Citation Nr: 1825903 Decision Date: 04/30/18 Archive Date: 05/07/18 DOCKET NO. 13-26 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for low back disability. 2. Entitlement to service connection for left eye disability. REPRESENTATION Appellant (Veteran) represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona dated in February 2011, which denied service connection for low back and left eye disorders. The Veteran appealed the decision to the Board in August 2013. In May 2015, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing convened at the RO. A transcript of the hearing has been included in the claims file and has been reviewed. In January 2016, the Board remanded the issues on appeal for additional development and medical inquiry. The case is again before the Board for appellate review. The Board finds that there has been substantial compliance with its remand directives. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) FINDINGS OF FACT 1. The evidence is in a state of relative equipoise regarding whether low back disability is related to an injury during service. 2. The evidence is in a state of relative equipoise regarding whether left eye disability is related to an injury during service. CONCLUSIONS OF LAW 1. Low back disability was incurred during service. 38 U.S.C. §§ 1110, 1154(b), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. Left eye disability was incurred during service. 38 U.S.C. §§ 1110, 1154(b), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran claims service connection for low back and left eye disabilities. He claims that he injured his back and left eye during combat service with the U.S. Marine Corps while in the Republic of Vietnam between June 1966 and July 1967. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). To establish direct service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). In the case of any veteran who engaged in combat with the enemy in active service during a period of war, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b). See Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) (under 38 U.S.C. § 1154(b), the evidentiary burden is reduced). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The evidence in this matter consists of service treatment records (STRs), service personnel records (SPRs), VA and private treatment records, VA examination reports dated in June 2011, March 2016, and May 2016, and lay assertions from the Veteran, his spouse, his sister, and from a fellow marine. This evidence is in a state of relative equipoise regarding whether low back and left eye disabilities were incurred in service. See Alemany and Gilbert, both supra. As such, for the following reasons, service connection will be granted here. First, the evidence establishes that the Veteran has current low back and left eye disabilities. Most recently, the May 2016 VA report notes the diagnosis of degenerative disc disease of the lumbar spine while the March 2016 VA report notes the diagnosis of traumatic glaucoma in the left eye. Second, the evidence is in a state of relative equipoise regarding whether the Veteran engaged in combat with the enemy. On the one hand, certain evidence indicates that the Veteran did not engage in combat with the enemy. The current record indicates that the Veteran has not received the type of award that would evidence combat service, such as a Purple Heart Medal or the Combat Infantryman Badge. Further, there is no specific information in the Veteran's STRs or SPRs evidencing that he engaged in actual combat during service. On the other hand, certain other evidence supports his contentions that he engaged in combat. The SPRs document that he served as a mortarman in the U.S. Marine Corps in Vietnam between 1966 and 1967. This alone strongly supports his claim. Further, one SPR of record indicates that he participated in fourteen combat operations and/or expeditions while in Vietnam. The SPR merely indicates that the Veteran participated in the operations, not that he actually engaged in combat during the operations. Nevertheless, the SPR is evidence tending to support the notion that he engaged in combat in Vietnam. Moreover, the Board has considered the Veteran's lay assertions of record in which he describes the circumstances of his service in Vietnam, and the combat conditions he encountered there. Inasmuch as the evidence is in a state of relative equipoise on this issue, the Board finds that the Veteran engaged in combat with the enemy in Vietnam. 38 U.S.C. §§ 1154(b), 5107(b). Certain evidence indicates that the Veteran did not incur a chronic back or left eye disorder during service. Although an April 1967 STR notes complaints of low back pain, the STRs do not indicate that the Veteran had chronic back or eye disability during service. Indeed, the December 1967 discharge report of medical examination noted the Veteran's back and eyes as normal upon examination. And the earliest evidence of either disorder following service is found in private x-ray reports of the lower back, dated over 10 years after discharge from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of time between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection). Nevertheless, this evidence notwithstanding, the Veteran is presumed to have injured his left eye and low back during service in Vietnam based on the lay evidence indicating back and left eye injuries there. See 38 U.S.C. § 1154(b). Lastly, the evidence addressing the issue of medical nexus does not preponderate against the Veteran's claims that the current low back and left eye disorders relate to the presumed injuries during service. See Dalton v. Nicholson, 21 Vet. App. 23, 31 (2007) (38 U.S.C. § 1154(b), which reduces the evidentiary burden for combat Veterans with respect to evidence of in-service incurrence of an injury, is not equivalent to a statutory presumption that the claimed disorder is service connected). With regard to the left eye, the evidence addressing the issue of medical nexus supports the claim. In the only VA medical examination to evaluate the claim, the March 2016 VA examiner found that the traumatic glaucoma in the left eye likely related to his report of an in-service injury. With regard to the low back, the evidence is less clear. The only examiner who commented on the claim submitted a June 2011 VA compensation examination report and a May 2016 addendum report. The Board requested the addendum report because the June 2011 report, which found back disability likely unrelated to service, did not consider evidence of chronic back disability dated in the late 1970s. In any event, the examiner again found against the Veteran in the May 2016 addendum report. At the outset of the report, the examiner stated that the degenerative changes in the low back were likely unrelated to service. However, the remainder of the opinion tends to support the Veteran's claim. The examiner discussed in great detail the evidence supporting the claim, such as lay evidence from the Veteran and family and a fellow marine. And then, toward the end of her report, she made the following statements which raise doubt about the earlier conclusion. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). After noting the x-ray evidence of the lower spine dated in the 1970s, the examiner conceded that she could not determine the significance of the reports. This raises questions about whether the x-ray reports contain evidence of a remote injury that may have occurred during service. After discussing evidence supporting the claim, the examiner stated that there was not "a clear case of relation of current condition to service." And then, in closing her opinion, the examiner stated that there was not a "greater than a 50% chance the Veteran's back pain is related to service activities." These two latter statements appear to shift the burden of proof to the Veteran in contravention of 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102. Further, when read together, the statements tend to reinforce reasonable doubt because they indicate that the evidence is not clear regarding whether the current disability relates to the in-service back injury. Thus, although the STRs and post-service evidence indicate that the Veteran did not incur chronic low back and left eye disorders during service, the Board cannot find that the preponderance of the evidence is against the claims for service connection. The Veteran presumably injured his low back and left eye during service in Vietnam, and the evidence does not preponderate against his claims that the current back and left eye disabilities relate to the in-service injuries. As such, this is an appropriate case in which to invoke VA's doctrine of reasonable doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection is therefore warranted for low back and left eye disorders. ORDER Entitlement to service connection for degenerative disc disease in the lumbar spine is granted. Entitlement to service connection for traumatic glaucoma in the left eye is granted. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs