Citation Nr: 1806364 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-17 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a right eye disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for a right ankle disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from August 1965 to August 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2017, the Veteran testified at a Board hearing in San Antonio, Texas. At that time, he asked that the record be held open for 30 days following the hearing to allow additional time to submit evidence. Later that month, he submitted additional evidence with a waiver of RO review. In a July 2011 statement, the Veteran raised the issue of entitlement to service connection for a right hip disorder. The issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for a left knee disorder, right knee disorder, and right ankle disorder are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT A right eye disorder clearly and unmistakably existed prior to active service and clearly and unmistakably was not aggravated by active service. CONCLUSION OF LAW The criteria for service connection for a right eye disorder have not been met. 38 U.S.C. §§ 1110, 1111 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In this case, VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in July 2009. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Although an examination or opinion was not obtained in connection with the claim for service connection for a right eye disorder, the Board finds that VA was not under an obligation to provide one, as such is not necessary to make a decision on the claim, for the reasons discussed below. In determining whether the duty to assist requires that a VA medical examination be provided or a medical opinion obtained, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) (West 2012); 38 C.F.R. § 3.159(c)(4) (2017). In this case, the record is absent any evidence of a right eye injury in service. There is also no evidence of a current disability subject to service connection. Aside from the Veteran's bare references to having right eye problems since service, there is no evidence showing a nexus between any right eye disorder and service. Thus, there is no reasonable possibility that a medical opinion would aid in substantiating the claim for service connection since it could not provide evidence of a past event. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The presumption of soundness provides that a Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (West 2012); 38 C.F.R. § 3.304(b) (2017). To rebut the presumption of soundness, VA must show by clear and unmistakable evidence that (1) the disease or injury existed prior to service and (2) the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 2003). The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (West 2012); 38 C.F.R. § 3.306(b) (2017). Congenital or developmental defects are not diseases or injuries within the meaning of VA laws, and service connection for such is not warranted. 38 C.F.R. § 3.303(c) (2017). However, service connection for a congenital or developmental defect is permitted if the disorder was subjected to a superimposed disease or injury which created additional disability. VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990). In this case, the Veteran asserts that he sustained a laceration of the right cornea in service from a paint chip and he has a residual scar on the right cornea that has led to blurry vision in that eye. The Veteran's enlistment examination report reflects 20/40 vision in the right eye and 20/20 vision in the left eye and a diagnosis of myopia. Thus, the Board finds that a right eye disorder clearly and unmistakably existed prior to active service. The service treatment records do not show any complaints of right eye problems or indicate any injury to the eye. The Veteran's August 1969 separation examination report reflects 20/20 vision in both eyes. A January 2017 medical record from a private optometrist shows that examination revealed no abnormal findings of the right eye. While a corneal scar was found on examination, the scar was on the left eye. Thus, the Board finds that the Veteran's preexisting right eye disorder clearly and unmistakably was not aggravated by active service. While the January 2017 private medical record shows diagnoses of hypermetropia, astigmatism, and presbyopia, the Board observes that those are all congenital or developmental defects not subject to service connection. There is also no evidence of superimposed disease or injury in service to warrant service connection. In conclusion, the Veteran's right eye disorder clearly and unmistakably existed prior to active service and clearly and unmistakably was not aggravated by active service. Accordingly, service connection for a right eye disorder is not warranted. ORDER Service connection for a right eye disorder is denied. REMAND The Veteran asserts that he has disorders of the right ankle and left and right knees from an in-service injury while aboard a ship. He asserts that he twisted the ankle while on a ladder and fell to the metal floor, landing on his knees. A November 1966 service treatment record shows that the Veteran twisted the right ankle on a ladder the prior day, with examination findings of tenderness around the medial malleolus and pain on inversion and eversion but no swelling. X-rays were negative for a fracture. Heat was recommended. Post service, August 2009 private medical records show complaints of pain in the right ankle and right knee for the past one and one-half years due to a fall from a ladder several years earlier, and a history of left knee surgery in the 1980s. The diagnosis was of right ankle posterior tibialis tendon dysfunction, possible tearing or subluxation. X-rays of the knees revealed no acute fractures or dislocations and well-maintained joint spaces with no significant marginal osteophytosis. An MRI of the right knee revealed a complex medial meniscus tear and an arteriovenous malformation. The Veteran underwent a VA examination in December 2009. He complained of bilateral knee and right ankle pain and reported a history of left knee surgery for the removal of a bone spur in the 1980s. X-rays of the knees were normal except for minimal degenerative changes within the patellofemoral, medial, and lateral joint compartments. X-rays of the right ankle were normal. The examiner provided diagnoses of bilateral patellofemoral osteoarthritis and a normal right ankle. The examiner noted that the Veteran's current complaints regarding the knees were due to arteriovenous malformation which is not a knee issue. The examiner noted that the post service records are silent until 2009. The examiner then stated that with no treatment for the conditions after service a link cannot be made to the one-time treatment for a right ankle issue in 1966. At the October 2017 hearing, the Veteran indicated that he has had intermittent pain in both knees and the right ankle since the in-service injury, he underwent left knee surgery in 1980, his ankle was prone to twisting injuries, and his ankle was swollen and discolored. He also indicated that while the x-rays of the ankle taken at the VA examination were normal, x-rays would not show soft tissue injuries. While the Board appreciates the examiner's opinions, the Board finds that another examination is needed. The examiner's opinions were based in large part on the lack of documentation of treatment after the in-service injury. However, the Board notes that continuity of symptoms, not treatment, is required to support a claim for service connection. The examiner also did not address the Veteran's history of left knee surgery in 1980, around ten years after discharge from service. Lastly, while the examiner indicated that the Veteran did not have a right ankle disorder, that was based in part on negative x-rays, which the Veteran asserts would not have captured any abnormalities in his ligaments. Thus, the AOJ should afford the Veteran a new examination that addresses the above. Prior to scheduling the examination, the AOJ should ask the Veteran to provide an authorization form for each healthcare provider who has treated him for his knee and ankle disorders since the issuance of the January 2016 supplemental statement of the case. The AOJ should attempt to obtain any adequately identified records. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to provide an authorization form for each healthcare provider who has treated him for his knee and ankle disorders since the issuance of the January 2016 supplemental statement of the case. Obtain all adequately identified records. 2. Schedule the Veteran for a VA examination to determine the etiology of any bilateral knee and right ankle disorders. The examiner should review the claims file and note that review in the report. The examiner should ensure that all indicated tests and studies are conducted, to include an MRI of the ankle if deemed warranted. The examiner should state whether it is at least as likely as not (50 percent or greater probability) that any disorder of the left knee, right knee, or right ankle had its onset during active service or within one year thereafter, or is otherwise causally related to such service. The examiner should discuss the Veteran's lay statements regarding the history and chronicity of symptomatology, to include having intermittent problems with both knees and right ankle since active service, including recurrent ankle sprains, and undergoing left knee surgery for a bone spur in 1980. The examiner should provide a complete rationale for all conclusions. 3. Then, readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs