Citation Nr: 20023059 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 12-02 569A DATE: April 2, 2020 ORDER The appeal for service connection for a left eye disorder (claimed as right retina burn) is denied. REMANDED The appeal for service connection for a right foot disorder is remanded. The appeal for service connection for a right elbow disorder is remanded. The appeal for service connection for a left elbow disorder is remanded. The appeal for service connection for a right wrist disorder is remanded. The appeal for service connection for a left wrist disorder is remanded. The appeal for service connection for a right knee disorder is remanded. The appeal for service connection for a left knee disorder is remanded. The appeal for service connection for a low back disorder is remanded. The appeal for service connection for a right thigh disorder (claimed as numbness in the right thigh) is remanded. FINDING OF FACT A chronic left eye disability, diagnosed as lattice degeneration of the left retina, was not manifested during service and is not shown to be related to active service. CONCLUSION OF LAW The criteria for service connection for a left eye disorder are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 4.9 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1989 to March 1993. This appeal was remanded by the Board in September 2015 for a hearing, which was withdrawn in November 2015. The Board subsequently remanded the appeal in August 2019 for further development. There was substantial compliance with the August 2019 remand directives for the issue on appeal discussed below on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, VA treatment records dated since October 2018 were obtained and associated with the record and the Veteran was provided a VA examination and medical opinion in September 2019. This issue was also readjudicated in November 2019 and January 2020 supplemental statements of the case (SSOCs). Neither the Veteran nor his attorney has raised any other issues with the duty to notify or duty to assist for the issue on appeal discussed below on the merits. 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). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a) (2012); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for a left eye disorder. The Veteran has a current left eye disability of lattice degeneration of the left retina. See e.g. September 2019 VA examination report. The Veteran asserts that his current disability is related to lasers used in service during mock combat scenarios. He reported that at the time, after participating in the war games in 1990, he had problems focusing, headaches, and decreased vision in the eye. He reported that he was told by his doctor at the time that he had a mild burn on his retina and irritation due to the lasers. See October 2010 statement. Service treatment records confirm that the Veteran was treated for left eye problems in 1990. The Veteran reported that he continued to have problems after that and hoped it would get better but it did not. He reported that he was treated again in April 1992 and given a laser eye examination and prescription for glasses. The Veteran also explained that even if any of his vision loss was found to be due to allergies by the VA examiner, it is still related to service because he had bad allergies during basic training in May 1989. See March 2012 statement. Regarding any asserted vision loss, the Board notes that in the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303 (c), 4.9. Thus, VA regulations specifically prohibit service connection for refractive errors of the eyes unless such defect was subjected to a superimposed disease or injury during service which created additional disability. See VAOPGCPREC 82-90 (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). The question for the Board is whether the Veteran’s left eye lattice degeneration is due to service. The Veteran was provided a VA examination for eye conditions in September 2019. The VA examiner determined that it was less likely than not that the current disability is related to service because there is no known association between lattice degeneration and laser exposure, nor is there an association with trauma or physical activities. Thus, the examiner concluded that there is nothing to connect the lattice degeneration to any episodes while in service. The Board acknowledges the Veteran’s statements and belief that his current left eye disorder is related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, diagnosis and etiology of an eye disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As such, the Board assigns limited probative value to any lay statements associating the Veteran’s lattice degeneration and service. There are no other opinions of record in favor of the claim. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for a left eye disorder. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt provision is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right foot disorder. Pursuant to the August 2019 Board remand, the Veteran was provided with a VA examination for foot conditions in November 2019. The November 2019 VA examiner rendered a diagnosis of right foot pes planus with plantar fasciitis and healed fractures. The VA examiner also determined that the Veteran’s current right foot disability is less likely than not related to service because there is no documentation that he incurred a right foot disability during service and, although there is documentation of pes planus in the left foot during service, it is atypical for a musculoskeletal condition in one lower extremity to cause a contralateral condition except in cases of pronounced asymmetry of gait or weight bearing which is absent in the current case. The examiner also cited VA examinations and/or treatment records which noted that the Veteran’s gait was normal in 2009, 2013, 2017, and 2019. Nevertheless, the VA examiner did not address the September 2010 VA examination report which noted that the Veteran had an antalgic, stooped gait and walked as if in pain. The VA examiner also based the medical opinion on a finding that there was no record of a right foot disorder during service; however, this finding does not appear to take into consideration the Veteran’s competent and credible statements that he experienced bilateral foot pain and bruising in service. In the Veteran’s October 2010 statement, he also reported that his doctor at the time evaluated the bruising and pain and told the Veteran that he had flat feet. An addendum opinion is required to address the Veteran’s competent and credible statements that he experienced pain and bruising on the arches of the right foot during service. 2. Entitlement to service connection for right and left elbow disorders, to include ulnar neuropathy. The Veteran reported experiencing pain and burning in both elbows since 1990, during service. See October 2010 statement. Pursuant to the August 2019 Remand, the Veteran was provided with VA examinations for elbow and forearm conditions and for peripheral nerves conditions in November 2019. The August 2019 Remand directed that the VA examiner take into consideration the Veteran’s lay statements in reaching any conclusion as to whether it is at least as likely as not that any elbow disorder is related to service. The November 2019 VA examiner rendered diagnoses of right elbow strain, left elbow degenerative disease, and bilateral upper extremity paresthesias. The examiner reasoned, in part, that the record was silent for any elbow joint symptoms prior to 2002 and silent for elbow area neuropathy symptoms prior to October 2008. Nevertheless, in reaching this conclusion, the VA examiner did not reconcile the Veteran’s written statement (October 2010 statement) and consistent statements made to prior VA examiners (e.g., September 2010 VA examination) that he had experienced elbow pain since 1990, even though the examiner included the statement in the recitation of facts in the report. Because the examiner appears to have based the medical opinion on inaccurate facts, the Board finds that an addendum opinion is required. 3. Entitlement to service connection for a right and left wrist disorders. As discussed in the August 2019 Remand, the Veteran asserts that he has experienced bilateral wrist pain since service. During VA general medical examinations in September 2010 and December 2011, the Veteran reported that his bilateral wrist problems began with the repetitive daily assembly and disassembly of the Cruiser weapon while on active duty and continued since discharge. The September 2010 and December 2011 VA examiners did not offer medical opinions regarding the etiology of the wrist pain. Thus, the Board remanded the appeal for such opinion in August 2019. Pursuant to the remand, the Veteran was afforded a VA examination for wrist conditions in November 2019. The November 2019 VA examiner concluded that it was less likely than not that the Veteran’s current bilateral wrist strain was related to service because there was no documented wrist disorder in service, or prior to October 2008. In reaching this conclusion, the examiner did not reconcile the Veteran’s consistent statements that he experienced bilateral wrist pain since service. The Board finds the Veteran’s statements to be credible. Therefore, an addendum opinion is necessary to reconcile why any current disorder is not related to service, to include competent and credible statements regarding wrist pain during service, even though the Veteran did not seek treatment for the same. 4. Entitlement to service connection for a right and left knee disorders. As discussed in the August 2019 Remand, the Veteran asserts that he has experienced bilateral knee pain since service. The Veteran was provided with a VA examination for knee and lower leg conditions in November 2019 pursuant to the remand. The November 2019 VA examiner determined that the Veteran’s current bilateral knee degenerative arthritis was not due to service but explained that the reason was because there was no record of a fall prior to July 2002. The examiner did not explain why evidence of a fall was required to support a finding of service connection. Further, it appears that the examiner did not consider the Veteran’s competent and credible reports of experiencing bilateral pain since service. As such, the November 2019 VA opinion is not adequate and a VA addendum opinion is required. 5. Entitlement to service connection for a low back disorder. The Veteran has a current diagnosis of degenerative disease in the spine and asserts that his low back pain began during service. In its August 2019 remand, the Board sought a VA opinion regarding a relationship between the Veteran’s current disorder and service. At that time, the Board noted the Veteran’s assertion that all of his joint pains began with intensive physical activities in service, including physical training, combat, and playing sports such as softball and flag football during service. Additionally, the Board notes that during a September 2010 VA examination, the Veteran reported having had intermittent back pain since service. The Board also notes the Veteran’s attorney explanation for the lack of documentation of treatment for the low back in service because it is quite common for service members to work through pain. See e.g. September 2018 attorney brief. The Veteran was provided with a VA examination for back conditions in November 2019 and the examiner determined that the Veteran’s current low back disorder was not related to service. The examiner based the opinion on the fact that the Veteran had not received treatment for the back complaints in service. In reaching this conclusion, the examiner did not address the Veteran’s assertion that he had experienced back symptoms since service. As such, a remand for an addendum opinion is required. 6. Entitlement to service connection for a right thigh disorder (claimed as numbness in the right thigh). While the Board remands the issue of entitlement to service connection for a low back disorder for additional evidentiary development, as discussed above, that decision may impact this claim for right thigh disorder. As such, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Lastly, as the Veteran has ongoing VA treatment, any outstanding VA treatment records dated since November 2019 should be obtained while on remand. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records dated since November 2019. 2. Following completion of item 1, return the Veteran’s claims file to the examiner who conducted the November 2019 VA examination for foot conditions so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: The September 2010 VA examination report noted that the Veteran had an antalgic, stooped gait and walked as if in pain. The Veteran has provided competent and credible statements that he experienced bilateral foot pain and bruising in service. In an October 2010 statement, the Veteran also reported that his doctor at the time evaluated the bruising and pain and told the Veteran that he had flat feet. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right foot disorder (diagnosed as right pes planus with plantar fasciitis and healed fracture) began during active service or is related to an incident of service, to include consideration of in-service right foot pain and bruising. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Return the Veteran’s claims file to the examiner who conducted the November 2019 VA examination for elbow and forearm conditions so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: The Veteran has provided competent and credible statements that he engaged in intensive physical activities in service, including physical training, combat, and playing sports such as softball and flag football during service. The Veteran has provided competent and credible statements that he has experienced elbow pain since service. The examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right elbow strain (i) began during active service or (ii) is related to an incident of service, to include consideration of in-service physical activities and pain since service. (b.) Whether it is at least as likely as not that the Veteran’s left elbow degenerative disease (i) began during active service, (ii) is related to an incident of service, to include consideration of in-service physical activities, or (iii) if symptoms of arthritis began within one year after discharge from active service, to include consideration of pain since service. (c.) Whether it is at least as likely as not that the Veteran’s bilateral upper extremity paresthesias began (i) during active service or (ii) is related to an incident of service, to include consideration of in-service physical activities and pain since service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Return the Veteran’s claims file to the examiner who conducted the November 2019 VA examination for wrist conditions so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: The Veteran has provided competent and credible statements that he engaged in intensive physical activities in service, including physical training, combat, and playing sports such as softball and flag football during service. The Veteran has provided competent and credible statements that he has experienced wrist pain since doing pushups in service. The examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right wrist strain (i) began during active service or (ii) is related to an incident of service, to include consideration of in-service physical activities and pain since service. (b.) Whether it is at least as likely as not that the Veteran’s left wrist strain (i) began during active service or (ii) is related to an incident of service, to include consideration of in-service physical activities and pain since service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. Return the Veteran’s claims file to the examiner who conducted the November 2019 VA examination for knee and lower leg conditions so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: The Veteran has provided competent and credible statements that he engaged in intensive physical activities in service, including physical training, combat, and playing sports such as softball and flag football during service. The Veteran has provided competent and credible statements that he has experienced knee pain since service. The examiner must opine as to the following: (a.) Whether it is at least as likely as not that the Veteran’s right knee degenerative arthritis (i) began during active service, (ii) is related to an incident of service, to include consideration of in-service physical activities, or (iii) began within one year after discharge from active service, to include consideration of pain since service. (b.) Whether it is at least as likely as not that the Veteran’s left knee degenerative arthritis (i) began during active service, (ii) is related to an incident of service, to include consideration of in-service physical activities, or (iii) began within one year after discharge from active service, to include consideration of pain since service. (c.) If the examiner maintains that the disorders are not related to service, the examiner is asked to reconcile the finding that there was no evidence of a fall prior to 2002. In this regard, the examiner should explain why it matters that there was no evidence of a fall prior to that period. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 6. Return the Veteran’s claims file to the examiner who conducted the November 2019 VA examination for back conditions so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: The Veteran has provided competent and credible statements that he engaged in intensive physical activities in service, including physical training, combat, and playing sports such as softball and flag football during service. The Veteran has provided competent and credible statements that he has experienced back pain since service. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back disorder (diagnosed as lumbar spine degenerative arthritis) (i) began during active service, (ii) is related to an incident of service, to include consideration of in-service physical activities, or (iii) if symptoms of arthritis began within one year after discharge from active service, to include consideration of pain since service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 7. Then, review the medical opinions and any examination reports provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the Agency of Original Jurisdiction (AOJ) must implement corrective procedures. 8. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the Veteran’s claims based on the entirety of the evidence. If any claim remains denied, issue the Veteran and his attorney a supplemental statement of the case. Allow an appropriate period of time for response. Then, return the case to the Board. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Donna D. Ebaugh, 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.