Citation Nr: 21000171 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 11-29 760 DATE: January 4, 2021 ORDER Service connection for a right eye disability is denied. Service connection for a left eye disability is denied. FINDINGS OF FACT 1. The probative evidence does not show that any of the Veteran’s right eye disabilities are causally related to his active service. 2. The probative evidence does not show that any of the Veteran’s left eye disabilities are causally related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right eye disability have not been met. 38U.S.C. 1110, 5107; 38C.F.R. 3.102, 3.303. 2. The criteria for service connection for a left eye disability have not been met. 38U.S.C. 1110, 5107; 38C.F.R. 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2001 to March 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2010 and April 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In October 2013, the Board remanded the service connection claim for the right eye disability for the RO to schedule him for a hearing. In September 2015, the Veteran and his sister, T.S., testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In November 2015, the Board denied the service connection claim for the right eye disability. Subsequently, the Veteran filed an appeal of the November 2015 Board decision with the United States Court of Appeals for Veterans Claims (CAVC). In December 2016, the parties filed a joint motion for remand (JMR), and accordingly, the service connection claim for the right eye disability was remanded to the Board for additional development. In June 2017, May 2019, and September 2019, the Board remanded both service connection claims for the right eye and left eye disabilities, for further development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of a current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran asserts that he is entitled to service connection for his bilateral eye disabilities. See e.g. October 2020 Appellate Brief. At his September 2015 videoconference hearing, the Veteran testified that while in the military, he had hand to hand combat, while he was standing in a tire pit, when a piece of wire got stuck in his eye. He further clarified that he got slammed in a tire pit and a piece of wire was stuck in, hanging out his eye. The medical evidence reflects current bilateral eye disabilities, to include, bilateral dry eye syndrome; refractive error, compound hyperopic astigmatism of the right eye; refractive error, simple hyperopia of the left eye; and bilateral eye, seasonal ocular allergies. See e.g. March 2015 Eye Consult Note; see also, January 2020 VA Examination Report. Service treatment records (STRs) corroborate the Veteran’s report of an in-service eye injury. Specifically, a February 2001 emergency care and treatment note indicates that the Veteran was training in a pit; “he got some object” into his left eye; he rubbed his left eye to remove the object; and when he returned to his barracks, he noticed a hemorrhage of the white part of his eye. Additionally, another STR notes that the Veteran complained of having a large red area in his left eye, and that he thought that a piece of metal may have hit his eye. See February 2001 Medical Record – Supplemental Data: Nursing Triage Note. Further, the Veteran’s separation examination documents a diagnosis of mild exotropia of the left eye. See February 2003 Report of Medical Examination for Separation from Service. However, the Veteran maintains that he sustained his in-service injury to his right eye, and not his left eye. The Veteran explained that his right eye is continuously red; he still has continuous problems with his eye; and that this is the eye that was mentioned in service, as a misalignment of the eye, but rather, STRs erroneously designated the eye injury as a left eye injury. Further, the Veteran explained that the left eye does not have a misalignment, but rather, that the right eye has the misalignment, which turns it outward. The Veteran further indicated that while the right eye, highly noticeable, turns outward (exotropia), the left eye is “perfectly fine and aligned straight.” Additionally, the Veteran explained that if he had been aware that they erroneously documented his injury as a left eye injury, while he was in the military, he would have corrected this; but he was not aware of this error until he separated from service, when he examined his records and noticed that the injury was documented as a left eye injury. See September 2015 Videoconference Hearing Transcript. Although the Veteran’s statements are consistent with earlier, prior, similar statements in his January 2010 Statement in Support of Claim and October 2011 Board Appeal for the right eye disability, these statements are contrary to other statements the Veteran made about his in-service eye injury. Particularly, for example, after the Veteran’s claim for a left eye disability was denied in April 2017, in a June 2017 notice of disagreement (NOD) to this rating decision, the Veteran stated that he enclosed documentation from 2001 “to support that, [he], in fact did sustain an injury during a practice combat session’, and that he submitted reports to support that since this injury occurred, he has incurred problems with his eye. While the only documentation of a 2001 eye injury that has been associated with the claims file pertains to his left eye, the Veteran was not suggesting that this 2001 documentation was in reference to his right eye, but rather, he used this 2001 documentation to support his claim for his left eye disability, in this June 2017 NOD to the April 2017 rating decision that denied his claim for service connection for his left eye disability. Additionally, the Board notes that in 2001, the Veteran was examined by a medical professional who ultimately removed a foreign body from the Veteran’s eye, and subsequently, the Veteran underwent a subsequent, objective examination, on separation from service, which consistently documented a left eye condition. Thus, while an error could have been possible, in the documentation of the initial injury from 2001, it seem that it is highly unlikely that a similar error would be noted in a subsequent, objective separation examination, undertaken by a different medical professional, two years later, making the same error regarding the specific extremity, after an objective examination, from which a finding or diagnosis would not be solely based on a subjective medical history of the Veteran’s eye disabilities. Thus, taking all these aforementioned factors into account, the Board does not find the Veteran’s assertions credible. Nonetheless, the Veteran was afforded VA examinations on numerous occasions to obtain medical findings and opinions to address the etiology of his bilateral eye disabilities. Although VA opinions on the etiology of the Veteran’s bilateral eye disabilities were rendered, the Board previously determined that these opinions were inadequate. In particular, the Veteran was afforded a VA eye examination in March 2017. Although the VA examiner, in pertinent part, opined that the Veteran’s bilateral dry eye was at least as likely as not incurred in the Veteran’s period of service from January 2001 to March 2003, the VA examiner failed to provide a specific rationale to support this opinion. Thus, the Board could not rely on this incomplete medical opinion to determine the claims. See June 2017 Board Remand. Subsequently, the Veteran was afforded another VA examination in June 2019, but again, in September 2019 remand, the Board determined that the medical opinion for this VA examination was inadequate for determining the claims because treatment records, as well as this June 2019 VA opinion, have indicated that the Veteran has bilateral dry eye syndrome, as well as documented reports that the Veteran has had a long history of complaints and irritation in both eyes; and yet, the VA examiner failed to render an etiological opinion on the Veteran’s dry eye syndrome, but rather, limited the scope of his etiological opinion to the in-service incident relating to “foreign body” in the Veteran’s left eye. Additionally, the Board reasoned that the VA examiner failed to render an etiological opinion for each of the Veteran’s eye-related diagnoses. Most recently, the Veteran underwent another VA examination in January 2020. At this VA examination, a VA examiner determined that the Veteran was diagnosed with bilateral dry eye syndrome; refractive error: compound hypertrophic astigmatism of the right eye; refractive error: simple hypertropia of the left eye; and bilateral eye seasonal ocular allergies. The VA examiner opined that for each of these above-mentioned eye disabilities, it is less likely than not (less than 50 percent probability), that these disabilities were incurred in or caused by an in-service event, disease, or injury, to include the in-service left-eye injury from February 2001. As the rationale for this opinion, the VA examiner explained that service records indicate that the Veteran had a minor superficial foreign body on the cornea of the left eye in 2001; and that the corneal foreign body was appropriately treated and totally resolved, without sequelae. The VA examiner further explained that there is no etiological basis upon which to conclude that there is an association between the left and right eye dry syndrome, left and right eye refractive error, and/or left and right seasonal allergies, and an in-service event, disease, or injury, including the left eye injury from February 2001. (Continued on the next page)   Then next, the VA examiner opined that it is less likely than not that the right and left eye dry syndrome were incurred in, or caused by an in-service event, disease, or injury, to include the left-eye injury from February 2001, because there is no etiological basis for the possible left eye foreign body causing a bilateral dry eye syndrome. Further, the VA examiner also opined that it is less likely than not that the right and left eye ocular allergy occurred in or was caused by an in-service event, disease, or injury, to include the left eye injury from February 2001, because there is no etiological basis for the possible left eye foreign body causing a bilateral ocular allergy. Given that the VA examiner has provided an adequate, clear rationale for each eye disability he identified in this opinion, the Board finds that it is adequate, and that this is a probative opinion, of record, on the etiology of the Veteran’s bilateral eye disabilities. The Veteran has not provided any other evidence, such as, for example, a contrary, positive medical opinion that is supported by an adequate rationale, to refute or counter this VA opinion. Thus, as there is no other evidence to show that the Veteran’s bilateral eye disabilities are causally related to his active service, the preponderance of the evidence is against these claims, and the benefit-of-the doubt rule, which the Board has considered, is not applicable under these circumstances. Therefore, the service connection claims for a right eye disability, and a left eye disability, must be denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Pratt, Vanessa-Nola 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.