Citation Nr: 20053801 Decision Date: 08/13/20 Archive Date: 08/13/20 DOCKET NO. 08-13 468 DATE: August 13, 2020 ORDER Service connection for a left eye disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding the Veteran had a left eye disorder that began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a left eye disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had service from July 1964 to July 1966. He died in September 2015. The appellant is the Veteran’s surviving spouse. This matter was previously before the Board in April 2012, at which time it was remanded for additional development. Thereafter, in a March 2014 decision, the Board denied the Veteran’s claim for a left eye disorder. However, prior to his death, the Veteran appealed the Board’s denial to the Court of Appeals for Veterans Claims (Court). In December 2014, the Court issued an order granting a December 2014 Joint Motion for Partial Remand (JMPR) to vacate the Board’s decision and to remand the above claim to the Board for further action consistent with the JMPR. In June 2015, the Board remanded the Veteran’s claim for service connection for a left eye disorder for additional development. Following that action, the Board again denied the claim in an April 2018 decision. The appellant appealed the April 2018 Board decision to the CAVC, which, in November 2018, issued an order granting a Joint Motion for Remand (JMR) to vacate the denial. The Board considered this appeal in June 2019, and remanded the issue for compliance with the November 2018 CAVC order. The Board remanded the issue again in February 2020 in order to substantially comply with the June 2019 remand directives. The issue of entitlement to service connection for a left eye disorder has now been returned to the Board for appropriate action. The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. 1. Entitlement to service connection for a left eye disorder. The appellant contends that the Veteran had a left eye disorder related to service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997. In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board has an inherent fact-finding ability. Id. at 1076. The United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). The question for the Board is whether the Veteran had a disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran had a diagnosis of dry eyes, ocular hypertension, refractive error, presbyopia, and cataracts, and evidence shows that he was treated for various left eye injuries during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of dry eyes, ocular hypertension, or cataracts began during service or is otherwise related to an in-service injury, event, or disease. Initially, the Board notes that refractive error of the eye is not a disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c) and 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). In the absence of a superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, hyperopia, presbyopia, and astigmatism, even if visual acuity decreased in service, as those are not a diseases or injuries within the meaning of applicable legislation relating to service connection. Id. Thus, VA regulations specifically prohibit service connection for refractive errors of the eyes unless the defect was subjected to a superimposed disease or injury that created additional disability. VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45,711 (1990). As a result of the November 2007 VA examination, the Veteran was diagnosed to have a refractive error and presbyopia in the left eye. None of the evidence reflects that these were subjected to a superimposed disease or injury. Hence, service connection for these conditions is precluded by law. The discussion below will focus on the remaining diagnoses. January 1965 service treatment records show that the Veteran was treated for a hair in his left eye. In September 1965, he was seen for complaints of pain and lacrimation of two days’ duration that started after swimming, although he noted a history of lacrimation when reading. The impression was pain secondary to irritation from a previous foreign body in the eye. Subsequently, there is an undated treatment record sometime between January and April of 1966 that noted the Veteran’s complaint of burning in his eyes. In April 1966, he again was treated for foreign matter (cement particles) in both eyes. His eyes were washed out and ointment was applied. In May 1966, he reported having pain at the top of the eyes, but no further treatment was noted. Service treatment records do not indicate further complaints, treatment, or diagnoses related to the eyes. Separation examination reports from July 1966 are negative for any complaints or abnormal findings related to the Veteran’s eyes. VA treatment records show the Veteran was not diagnosed with dry eyes until July 2006, ocular hypertension in October 2007, and cataracts in November 2007, all of which occurred decades after his separation from service. Of particular note, December 2005 VA treatment records indicate longstanding complaints of decreased vision in the right eye. October 2007 VA optometry treatment records note the Veteran had longstanding vision loss in the right eye and stable vision in the left eye. May 2009 correspondence from the Veteran stated his belief that his left eye condition originated in 1965 when he got something in his eye and that the condition from 2006 was an exacerbation of that condition. While the Veteran was competent to report having experienced symptoms of pain in his left eye since service, he was not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of dry eyes, ocular hypertension, or cataracts. The issue is medically complex, as it requires specialized medical education and interpretation of complicated diagnostic testing, which he was not shown to have possessed. