Citation Nr: 1807175 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 13-34 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for cervical strain, including as secondary to service-connected post traumatic arthritis of the right knee. 2. Entitlement to service connection for chronic low back strain, including as secondary to service-connected post traumatic arthritis of the right knee. 3. Entitlement to service connection for a bilateral eye disability, to include declining vision, pingueculas with dry eye, retinopathy, and refractive error. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney-at-Law ATTORNEY FOR THE BOARD R. Husain, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from November 1973 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board notes that several other issues are pending on appeal, as referenced in a July 2015 notice of disagreement submitted by the Veteran. As the record indicates that the RO is developing these claims, the Board will not remand these issues to have the RO issue a Statement of the Case. The issue of service connection for chronic low back strain is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Cervical strain was not incurred in service, and is not caused or aggravated by service-connected post traumatic arthritis of the right knee. 2. A bilateral eye disability, to include declining vision, pingueculas with dry eye, retinopathy, and refractive error, was not incurred during service and is otherwise not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical strain, to include as secondary to service-connected post traumatic arthritis of the right knee, are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012). 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. The criteria for service connection a bilateral eye disability, to include declining vision, pingueculas with dry eye, retinopathy, and refractive error, are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303, 4.9 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."). The Board has thoroughly reviewed all the evidence in the Veteran's VA file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, it is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. As to the duty to assist, the Veteran contends that his August 2010 examination was inadequate for failure to discuss whether the Veteran's cervical strain and chronic low back strain disabilities were caused by the Veteran's service-connected right knee disability. As discussed below, medical evidence does not establish a relationship between the Veteran's right knee disability, a related limp, and cervical strain. As for the relationship between the Veteran's right knee disability and chronic low back strain, that issue is being remanded for further consideration, as discussed in the REMAND portion of this decision. As the Veteran's contentions have been addressed, the Board finds that VA has fulfilled its duty to assist. II. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Cervical strain The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for cervical strain. The reasons follow. The Veteran has been diagnosed with cervical strain, and thus there is evidence of a current disability. Furthermore, the Board concedes that an in-service injury to the neck is documented. As to in-service disease or injury, a June 1975 service treatment record (STR) shows that the Veteran was seen with a complaint that he had a sore neck after being hit the day before while playing basketball. The examiner noted that there was a slight decrease in the range of motion of the neck from left to right, lateral movement was fair, palpation revealed a slight muscular tension on the right lateral side of the neck. The Veteran was given a norgesic tab to take every six hours as needed, and a methyl salicylate for an analgesic rub down. No diagnosis was entered. Thus, there is evidence of an in-service injury to the Veteran's neck. However, the Veteran's claim fails on the nexus to service. While still in service, the Veteran was seen again for medical complaints in October 1975, January 1976, April 1976, June 1976, December 1976, March 1977, April 1977, September 1977, and November 1977, where he complained of symptoms related to his rib cage, left hand, chest, left eye, painful urination, left elbow, rash on feet, swelling under his left armpit, abrasion on the left forearm, sore throat, and other medical issues. However, he was not seen for symptoms related to his neck after the June 1975 injury. The Veteran clearly sought treatment regularly for medical symptoms he experienced, which did not include symptoms related to his neck after the 1975 injury. The Veteran's failure to mention neck problems for more than two years after the original neck injury tends to establish that the Veteran did not develop a chronic neck or cervical spine disability as a result of the 1975 injury. Additionally, the service treatment records show that the Veteran was found to have a normal clinical evaluation of his neck and spine at his separation examination in October 1977 (more than two years after the injury). On the separation examination, certified he was "informed of" and "unders[oo]d" the provisions of BUMED INST. 6120.6D. He thus indicated he was informed he had been found to be fit, and if he felt he had any serious medical problems, he should so inform the examining physician. See Real v. U.S., 906 F.2d 1557, 1559 (Fed. Cir. 1990) (describing the meaning of BUMED INST. 6120). The Board finds as fact that had the Veteran continued to experience neck pain after the June 1975 injury, it would have been documented in the separation examination. The examiner noted that the Veteran had identifying body marks, scars and tattoos in this examination. The fact that the Veteran's separation examination found a normal clinical evaluation of the neck and spine while noting other abnormal findings tends to weigh against a chronic neck problem during the Veteran's service. Of record are multiple private medical records that cover a period beginning in September 2007. There are approximately 16 medical entries between September 2007 and December 2009, and none of these medical records document neck pain, but document other medical symptoms. For example, in September and October 2007, the Veteran is seen for a renal mass. In October 2007 and November 2007, the Veteran was seen with a two-month history of low back pain. In April 2008, May 2008, and June 2008, the Veteran was seen for right knee pain. In 2009, the Veteran was being treated for gastrointestinal complaints. When reporting his past medical history in March 2009, April 2009, May 2009, June 2009, July 2009, September 2009, November 2009, and December 2009, there was no documentation of neck or cervical spine