Citation Nr: 19182467 Decision Date: 10/30/19 Archive Date: 10/30/19 DOCKET NO. 16-16 519 DATE: October 30, 2019 ORDER Entitlement to service connection for a post-submersion condition, oxygen deprivation with residuals of vision problems (“eye disability”) is denied. FINDING OF FACT The Veteran’s eye disability did not manifest in-service and is not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSION OF LAW The criteria for service connection for an eye disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from November 1943 to May 1946. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in May 2017 the Board denied the Veteran’s claim for entitlement to service connection for an acquired psychiatric disability and entitlement to service connection for an eye disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In July 2018, the Court issued a Memorandum Decision in which it affirmed the Board’s findings for the claim for entitlement to service connection for an acquired psychiatric disability; and vacated and remanded the claim for entitlement to service connection for an eye disability for further proceedings consistent with the Court’s findings. In March 2019, the Board remanded the issue on appeal and ordered that a VA examination be afforded to the Veteran. All evidentiary development has been accomplished and the claim is now before the Board. Service Connection Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for an eye disability is denied. After a review of the record, the Board finds that the criteria for service connection have not been met as the preponderance of the evidence supports a finding that the Veteran’s eye disability is not casually or etiologically related to an in-service event, injury or disease. At the outset, the Board finds that the Veteran is diagnosed with atrophic macular degeneration OU, end stage glaucoma OU, pseudophakia OU, and history of repaired retinal detachment OD. See July 2019 C&P Exam. As such, the first element of service connection has been met. Concerning the second element of service connection, the Veteran argues that he has vision problems as a result of his in-service submersion incident. The Veteran stated that he lacked oxygen and was exposed to sand-water mixture. See May 2015 VA 21-4138 Statement in Support of Claim. A review of the service treatment records shows that the Veteran did have a nonfatal submersion event in 1944. See January 2015 STR – Medical – Photocopy. However, despite the submersion incident, in his May 1946 separation examination, the Veteran was noted to have 20/20 vision in his bilateral eyes with normal color perception, with no disease or anatomical defects. As the records show that the Veteran had a nonfatal submersion event in service, the Board finds that the second element of service connection has been met. As for the third element, the Veteran was afforded a VA examination in July 2019. During the examination, the examiner diagnosed the Veteran with atrophic macular degeneration OU, severe glaucoma, pseudophakia OU, and history of repaired retinal detachment OD. The examiner opined that the Veteran’s atrophic macular degeneration OU is less than least as likely as not (less than 50 percent probability) caused by or a result of in-service nonfatal submersion incident. The examiner explained that risk factors for age-related macular degeneration are age, smoking, family history, prolonged sun exposure, and diet. The examiner also opined that the Veteran’s glaucoma is less than least as likely as not (less than 50 percent probability) caused by or result of in-service nonfatal submersion incident. The examiner explained that high eye pressure, family history of glaucoma, race, thin cornea, and suspicious optic nerve appearance are risk factors for glaucoma. The examiner also opined that his pseudophakia OU is less than least as likely as not (less than 50 percent probability) caused by or a result of an in-service nonfatal submersion incident. The examiner explained that factors that increased risk for cataracts include increasing age, diabetes, excessive exposure to sunlight, smoking, obesity, high blood pressure, previous eye injury/inflammation, and previous eye surgery. Additionally, the examiner opined that the Veteran’s history of repaired retinal detachment OD is less than least as likely as not (less than 50 percent probability) caused by or a result of in-service nonfatal submersion incident. The examiner explained that increased risk for retinal detachment is nearsightedness; previous cataract, glaucoma or other eye surgery; severe eye injury; or glaucoma medications. In support of his opinions, the examiner noted that in May 1946, more than a year after the 1944 nonfatal submersion incident, the Veteran was noted to have a visual acuity of 20/20 OD and OS; his pupils were equal and reacted to light; and the Veteran had no chief eye-related complaints. Further, the examiner wrote that near fatal drowning may cause brain ischemia or brain hypoxia. However, upon a review of the entire record, no evidence was noted for ischemia in either eye. Based on the foregoing, the examiner opined that the Veteran’s eye disability is less likely than not caused by or result of in-service nonfatal submersion incident. The Board affords great probative value to the July 2019 VA examiner’s assessment as it is well supported by, and is consistent with, the most probative evidence of record. The most probative evidence of record reflects that although the Veteran had an in-service nonfatal submersion incident, a medical note dated over a year after the 1944 submersion incident showed normal eye findings with no disease or anatomical defects. See January 2015 STR – Medical – Photocopy. The Board acknowledges the Veteran’s statements that his eye disability started in service but affords them low probative value. As noted in the VA examination, the chronological onset of the Veteran’s eye conditions was aphakia and retinal detachment OD after cataract surgery in 1978. He was diagnosed with advanced glaucoma in 2013, macular degeneration in 2013, and legal blindness in 2018. The Board finds it reasonable to assume that if he had eye related complaints on a continual basis since service separation, the Veteran would have sought treatment earlier than 1978, approximately 30 years after service. See July 2019 C&P Exam. This absence of evidence of eye-related complaints is more probative than his assertion that he had such symptoms on a continual basis since his separation. See Curry v. Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence can have greater probative value than inconsistent testimony provided by the claimant at a later date). Further, as noted above, his May 1946 separation examination showed that the Veteran had 20/20 visual acuity with no disease or anatomical defects. See January 2015 STR – Medical – Photocopy. In conclusion, the preponderance of the evidence establishes that his eye disability was not manifested during service and is not otherwise related to his active service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Thus, the claim is denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Noh, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.