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Taken together, the several VA opinions of record establish that none of the Veteran’s left eye disorders were at least as likely as not related to an in-service injury, event, or disease, including treatment for the aforementioned injuries during service. The November 2007 VA examiner opined that the Veteran’s left eye cataract, refractive error, and presbyopia were not at least as likely as not caused by or a result of complaints and treatment from active duty. The August 2015 VA examination revealed left eye diagnoses for optic atrophy, dry eye syndrome, cataracts, and visual field defect. The VA examiner opined that these diagnoses were less likely as not caused by or related to the treatment received in service. The rationale was that the Veteran’s separation examination showed normal vision in both eyes. The VA examiner further stated that the Veteran’s “left eye vision decline is of unknown etiology, but it did not begin until 2008.” The VA examiner stated, “There was a visual field defect in the left eye in 2008 from a stroke in 2008.” The November 2017 VHA medical expert (Chief, Division of Ophthalmology) opined that none of the Veteran’s left eye disorders, specifically the disorders of dry eye and ocular hypertension, were not at least as likely as not related to service. The rationale was that: [w]hile on active duty, there was no mention of findings associated with dry eyes. He had no eye complaints on his exit exam. The only possible complaints during service was one episode with ‘a hair in the left eye,’ that resolved. This could have been a hair or other particle that washed out in tear film. No lingering complaints referable to dry eye. Even with wildest speculation that he had a corneal abrasion that was overlooked and continued problem thereafter is dismissed by lack of a single finding or historical or physical evidence of recurrent erosion. Pain and watering is not an uncommon complaint after swimming and usually resolves after a few days without treatment, which was the case here. The episode of ‘cement particles’ which were washed out quickly resolved. The episode of achiness over both eyes could have been anything –not a symptom of dry eyes, and resolved. Some 40 years later when examined by an ophthalmology resident the term ‘dry eye’ was invoked, probably to link it to his [prescription] renewal for artificial tears that he could obtain at the VA to be used as needed. These drops are available world-wide over the counter for various types of eye discomfort. In a ‘dry eye patient,’ when the symptoms and signs are serious enough to affect that patient’s quality of life or visual acuity, artificial tears are used in a vigorous, plentiful fashion, along with a host of other treatments –none of these are at play here. Also, there is no history of dry eyes or treatment thereof in the reported review of the records of his private doctor. The incidence of dry eyes increases with age, and can be significantly affected by environment, computer use, ceiling fans, heat or air conditioning, climate, etc., but the physician concluded that one can see that the data is compelling that dry eye disease attributed to the Veteran’s military service is an untenable concept. As for ocular hypertension, the VA ophthalmologist stated that: [t]his term is applied when a patient’s intraocular eye pressure is checked and found to be higher than the bell-shaped curve in the population (> than 2 standard deviation above the mean). It was once thought (1950’s –1980’s) to be strongly linked to glaucoma, but is now well known to be variable and only a risk factor for glaucoma, and a relatively poor screening tool. Aside from the term, nowhere in the records is there documented ‘ocular hypertension’ (high eye pressure) in the left eye – even decades later (and off any pressure lowering drop). Age is a risk factor for increasing eye pressure/glaucoma, and African-American race is also a risk factor. However, examination of the Veteran’s eyes 40 years after his military service reveals a healthy normal optic nerve. A specific pattern of decay of the optic nerve is the diagnostic bottom line for glaucoma, and has a link to ocular hypertension when present. Could he have had ocular hypertension and it not be known while serving in the military? Yes, it is theoretically possible as it is silent, but 20-30 years old folks were never checked for it in those days as it was thought to be (and is) so rare, that it was something to check after age 40. Even if he had ocular hypertension (which was never documented with objective data) it does not matter, as his optic nerve in the left eye was entirely normal 40 years later. Thus, this issue is really a non-issue. The September 2019 VA addendum opinion stated the Veteran’s cataract of the left eye was less likely as not incurred in or caused by or related to the Veteran’s service. The rationale was that the Veteran’s left eye cataract was a “typical age-related cataract,” and that it was “typical for a person of his age and were not the result of the Veteran’s service.” The VA examiner also opined that the Veteran’s ocular hypertension was less likely as not related to service. The rationale was the Veteran’s ocular hypertension was more likely “age-related as the intraocular pressure was only at 22 or more at two visits and was not elevated at the subsequent [examination] in 2008 or at the C&P examination in 2015.” The VA examiner further detailed that the gonioscopy in March 2007 “did not reveal any abnormalities of the anterior chamber angle that could have contributed to the ocular hypertension.” Lastly, the VA examiner concluded that the Veteran’s left eye complaints during service “all were self-limiting complaints without residuals based on the data. The episodes of foreign bodies, lacrimation, burning, and pain on top of eyes are not complaints consistent with cataracts or ocular hypertension and cannot cause cataracts or ocular hypertension.” The March 2020 VA addendum opinion found the left dry eye syndrome was less likely than not incurred in or caused by, or related to, the treatment received during service. The rationale was that the complaints during service were mostly related to episodes of foreign bodies and swimming. A complaint of “pain top of eyes” is vague and not a typical symptom of dry eye syndrome. The VA examiner explained that the Veteran’s treatment in service was “self-limiting and without residuals based on the data. The separation examination did not list any ocular complaints at the time of separation. Also, records do not show any chronicity of dry eye syndrome and prescription for artificial tears is only seen in one record from 2006.” The Board finds the November 2007 VA examination and November 2017 VHA medical expert’s opinion and the September 2019 and March 2020 addendum opinions are highly probative and persuasive evidence as to whether the Veteran had a left eye disorder related to his active military service. The Board acknowledges that the parties in the JMPR agreed that the November 2007 medical opinion was inadequate, but only insofar as it failed to address the diagnosis of dry eyes and ocular hypertension. Thus, the Board finds that the VA examiner’s opinion as to left eye cataracts is still adequate. Similarly, the JMPR found the VHA opinion to be inadequate as it did not discuss the left eye cataracts and did not acknowledge the prior diagnosis of ocular hypertension. To the extent to which the opinion discusses dry eyes, it is still adequate. In sum, the November 2007 and September 2019 examiners clearly concluded the cataracts were not related to service. The November 2017 VHA opinion and March 2020 opinions clearly concluded the dry eyes were not related to service. The September 2019 examiner reviewed the record and considered the fact that the Veteran had ocular hypertension at 2 visits but explained this was likely age related and was not related to any of the complaints and symptoms noted during service. The physicians considered the Veteran’s past medical history, his contentions, and examination findings and, based on that comprehensive review, rendered appropriate opinions consistent with the evidence of record. They cited to pressure findings, eye pathology that would likely be seen with various diagnoses and other diagnoses that could result in similar symptoms. .The examiners’ combined opinion is highly probative of a negative nexus between the Veteran’s left eye disorder and his military service because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran and the appellant believe the Veteran’s left eye disorder is related to an in-service injury, event, or disease. However, the Veteran and the appellant in this case are not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical knowledge of pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran and the appellant in this case because the record does not show that they have the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the combined VA medical opinions. (Continued on the next page)   There can be no doubt that the Veteran rendered honorable and faithful service for which the Board is grateful, and the appellant and Veteran are sincere in the belief that his eye conditions were related to his service. After a full review of the record, the weight of the evidence demonstrates that a left eye disorder did not have its onset in service and was not otherwise related to service for the reasons discussed above. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Connally, 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.