such conditions had a superimposed disease or injury. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). 3. Entitlement to service connection for an undiagnosed illness The Veteran contends that he has an undiagnosed illness due to his service in Southwest Asia. In his August 2013 notice of disagreement, the Veteran claimed that he had dysmetabolic syndrome X that constituted an undiagnosed illness. In his March 2017 substantive appeal, the Veteran claimed that his undiagnosed illness included muscle and joint pains, arthritis, hearing loss, and gastrointestinal symptoms. In order to obtain a grant of service connection pursuant to 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, a Veteran needs to present some evidence (1) that he or she is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval or air 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 (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a); see Neumann v. West, 14 Vet. App. 12, 22 (2000), vacated on other grounds, 14 Vet. App. 304 (2001) (per curiam order); Gutierrez v. Principi, 19 Vet. App. 1 (2004). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.117, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. Medically unexplained chronic multisymptom illnesses are defined by a cluster of signs or symptoms, and are currently limited to chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2); 75 Fed. Reg. 61995-97 (Oct. 7, 2010) (adding diabetes and multiple sclerosis as examples of chronic multi-symptom illnesses of partially understood etiology and pathophysiology). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural endoscopic, laboratory, or other objective signs or injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders included, but are not limited to IBS, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Note to 38 C.F.R. § 3.317(a)(2)(i)(B)(3). Medically unexplained chronic multisymptom illnesses are defined as a diagnosed illness without conclusive pathophysiology or etiology. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2); 75 Fed. Reg. 61995-97 (Oct. 7, 2010) (adding diabetes and multiple sclerosis as examples of chronic multi-symptom illnesses of partially understood etiology and pathophysiology). As to the Veteran’s contentions in this case, his dysmetabolic syndrome X is a diagnosed disorder and, as such, has been attributed to known clinical diagnoses. Therefore, entitlement to service connection under 38 C.F.R. § 3.317 is not warranted on the basis of his dysmetabolic syndrome X. As to his muscle and joint pains, arthritis, hearing loss, and gastrointestinal symptoms, on multiple occasions the Veteran has specifically denied muscle and joint pain during VA treatment visits. For example, in March 2016, and March 2017 he specifically denied muscle or joint pain. To the extent that he has reported ongoing pain in certain muscles and joints, the problems have been attributed to a specific diagnosis, such as his service-connected right and left knee disabilities. Documented arthritis is a diagnosed disability and is not an undiagnosed illness for VA compensation purposes. As to the Veteran’s hearing problems, his problems have been attributed to documented tinnitus. During a September 2006 VA examination, for example, the examiner found that the Veteran had clinically normal hearing acuity and that his problems were attributable to his bilateral tinnitus experienced since the 1980s (i.e. prior to his service in Southwest Asia) and temporary hearing loss during service in 1984 and 1985 (again, prior to his service in Southwest Asia). As to the Veteran’s gastrointestinal symptoms, there is no lay or medical evidence suggestive of a functional gastrointestinal disorder, as defined above, or complaints or treatment for gastrointestinal symptoms. The Board can find no basis to assess the Veteran’s claims of gastrointestinal problems, as he has denied such problems during treatment, such as in February 2005, and without specific discussion of any claimed gastrointestinal symptoms thereafter, other than the bare report in his substantive appeal. Again, there is no explicit lay or medical evidence otherwise attributing the Veteran’s claimed symptoms and service. To the extent that the Veteran’s contentions implicitly attempt to link his symptoms directly to service, to include his service in Southwest Asia, individuals can attest to factual matters of which he or she has first-hand knowledge and the Veteran’s assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). 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 the dysmetabolic syndrome X and all other relevant diagnosed disorders falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to” and mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). As such, the Board affords the Veteran’s contentions as to the etiology of his claimed symptoms no probative weight. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. REASONS FOR REMAND 1. Entitlement to service connection for a nerve condition of the left knee is remanded. 2. Entitlement to service connection for a nerve condition of the right knee is remanded. Regarding the claims of entitlement to service connection for nerves conditions of the left and right knee, the Veteran submitted a timely notice of disagreement with a September 2017 rating decision, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 3. Entitlement to an increased rating greater than 10 percent for a medial meniscal tear of the left knee is remanded. 4. Entitlement to an increased rating greater than 10 percent for a chronic right knee disability with osteoarthritis is remanded. The United States Court of Appeals for Veterans Claims (Court) held in Correia v. McDonald, 28 Vet. App. 158 (2016) that to be adequate a VA examination of the joints must, wherever possible, include the results of range of motion testing on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint in compliance with 38 C.F.R. § 4.59. The most recent VA examination report of the Veteran’s knees in December 2015 failed to include all the information directed by Correia and 38 C.F.R. § 4.59. The examination report included testing of the opposing knee joints and noted that there was evidence of pain with weight bearing in both knees, but otherwise failed to include any discussion of passive range of motion or non-weight bearing testing. As the Veteran is not in receipt of the maximum rating available for limitation of motion of the right or left knee, the Board finds that the VA examination reports of record do not comply with Correia and that a new examination is warranted. In addition, in a September 2017 statement the Veteran stated that his knee disabilities had “gotten worse over the years,” which suggests a worsening of his knee disabilities since his last examination in December 2015. The matters are REMANDED for the following action: 1. Issue a Statement of the Case that addresses the Veteran’s claims for entitlement to service connection for a nerve condition of the left and right knees. If, and only if, the Veteran perfects an appeal with respect to that claim, the AOJ should ensure that any indicated development is completed before the issue is certified for appellate consideration. 2. Associate with the electronic claims file all VA treatment record records from September 2017 to the present. 3. Schedule the Veteran for VA examinations to determine the current nature and severity of his right and left knee disabilities. The electronic claims file should be made available to and reviewed by the examiner. Full range of motion testing must be performed where possible. The joints involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. If the Veteran reports flare-up episodes not present during the examination, the examiner must provide an assessment of any additional loss of function based on the Veteran’s reporting. 4. After the above is complete, readjudicate the Veteran’s claims. If a complete grant of benefits is not awarded, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel