Citation Nr: 20047028 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 13-22 329 DATE: July 14, 2020 ORDER Entitlement to service connection for a left eye disability, to include residuals of a left eye injury, is denied. FINDING OF FACT None of the Veteran’s current left eye disabilities began during service or are otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a left eye disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.301, 3.302, 3.303, 4.9. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1974 to April 1975. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied service connection for a left eye and jaw disabilities. In January 2011, VA received the Veteran’s Notice of Disagreement (NOD). In July 2013, the RO issued a Statement of the Case (SOC). In August 2013, VA received the Veteran’s VA Form 9 appeal to the Board. In July 2014, the Veteran testified at a video conference hearing at the RO before a Veterans Law Judge (VLJ) who is no longer employed at the Board. A transcript of that testimony is of record. In April 2015 the Board remanded the case for further development and adjudicative action. In May 2016, the Board sent a letter to the Veteran informing him that the VLJ before whom he had testified in July 2014 was no longer employed at the Board and advising him that he had a right to a new hearing before another VLJ that would decide his case. The Veteran did not request a new hearing within the allotted 30-day time period. In December 2017 the Board again remanded the case for further development and adjudicative action. In a March 2020 rating decision, the RO granted service connection for the jaw disability and assigned an initial disability rating of 20 percent. Therefore, as the benefit sought on appeal has been granted in full, there remains no question of law or fact relating to the jaw issue over which the Board has jurisdiction. 38 U.S.C. § 7104(a), 7105. 1. Entitlement to service connection for a left eye disability, to include residuals of a left eye injury. The Veteran asserts that his current left eye disability is related to an in-service injury to his left eye. The Veteran has current diagnoses including bilateral cataracts and bilateral posterior vitreous detachment. Additionally, the Veteran has testified to left eye pain. Therefore, the question for the Board is whether any of the Veteran’s current left eye disabilities began during service or are otherwise related to service. The Board concludes that the Veteran’s current left eye disabilities are not related to service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease, including organic diseases of the nervous system, is shown as such in service, subsequent manifestations of the same chronic disease are generally service-connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Regarding the “current disability” element of the test for service connection, the Federal Circuit held in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) that “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and moreover, that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Saunders, 886 F.3d at 1364.   Refractive errors are not considered diseases or injuries for VA purposes, and thus provide no basis for service connection. 38 C.F.R. §§ 3.303(c), 4.9; Beno v. Principi, 3 Vet. App. 439, 441 (1992). In the absence of a superimposed disease or injury, service connection may not be allowed for refractive error of the eye even if visual acuity decreased in service, as it is not a disability within the meaning of applicable legislation relating to service connection. See id.; see also VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45,711 (1990). As noted, the Veteran contends that his current left eye disabilities are related to an in-service injury. Specifically, he reports that he injured his left eye in 1975 after having a door hit the left side of his face. The Veteran believes that his left eye was scratched (described as a “corneal abrasion”) as a result of the trauma. See Dr. G., eye outpatient note dated August 20, 2014. After the incident, the Veteran has testified that his left eye was medicated and covered with a patch for several days. See Dr. G., eye clinic note dated December 16, 2015. Thereafter, he has indicated experiencing symptoms including blurred vision and periodic left eye pain following the initial injury, with symptoms continuing to the present. See January 2020 VA examination report; see also July 2014 Board hearing transcript. When considering the credibility of lay evidence, the Board may consider internal consistency, facial plausibility, and consistency with other evidence of record.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Moreover, the Veteran is competent to describe observable symptoms, such as blurred vision and pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran’s service treatment records (STRs) reveal that he injured his left eye after walking into a latrine door. The injury is described as “trauma to the inferior eyelid.” The Veteran complained of blurred vision and displayed eye redness. Additionally, the STR notes “little sharp pain in cornea of eye.” The eye was responsive to light. The Veteran’s left eye vision was noted as 20/25. He was treated with neosporin and given an eyepatch. The treating physician found that “the cornea is not involved.” STRs dated January 15, 1975. The following day, the Veteran returned for a recheck. The STR noted that “the lid has healed well” and treatment was discontinued. STRs dated January 16, 1975. At separation, the Veteran tested at 20/20 visual acuity in both eyes. Additionally, the Veteran did not report eye pain or other symptomatology. He did indicate a past head injury, broken jaw, and chronic or frequent colds, among other conditions. However, at separation, the Veteran did not report any current complaints regarding his health. See STRs dated February 10, 1975. The Veteran has submitted a statement from his ex-spouse. She testified that, around the time of separation, the Veteran’s left eye was red and painful “at times” and that the Veteran treated these symptoms with eye drops. See C.T., February 2018 statement. Based on the foregoing, the Veteran’s statements regarding his in-service eye injury are credible. Additionally, although not noted in the separation examination report, the Veteran’s description of residuals is corroborated by his ex-spouse’s statement as to his symptomatology around the time of separation from service. Notwithstanding, there is no medical evidence of record showing that the Veteran was treated for eye pain or other symptomatology prior to VA’s receipt of the Veteran’s August 2009 claim for disability, received more than thirty years after separation from service. As such, the evidence of record is insufficient for a finding of continuity of symptomatology following in-service onset. Accordingly, the analysis turns to the medical nexus evidence of record. The Veteran received VA examinations for his claimed left eye disability in August 2015 and January 2020. Additionally, an October 2010 VA consultation report for the Veteran’s left eye is of record. The October 2010 consultation report noted no signs of residuals from the in-service left eye injury, including no indication of scarring on the cornea. The examiner found corrected left eye visual acuity of 20/80. However, he noted that the results of the October 2010 testing conflicted with a May 2010 vision exam showing corrected acuity of 20/20 in the left eye and opined that the Veteran’s poor vision was “non organic” and “more likely than not due to lack of cooperation.” The August 2015 examiner provided diagnoses of bilateral cataracts, bilateral posterior vitreous detachment, bilateral hypertensive retinopathy, bilateral pinguecula, bilateral arcus senilis, and left eye asteroid hyalitis (all from between 2012 and 2015). Moreover, he noted that the Veteran used artificial tears for dry eye syndrome. The Veteran’s uncorrected near left eye visual acuity was measured at 20/200 and distance acuity was 20/70, both correctable to 20/40 or better. Regarding the etiology of the Veteran’s left eye disabilities, the examiner opined that the eye disabilities were less likely than not related to the claimed in-service injury. He reasoned that, despite the in-service record of treatment for an eye injury, “no permanent residual or chronic disability from this injury is shown any where in the medical records of the veteran.” No further rationale was provided as to etiology. However, the examiner also noted that the “marked decrease in visual acuity and visual field” shown during the examination “cannot be connected to eye conditions found today or noted in records.” The January 2020 examiner provided diagnoses of bilateral age-related nuclear sclerotic cataracts, from approximately 2014, and bilateral dry eye syndrome, “as early as” 2010. During the VA examination, uncorrected near and distance left eye visual acuity were measured at 20/100, corrected to 20/70 for near and distance. Acuity measurements in the right eye for uncorrected and corrected near and distance were similar. Regarding the objective results of the examination, the examiner noted that “the Veteran refused the automated visual testing on the left eye,” and noted that “the Veteran exhibited a subjective lack of cooperation throughout the exam.” Nevertheless, the examiner found that “confrontation visual fields were normal in the right and the left eye” and “OCT [optical coherence tomography]” was also normal in both eyes. He opined that the decrease in visual acuity was likely caused by the Veteran’s age-related bilateral nuclear sclerotic cataracts. Furthermore, regarding the etiology of the Veteran’s eye disabilities generally, the examiner opined that the Veteran displayed “no residuals of a left eye injury,” and that it was less likely than not that the Veteran’s claimed eye disabilities had onset during or are otherwise related to service. First, he noted that the January 1975 STR entry indicated “that the cornea was involved” and, moreover, that “the cornea also appeared clear today during the exam.” Regarding the Veteran’s visual acuity, the examiner observed that acuity “was documented to be 20/20 in the left eye as recently as a 2012 eye exam, 37 years after the reported eye injury in 1975,” and opined that a disability related to the 1975 injury would have manifested sooner. Finally, “due to the symmetry between the findings on the left and right eye and the length of time before symptoms of blurred vision manifested,” the examiner concluded that the Veteran’s eye diagnoses were “most likely age related.” Turning to the probative value of the medical opinions of record, the following factors are considered when evaluating the probative value of medical opinions: (1) whether the examiner is informed of the pertinent factual premises i.e. medical history of the case; (2) whether the examiner provides a fully articulable opinion, avoiding speculative language that does not provide the certainty needed for medical nexus evidence; and, (3) whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-4 (2008). Regarding the October 2010 consultation report, the examiner’s finding of lack of corneal scarring or other residuals from the in-service injury is noted. However, given that since the October 2010 consultation has received several diagnoses pertaining to the left eye, it is afforded no probative value as to the eye disabilities diagnosed in the years following the consultation. Regarding the August 2015 opinion, and as noted by the December 2017 Board decision, the examiner failed to provide a rationale supporting the conclusion that a nexus between the in-service left eye injury and current left eye disabilities did not exist. Accordingly, it is afforded no probative value as to nexus. Regarding the January 2020 opinion, the examiner discussed extensively the Veteran’s in- and post-service medical history as well as current medical findings during the VA examination. Furthermore, he considered the Veteran’s lay reports about the original eye injury and symptomatology during and after service. The examiner provided a fully articulated opinion regarding nexus and offered, in support, a reasoned analysis based on the Veteran’s medical history and objective testing. Accordingly, the January 2020 opinion is afforded significant probative value. Additionally, although there is ample evidence of record that the Veteran suffers from left eye pain, the claims file provides no lay or medical evidence that the left eye pain rises to the level of a functional impairment on its own. Indeed, while the January 2020 examiner noted periodic left eye pain, he found functional impairment due only to decreased visual acuity. Accordingly, as there is no evidence that the left eye pain interfered with the Veteran’s employment, consideration of the left eye pain as an independent disability under Saunders is not warranted. (Continued on the next page)   Moreover, although the Veteran sincerely believes that his currently diagnosed left eye disabilities are related to service, his opinion in that regard is not competent. The Veteran is certainly competent to report observable symptoms (such as pain, for example) and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 454 F.3d 1331 (Fed. Cir. 2006); Jandreau, 492 F.3d at 1372. In addition, lay witnesses may, in some circumstances, competently opine on questions of diagnosis and etiology (such as the onset of an observable symptom such as varicose veins, for example). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, the question of the etiology of the left eye disabilities falls outsides the realm of common knowledge of a lay person, particularly in light of the lengthy time period between service and the left eye diagnoses of record. See Jandreau, 492 F.3d at 1377 n.4. The diseases involve complex internal processes as opposed to external processes or something capable of lay observation. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion on medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Therefore, his opinion lacks probative value. Accordingly, the preponderance of the evidence shows that the Veteran’s currently diagnosed left eye disabilities did not begin during service or are otherwise related to service. Because the weight of the evidence is against a competent and probative medical nexus between the Veteran’s left eye disabilities and service, the preponderance of the evidence is against an essential element of the claim. The benefit of the doubt doctrine is therefore inapplicable and entitlement to service connection for any left eye disability is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Law Clerk 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.