pain. The examiner consistently examined the Veteran's neck during those 2009 treatment dates, and described it as "supple." These records, which cover over a two-year period and prior to the date the Veteran submitted his claim, for service connection for a neck/cervical spine disability, in May 2010, tends to show that the Veteran was not experiencing chronic neck or cervical spine pain in the years following service discharge. The Veteran was treated for other musculoskeletal pain, such as low back and right knee pain, and the Board finds it likely that had the Veteran been experiencing neck or cervical spine pain during this time, it would have been documented in these records. The VA treatment records show that when the Veteran was seen in August 2010 to establish care. The examiner wrote a past medical history of, "Low back pain," "Right knee pain - since 1974," and "Neck pain." This treatment record shows that the Veteran reported that he had had knee pain since 1974, but did not appear to attribute the low back pain or the neck pain to service. When entering an assessment, the examiner wrote that the primary diagnosis was knee pain and the secondary diagnosis was neck pain. Thus, based on the documents in the record, the Veteran began complaining of neck pain in 2010, which is more than 30 years following service discharge, and further tends to establish that the post service cervical strain did not have its onset in service. When the Veteran was examined in August 2010 in connection with his spine, the examiner stated that regarding the Veterans cervical strain, he could not offer a nexus opinion without resorting to mere speculation. The examiner reasoned that while cervical strain injuries, including a single cervical injury, can lead to degenerative changes throughout the cervical spine, there were no consistent or persistent complaints of neck pain in the Veteran's STRs or visits to private medical practitioners in the past few decades. While the examiner used the word "speculation" in his opinion, the Board does not find that such medical opinion is speculative. The examiner was stating that he could not provide a nexus to service because of the lack of any continuity of treatment or symptoms following the one-time injury in service. This is a negative medical opinion. The Veteran submitted a private medical opinion, dated September 2016, where the examiner opined that the Veteran's cervical strain was related to the Veteran's service-connected knee disability. The examiner explained that limping, as caused by the Veteran's knee disability, can cause changes in the lumbar spine and low back area, and provided a medical article to support his claim. The Board notes, however, that the both the examiner and the related article only provide a rationale to link the Veteran's knee disability and his low back strain, but that they do not explain or support a relationship, or evidence of aggravation, between cervical strain and a limp. Therefore, the Board finds that the private medical opinion regarding the Veteran's cervical strain being related to the service-connected right knee disability is inadequate because it is merely a conclusory opinion that is not adequately supported. The private examiner also opined that the neck problems suffered by the Veteran are a direct result of neck problems during service because he had suffered with neck problems since service. The examiner stated that the Veteran's neck problems began during service, they never went away, and increased in severity over time. The Board finds such opinion is not supported by the record for all the reasons laid out above. The Board finds that the Veteran did not develop a chronic neck problem following the on-time complaint he had in 1975. No chronic problem was documented in the STRs or the post-service medical records. Again, from 2007 to 2009, the Veteran was seen multiple times for various medical complaints, including gastrointestinal symptoms, renal mass, right knee pain, and low back pain, and was not seen or treated for neck pain, and his neck was physically examined during this time frame and found to be "supple." The Board finds that the documented evidence in the record refutes the allegation of chronic neck pain since service. Therefore, with consideration to the Veteran's service records and post-service treatment records the Board finds that the private examiner's opinion is based upon an inaccurate factual premise. For these reasons, this medical opinion is accorded no probative value. The preponderance of the evidence is against a finding that cervical strain had its onset in service or is related to the service-connected right knee disability. Thus, all of the elements necessary for entitlement to service connection have not been met and the claim must be denied. In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for cervical strain. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. Gilbert, 1 Vet. App. 49, 53; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). B. Bilateral eye disability The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for a bilateral eye disability, to include declining vision, pingueculas with dry eye, retinopathy, and refractive error. The reasons follow. The Veteran has been diagnosed with pingueculas with dry eye, hypertension with mild retinopathy, and refractive error, and thus there is evidence of a current disability. The Board notes that besides refractive error, the Veteran has not otherwise been diagnosed with "declining vision." The Board notes that the Veteran was treated for issues with his eyes during service, and thus an in-service injury has been noted. However, the Veteran's claim fails on the nexus to service. As to the Veteran's in-service injury, while the Veteran does complain of symptoms related to his eye in August 1974 and April 1976, service records indicate that these were temporary medical issues that resolved with treatment. For example, in August 1974, the Veteran complained of burning in his left eye, and was treated with Neosporin. In April 1976, the Veteran complained of pain in his left eye, was diagnosis with an eye infection, and was prescribed with medicine to address the infection. The preponderance of the evidence does not support complaints relating to the Veteran's eyes in 1975 or after the April 1976 incident. Furthermore, during the Veteran's separation examination in October 1977, he was found to have a normal clinical evaluation of the eyes, normal ocular motility, and 20/20 vision. The Veteran's clinical examination that found normal findings in the eyes and vision during service is evidence against a finding that he had declining vision in both eyes during service. With regard to a nexus to service, the Veteran was seen regularly at the Gainesville, FL VAMC in connection with his eyes. The preponderance of the evidence shows that the Veteran's eye issues were not complained of, or diagnosed, until 2010, which is approximately 33 years following service discharge, and tends to establish that declining vision did not have its onset in service. Furthermore, as to the Veteran's diagnosis of hypertension with retinopathy, the Veteran's hypertension is not service-connected, and therefore the resulting retinopathy cannot be attributed to service. Regarding the Veteran's refractive error, defects of form or structure of the eye that are of congenital or developmental origin may not be considered as disabilities or service connected on the basis of incurrence or aggravation beyond natural progress during service. Refractive errors are due to anomalies in the shape and conformation of the eye structures and generally of congenital or developmental origin for example - astigmatism, myopia, hyperopia, and presbyopia. Therefore, the effect of uncomplicated refractive errors must be excluded in considering impairment of vision from the standpoint of service connection and evaluation. Thus, to the extent that the Veteran has been diagnosed with a refractive error, service connection for this disability cannot be granted. 38 C.F.R. §§ 3.303(c), 4.9. With respect to the Veteran's pingueculas with dry eye, the preponderance of the evidence does not support a relationship between the Veteran's service and this diagnosis, and no medical professional has opined that the Veteran's pingueculas with dry eye was incurred during service. To the extent that the Veteran had implied that his bilateral eye disability, to include declining vision, pingueculas with dry eye, retinopathy, and refractive error had its onset in service, his service treatment records refute such a finding. To the extent that the Veteran has implied that declining vision in both eyes is otherwise related to service, his allegation is outweighed by preponderance of the evidence. In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for a bilateral eye disability, to include declining vision, pingueculas with dry eye, retinopathy, and refractive error. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. Gilbert, 1 Vet. App. 49, 53; Ortiz, 274 F.3d 1361. ORDER Entitlement to service connection for cervical strain, including as secondary to service-connected post traumatic arthritis of the right knee is denied. Entitlement to service connection for bilateral eye disability, to include declining vision, pingueculas with dry eye, retinopathy, and refractive error, is denied. REMAND While further delay is regrettable, additional development is warranted before the Veteran's claims may be decided. The Veteran received a private medical opinion on September 28, 2016, where the examiner opined that the Veteran's chronic low back sprain is related to limping caused by the Veteran's service connected service-connected post traumatic arthritis of the right knee. In support of this opinion, the examiner supplied a medical article describing the relationship between a limp and low back problems. However, the Board finds the opinion to be inadequate for the reasons described below. The examiner's opinion rests on the notion that the Veteran's limp is so severe as to cause deformities in the spine, however the examiner does not discuss the severity of the Veteran's limp. The examiner notes the Veteran used a cane in 2010, and VA medical records show that the Veteran used the cane through 2013, and requested a new cane in 2014. As mentioned in the medical article supplied by the examiner, information relating to the type, magnitude, and duration of the limp must be established to properly evaluate the connection between a limp and a back sprain, and the examiner does not supply this information. As the examiner fails to discuss the limp in sufficient detail, and it is the underlying basis of his rationale, his opinion is inadequate. The examiner also opines that the Veteran's back problem was aggravated by the altered gait from the Veteran's service connected knee disability; however he does not establish the baseline degree of severity of the Veteran's chronic low back strain before aggravation. VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b) (2017). As the examiner has failed to establish the necessary information sufficient to justify that the Veteran's disability was aggravated by his service-connected right knee disability, his opinion on aggravation is also inadequate. In this case, the Veteran has a current diagnosis of chronic low back strain, is service-connected for post traumatic arthritis of the right knee, and has claimed that his chronic low back strain is secondary to his service connected right knee disability. As there is otherwise insufficient medical evidence to decide the claim, the Board must remand the issue so that a medical opinion addressing the etiology of the Veteran's chronic low back strain, to include whether it is due to his service-connected post traumatic arthritis of the right knee, can be obtained. Accordingly, the case is REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding evidence pertinent to the Veteran's claim. 2. Schedule the Veteran for an examination with an appropriate examiner to ascertain the etiology of the Veteran's chronic low back strain, to include whether it is due to his service-connected post traumatic arthritis of the right knee or related limp. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies are left to the discretion of the examiner. An explanation for all opinions expressed must be provided. A. The examiner is asked to answer the following questions: Does the Veteran currently walk with a limp? If so, what is the type, magnitude, and duration of the limp? Does the Veteran utilize a cane or other ambulation device? B. The examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected right knee disability, or related limp, caused or aggravated the Veteran's chronic low back strain. i. If the examiner opines that it is at least as likely as not that the Veteran's service-connected right knee disability, or related limp, aggravated the Veteran's chronic low back strain, the examiner must establish the Veteran's baseline level of the severity of chronic low back disability before the right knee disability aggravated the lower back. 3. Then, the AOJ should readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided a supplemental statement of the case and the requisite opportunity to respond before the case is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter 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 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). ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs