Citation Nr: 1815282 Decision Date: 03/09/18 Archive Date: 03/19/18 DOCKET NO. 13-24 346 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a bilateral eye disability. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1960 to March 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In that decision, the RO denied entitlement to service connection for a bilateral eye disability. The Board notes that the bilateral eye disability was initially adjudicated as diabetic retinopathy; however, the Board has recharacterized the issue to more accurately reflect the nature and scope of the claimed disability. In August 2017, the Veteran was scheduled for a Board hearing. In a July 2017 statement, the Veteran notified VA that he would be unable to attend the Board hearing because he was recovering from medical condition. In a separate July 2017 statement, the Veteran indicated that he was unsure whether he could attend a Board hearing. He explained that his physician would direct him whether he could attend a hearing. Given that the Veteran has not requested a rescheduling of his Board hearing at that this time, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2017). In September 2017, the Board, in pertinent part, remanded the Veteran's claim for further evidentiary development. As will be explained below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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) (2012). FINDING OF FACT A bilateral eye disability did not have its onset in service and is not otherwise related to active duty. CONCLUSION OF LAW The criteria for service connection for a bilateral eye disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist. 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."); Dickens v. McDonald, 814 F.3d 1359,1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument)." II. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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, 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In addition, 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). 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. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran asserts service connection for a bilateral eye disability. His main contention is that his bilateral eye disability is due to his diabetes mellitus. The Veteran's service treatment records (STRs) reveal that he sought treatment for eye problems. See STRS dated December 1963 and January 1964. Specifically, in a January 1964 STR, the Veteran was referred to an ophthalmology clinic for complaints of blurry vision for two months. The January 1964 examining physician assessed conjunctivitis. In the Veteran's February 1964 separation examination report, he reported eye trouble and the physician noted bilateral conjunctivitis. In May 2013, the Veteran was afforded a VA eye examination. The examiner diagnosed retinopathy and cataracts. However, the examiner stated that upon examination of the eyes, the visual field defects were unreliable. The examiner opined that the Veteran's eye disabilities were not caused by his military service. No rationale was provided. In October 2017, the Veteran was afforded a VA examination. The examiner diagnosed hyper mature cataract, age related maculopathy, and ptosis. The examiner interviewed the Veteran and reviewed the claims file and opined that his bilateral eye disabilities are less likely than not related to his military service. The examiner reasoned that although the Veteran's STRs show that he was treated for conjunctivitis during service, he currently does not have a diagnosis of conjunctivitis. In support of the examiner's statement that the Veteran does not have a current diagnosis of conjunctivitis, the examiner noted the Veteran's post service medical records that indicated that the Veteran did not have current diagnosis conjunctivitis. The examiner noted that the Veteran was not diagnosed with an eye disability until February 2013. Furthermore, the examiner indicated that the Veteran's current bilateral eye disabilities have no relationship to conjunctivitis. But rather, the examiner explained that, eye disabilities such as maculopathy and cataracts develop in individuals over the age of 55 and most cataracts are due to age-related changes in the lens of the eye that cause it to become cloudy or opaque. The examiner concluded that the ptosis's etiology is unknown. For the following reasons, entitlement to service for a bilateral eye disability is not warranted. First as to service connection on a direct basis, the evidence of record shows that during service the Veteran had complaints of eye problems during service, such as conjunctivitis. Moreover, during the appeal period, the Veteran has been diagnosed with retinopathy, cataract, age related maculopathy. He has thus met the current disability and in-service disease or injury requirement. On the question of a relationship between the two, there are two medical opinions that address this matter. As to the May 2013 VA opinion that found that the Veteran's bilateral eye disability was not related to service, the Board finds that the opinion is of no probative value, as the examiner did not provide a rationale for his negative nexus opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); see also Stefl v. Nicholson 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). With respect to the October 2017 opinion that the Veteran's bilateral eye disabilities are not related service, the Board finds that the opinion is highly probative, as the examiner explained the reasons for his conclusions based an accurate characterization of the evidence. See Nieves-Rodriguez, 22 Vet. App. at 304 (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Furthermore, the examiner explained why there is no relationship between the Veteran's current bilateral eye disabilities and his in-service conjunctivitis. Moreover, although the examiner indicated that the precise etiology of the Veteran's ptosis was not determined, he concluded that it was unrelated to service. Reading the opinion as a whole and in the context of the evidence of record, the examiner's conclusion that the Veteran's ptosis was not related to service was based on his extensive discussion of the facts and nature of the various eye disorders that he diagnosed. The opinion is therefore of at least some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion, "did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). There is no contrary medical opinion in the evidence of the record. To the extent that the Veteran claims that his current bilateral eye disabilities are related to service, he is not competent to offer an opinion on this complex medical matter, which involves an internal medical process that extends beyond an immediately observable cause-and-effect relationship and is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Moreover, the above evidence reflects that a chronic eye disease was not noted in service with continuity of symptomatology warranting service connection under 38 C.F.R. § 3.303(b). As to service connection on a secondary basis, the Veteran claims that his bilateral eye disability is due to his diabetes mellitus. However, the Veteran is not service-connected for diabetes mellitus; therefore, entitlement t to service connection on a secondary basis is not warranted as a matter of law. 38 C.F.R. § 3.310 (2017) (service connection warranted for disability caused or aggravated by an already service connected disease or injury). For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for bilateral eye disability, the benefit of the doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a bilateral eye disability is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs