Citation Nr: 1806755 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-27 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a vision disability. 2. Entitlement to service connection for a right shoulder disability, to include as residuals of a motor vehicle accident (MVA) or as secondary to a left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The Veteran had active military service from September 1982 to September 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified before the Board at an October 2015 hearing conducted via videoconference. A transcript of the hearing is of record. The Board has twice noted that the issue of entitlement to a temporary total disability rating has been raised by the record in an October 2015 statement and, additionally, the Veteran claimed service connection for a left shoulder disability and increased rating for the left knee. See May 2016 and September 2017 Board remands. Because these issues have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are again REFERRED to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issue of entitlement to service connection for a right shoulder disability is addressed in the REMAND portion of the decision below and is again REMANDED to the Agency of Original Jurisdiction AOJ. FINDING OF FACT A chronic vision disability was not manifest in active service and any current vision disability is not otherwise etiologically related to such service nor is it caused or aggravated by service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for a vision disability have not been met. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded a VA examination in conjunction with his claim. See 38 U.S.C. § 5103A(d); see also 38 C.F.R. § 3.159(c)(4) (2017); Wells v. Principi, 327 F.3d 1339, 1341 (Fed. Cir. 2002). This VA examination with addendum opinion is adequate for the purposes of the instant appeal, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provide an adequate basis for the diagnosis and opinions rendered. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As noted above, the instant appeal has been previously remanded in May 2016 and September 2017. There has been substantial compliance with the Board's remand directives, and adjudication of the appeal may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection may be established on a direct basis for 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; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran contends he suffers from a vision disability that is directly related to his period of active service. Alternately, he asserts that his vision disability may have been caused or aggravated by his service-connected hypertension. While the evidence reveals that the Veteran currently suffers from photopsia, meibomian gland dysfunction, and dry eye syndrome, the competent, probative evidence of record does not etiologically link the Veteran's current disabilities to his service or any incident therein. The Veteran states he repeatedly directly watched flashbangs as a member of the artillery, and first noticed flashing lights in his vision during service. However, there is no indication he sought treatment for, or complained of, vision problems in service. A February 1988 Report of Medical Examination, completed approximately one and a half years prior to the Veteran's separation from service notes a clinical evaluation revealed normal general eye, ophthalmoscopic, pupils, and ocular motility evaluations. There was no indication of vision problems of any kind during service. As such, the Board finds that no chronic vision disability was manifest during active service. When a disorder is first diagnosed after service, service connection is warranted for that condition if the competent evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). Alternately, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a), (b) (2017). Establishing service-connection on a secondary basis 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. Id.; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Initially, the Board notes that while the Veteran was diagnosed with a refractive error as early as March 2010, refractive errors of the eyes are considered similar to developmental defects and are not a disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. While the Veteran testified that he has experienced flashes of light in his vision since service, the Board notes the Veteran specifically denied a history of flashes and floaters at his March 2010 VA optometry evaluation. VA treatment records indicate the Veteran has been diagnosed with photopsia, meibomian gland dysfunction, and dry eye syndrome beginning in approximately May 2013, over 23 years following service separation. While not dispositive of the issue, the Board may and will consider in its assessment of a service connection the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). The Veteran was provided a VA examination in June 2016 with an addendum opinion obtained in October 2017. With regards to direct service connection, the VA examiner noted that the Veteran first reported flashes of light in June 2014, off and on for months, which his treating ophthalmologist commented was unclear if he was truly having photopsia based on his description and negative retinal pathology revealed. Further, the examiner noted that service treatment records do not document any in-service injury, event, or illness that would affect the Veteran's ocular health, including an in-service motor vehicle accident. The examiner stated that meibomian gland syndrome would not be caused by a motor vehicle accident unless there was a direct injury to the glands, which is not documented in this case. Finally, with regards to secondary service connected, the VA examiner stated that hypertension is not a known risk factor for photopsia, dry eye syndrome, or meibomian gland dysfunction and, therefore, it is less likely than not that the Veteran's hypertension caused or aggravated his current vision disabilities. In sum, the Board finds that there is no evidence of a chronic vision disability in service. The threshold question therefore is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current disability and his period of active service or to a service-connected disability. The preponderance of the evidence is against this aspect of the Veteran's claim. The Veteran has not provided a competent medical opinion in support of his claim, and a probative VA opinion provides negative etiological opinions addressing both direct and secondary service connection. The Board acknowledges that the Veteran himself has claimed that he suffers from a vision disability as directly related to his active service or as secondary to his service-connected hypertension. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., flashes of light; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, the Veteran's lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection, and the Board affords these statements little probative value. Latham v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for vision disability, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107. ORDER Service connection for a vision disability is denied. REMAND As noted by the May 2016 and September 2017 remands, the Veteran has claimed service connection for a left shoulder disability, and has referred this issue to the AOJ for adjudication in the first instance. Because the Veteran has claimed service connection for a right shoulder disability in part as secondary to his left shoulder disability, these claims are inextricably intertwined. This is especially significant in the instant case, as the Veteran has submitted a September 2017 medical opinion in support of his claim of service connection for a left shoulder disability, and a September 2017 VA examiner opined that it is at least as likely as not that the right shoulder disability has been aggravated by the left shoulder disability. Therefore, while the Board regrets the additional delay, a remand is again required pending adjudication by the AOJ of the Veteran's claim of service connection for a left shoulder disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) Following adjudication in the first instance of the Veteran's claim of service connection for a left shoulder disability, and any other development deemed necessary, readjudicate the claim of service connection for a right shoulder disability based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs