Citation Nr: 18153477 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-50 465 DATE: November 27, 2018 ORDER Service connection for cyst of the right kidney is denied. REMANDED Entitlement to service connection for bilateral eye disability is remanded. FINDING OF FACT The Veteran’s cyst of the right kidney is not related to his military service. CONCLUSION OF LAW The criteria for service connection for cyst of the right kidney have not been met. 38 U.S.C. §§ 1110, 1101, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to service connection for lumbar strain with lumbar disc degeneration and intervertebral disc disorder was originally on appeal as well. However, in a November 2016 rating decision, the RO granted service connection, representing a full grant of benefits. Accordingly, this issue is no longer before the Board. As such, the only remaining issues on appeal is the service connection claims for cyst of the right kidney and bilateral eye disability. In the October 2016 substantive appeal (VA Form 9), the Veteran requested a local Board hearing before a Veterans Law Judge. The Veteran was scheduled for a May 2018 Board hearing and was given notification of such in a letter dated April 2018. However, the Veteran did not attend the hearing. As the Veteran did not request a postponement or subsequently submit a motion for a new hearing, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). Service Connection The Veteran contends that his cyst of the right kidney is related to his military service. He asserts that the cyst developed as a result of his exposure to burn pits while in service. The record reflects a current disability of cyst of the right kidney. See March 2017 VA examination. As such there is a current diagnosis and the question before the Board is whether it began during service or is at least as likely as not related to an in-service injury, event, or disease. After careful review of the evidence, the preponderance of the evidence is against finding that his cyst disability began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records do not indicate complaints of or treatment for any symptoms or disability related to the cyst of the kidney. VA treatment records show the Veteran was not diagnosed with cyst of the right kidney until 2012, years after his separation from service. In addition, the February 2012 VA medical record shows a diagnosis of benign cyst, with the examiner concluding that no further intervention was required. Further, the March 2017 VA examiner opined that the Veteran’s kidney cyst disability is less likely than not related to an in-service injury, event, or disease—including exposure to environmental hazards. The rationale was based on a review of the entire file and medical literature. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the Veteran believes his cyst of the right kidney is related to an in-service injury, event, or disease, including his in-service exposure to environmental hazards such as pit burning, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, and the Veteran is not competent to provide a diagnosis or opine as to the etiology of such disability. Consequently, the Board gives more probative weight to the March 2017 VA examiner. The preponderance of the evidence is against the Veteran’s claim, and service connection for right kidney cyst is denied. REASONS FOR REMAND A review of records within the appeal period show more than one diagnosis related to the claim for bilateral eye disability. Regarding disabilities that are subject to compensation under VA regulations the Veteran has been diagnosed with visual field defect, visual disturbance, and convergence insufficiency/oculomotor dysfunction. There is one medical opinion of record with respect to the bilateral eye disability claim. The March 2017 VA examiner opined that the Veteran’s convergence insufficiency/oculomotor dysfunction was related to his service-connected traumatic brain injury(TBI). However, despite also diagnosing the Veteran that day with visual field defect she did not provide an opinion as to its etiology. The RO granted service connection for convergence insufficiency/oculomotor dysfunction in a September 2017 rating decision, assigning a noncompensable disability rating under Diagnostic Code 6090. The Board notes that the disability of visual field defect would be rated under a different diagnostic code (DC 6080). The RO stated that this grant is considered a full grant of benefits sought on appeal. However, given the additional diagnoses related to bilateral eye disability, the Board retains jurisdiction over the bilateral eye disability claim and finds that another examination is required to clarify all the diagnosed disabilities that fall within the appeal period, whether they are separate and distinct disabilities, and for an examiner to provide an opinion as to the etiology of those disabilities. The matter is REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file any outstanding VA treatment records documenting treatment for a bilateral eye disability. The Veteran should also be afforded the opportunity to identify and/or submit any outstanding private treatment records. 2. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his bilateral eye disability. Based on examination of the Veteran and review of the record, the examiner is asked to provide opinions that respond to the following: The examiner must identify each bilateral eye disability found at any time during the appeal period (from December 2012). If any previously diagnosed bilateral eye disability, to include visual field defect and visual disturbance, is not found on examination, the examiner should address the prior diagnoses of record and indicate whether they may have resolved or been misdiagnosed. The examiner is requested to provide an opinion as to whether the Veteran’s diagnosed bilateral eye disability is a symptom of his service-connected convergence insufficiency/oculomotor dysfunction or whether it is a distinct disability. If it is determined that the diagnosed bilateral eye disability is a distinct disability, the examiner should determine if it is at least as likely as not (50 percent or greater probability) the bilateral eye disability had its onset in service or is otherwise related to active service. If it is determined that the diagnosed bilateral eye disability is a distinct disability, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed bilateral eye disability is caused or aggravated by the Veteran’s service-connected disabilities, to include his service-connected convergence insufficiency/oculomotor dysfunction and service-connected TBI. The examiner is asked to provide a complete a rationale for all opinions offered. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel