Citation Nr: 1807016 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 12-19 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a bilateral eye disability, to include as a result of mustard gas exposure or as secondary to a service connected disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel INTRODUCTION The Veteran had active military service from January 1983 to January 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Jackson, Mississippi Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2016, the Veteran appeared and provided testimony at a travel board hearing in Jackson, Mississippi. A transcript of the hearing is of record. The Veterans Law Judge (VLJ) who held the April 2016 Travel Board hearing is no longer employed at the Board. In October 2016, the Veteran was given an opportunity to attend another hearing before a different VLJ, but he chose to not do so. Of note, the Veteran revoked his representation and elected to proceed with his appeal on a pro se basis in a written statement submitted to VA in September 2016. This case was previously before the Board in December 2016. At that time, the Board reopened the Veteran's claim for entitlement to service connection for back pathology and remanded the Veteran's remaining claims for further development. Subsequent to the Board's December 2016 remand, the issues of entitlement to service connection for a low back disability, entitlement to service connection for a bilateral leg disability, and entitlement to service connection for a gastrointestinal disability were granted by the RO. FINDING OF FACT The Veteran does not have a bilateral eye disability that is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for a bilateral eye disability, to include as related to mustard gas exposure and to include as secondary to a service connected disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.316 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, required notice was provided, and the Veteran has not alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 556 U.S. 396 (2009). Thus, adjudication of his claim at this time is warranted. Under 38 U.S.C. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining that evidence which is necessary to substantiate his claim. All service treatment records, VA treatment records, Social Security Administration (SSA) records, and private medical treatment records identified by the Veteran have been obtained. Furthermore, the Veteran testified at a Board hearing and a transcript of the hearing is of record. The Board notes that VA is only required to request evidence of full-body exposure to mustard gas if the veteran alleges exposure and (a) claims service connection for a disability listed in 38 C.F.R. § 3.316(a) or (b) submits medical or scientific evidence showing a causal relationship between a disease not listed in 38 C.F.R. § 3.316(a) and exposure. See M21-1MR, IV.ii.1.F.22.b. Although the Veteran is claiming he has an eye disability as a result of exposure to mustard gas in service, there is no evidence he has been diagnosed with a disability listed in 38 C.F.R. § 3.316. Further, the Veteran has not submitted medical or scientific evidence showing a causal relationship between an eye disability for which he has been diagnosed and exposure. Additionally, a negative response was received from the Chemical Biological Warfare Exposure System in November 2014, indicating there is no record of the Veteran having exposure. For the above reasons, the Board finds that the VA has no additional duty to assist regarding the Veteran's mustard gas exposure claim. The Veteran was also provided with a VA examination in June 2017 and the Veteran has not objected to its adequacy. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection The Veteran is seeking service connection for a bilateral eye disability. He asserts that he developed an eye disability after being exposed to mustard gas in the gas chamber in service. Alternatively, in statements made throughout the appeal period, the Veteran has alleged his eye disability is secondary to a service connected back disability or a service connected leg disability or secondary to brain surgery which he contends was caused by his service connected back and leg disabilities. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service connected disability; and (3) medical nexus evidence establishing a connection between the service connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Additionally, special provisions are in effect for service connection claims based on exposure to mustard gas or lewisite. Full body exposure to nitrogen or sulfur mustard during active military service together with the subsequent development of chronic conjunctivitis, keratitis, corneal opacities, scar formation, or the following cancers: nasopharyngeal; laryngeal; lung (except mesothelioma), or squamous cell carcinoma of the skin is sufficient to establish service connection for that condition. 38 C.F.R. § 3.316 (a)(1) (2016). Full-body exposure to nitrogen, sulfur mustard, or Lewisite during active military service, together with the subsequent development of chronic form of laryngitis, bronchitis, emphysema, asthma, or chronic obstructive pulmonary disease is sufficient to establish service connection for that condition. 38 C.F.R. § 3.316 (a)(2). Additionally, full-body exposure to nitrogen mustard during active military service together with the subsequent development of acute nonlymphocytic leukemia is sufficient to establish service connection for that condition. 38 C.F.R. § 3.316 (a)(3). A Veteran must provide evidence of in-service exposure and a diagnosis of current disability, but is relieved of the burden of providing medical evidence of a nexus between the current disability and his in-service exposure. Rather, that nexus is presumed if the other conditions are met, subject to the regulatory exceptions in 38 C.F.R. § 3.316 (b). The Veteran testified before the Board in April 2016 that he did not have eye issues prior to his active service. He reported an incident in service where he was in the gas chamber and removed his mask, as they were supposed to do for training, and the chemicals went into his face and eyes. The Veteran testified that he has had "scratchy eyes" since that incident. He reported that he had not been given a diagnosis for his eyes, but was given prescription glasses after having brain surgery. He also alleged that his eye issues were alternatively related to his brain surgery which resulted from a fall he incurred due to his back and leg pulling out on him. The Veteran was afforded a VA examination in June 2017 for his bilateral eye disability. The examiner diagnosed the Veteran with bilateral functional visual field loss. Visual field testing was performed and the examiner found the Veteran had contraction of a visual field, but no loss of a visual field, scotoma, or legal blindness. The examiner also found that the Veteran was slightly nearsighted and his progressive glasses improved his vision to 20/20 at distance and 20/40 near, and stated that he might be able to do better with a lined bifocal. No other eye conditions were diagnosed and the examiner noted that the Veteran did not have any other eye conditions, physical findings, complications, signs, and/or symptoms related to his bilateral eyes. The June 2017 VA examiner further noted that the Veteran's visual field test showed a small star shaped tubular pattern, but ophthalmoscopy showed a very normal optic nerve, posterior pole, and peripheral fundus. There was no pallor or deep cupping or thin rim that would indicate abnormality. The examiner remarked that the star shaped tubular visual field did not match the appearance of the optic nerve. She further explained that functional visual loss is a decrease in visual acuity and/or visual field not caused by any organic lesion, and occurs when a patient is simulating poor vision quality when in fact his vision is normal. The star shaped pattern on visual field tests (as in the Veteran's test) is a classic finding of functional visual loss. There are two categories of functional visual loss: (1) malingering and (2) hysteria. The examiner could not determine which category the Veteran represented. The Board has also reviewed the Veteran's VA treatment records covering the appeal period. The records indicate the Veteran sought treatment for vision issues and occasionally complained of photophobia, worsening eyesight, and watering from the eyes, but was not diagnosed with any other eye disabilities. Regarding the Veteran's secondary service connection claims, the Veteran is service connected for a back disability and bilateral leg disabilities. However, he is not currently service connected for his brain surgery, despite his contention that it was a result of his service connected back or leg disabilities. As such, lacking service connection for brain surgery, service connection for the Veteran's bilateral eye disability as secondary to brain surgery is not warranted. Further, the June 2017 VA examiner addressed the Veteran's secondary service connection claims and opined that his bilateral eye condition is less likely than not proximately due to or the result of the Veteran's service connected conditions. She explained further that his nearsightedness and functional visual field defect have nothing to do with his bilateral leg or low back disabilities and that there is no established link between the condition of his eyes and his leg or low back. The Veteran has not presented any medical evidence to the contrary. Therefore, service connection is also not warranted as secondary to service connected back or leg disabilities. The record contains no evidence that the Veteran has been diagnosed with any of the enumerated eye conditions contained in 38 C.F.R. § 3.316(a). Regardless of the Veteran's contention that his bilateral eye disability was caused by exposure to mustard gas in service, without a diagnosis of one of the 38 C.F.R. § 3.316(a) eye disorders, his claim cannot gain the benefit of a presumptive service connection for mustard gas exposure. Lacking grounds for a secondary or presumptive service connection, service connection for the Veteran's bilateral eye disability can only be warranted if the elements of a direct service connection are met. The Board finds that they are not. The medical evidence of record goes against a finding that the Veteran experienced an in-service injury to his eyes. The Veteran's service treatment records are silent as to any complaints relating to or treatment received for his eyes. The Veteran elected not to undergo a separation medical examination and the first reported medical treatment regarding his eyes occurred in 2011, approximately 25 years after he had separated from service. As such, the medical evidence does not support a finding that the Veteran was injured in service. While the Veteran contends that he was exposed to mustard gas in service and that his current bilateral eye disability stems from that exposure, a negative response was received from the Chemical Biological Warfare Exposure System in November 2014, indicating there is no record of the Veteran having been exposed to mustard gas in service. Ultimately, the Board finds that a determination as to whether the Veteran sustained an in-service exposure is actually not necessary, because, as explained below, there is no nexus linking a bilateral eye disability to service. Lacking a medical nexus, a direct service connection cannot be established. The June 2017 VA examiner rendered an opinion that the Veteran's bilateral eye disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She explained further that "exposure to the gas chamber" did not cause any permanent damage to the Veteran's eyes. She reported that distance and near visual acuity was good with his bifocal prescription eyewear and his anterior and posterior ocular structures were normal with no evidence of scarring. She also noted that the Veteran's statements of complaints seemed to be exaggerated, as in his statements that he was losing his sight or that his vision was getting worse every year, being that his vision has only changed slightly since 2012. None of the Veteran's other medical records provide an opinion linking his bilateral eye disability to his service. The Board notes that lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of a bilateral eye disability, the issue of causation of such a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's eye disability is related to his service, the Board has not uncovered any credible medical evidence which supports such a connection and the Veteran lacks the medical expertise to competently determine the etiology of his bilateral eye disability. The examiner provided a detailed explanation as to why the Veteran did not have a bilateral eye disability that was a result of his military service. This opinion has not been challenged or undermined by any other medical opinions. As such, it is given great weight. The Board concludes that the weight of the evidence is against a direct, secondary, or presumptive service connection for a bilateral eye disability, and service connection is therefore denied. ORDER Service connection for a bilateral eye disability, to include as a result of mustard gas exposure or as secondary to a service connected disability is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs