Citation Nr: 21000519 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-06 422A DATE: January 5, 2021 ORDER Service connection for a right eye disability, claimed as due to an in-service head injury, is denied. FINDING OF FACT The probative evidence of record is against a finding that the Veteran has a current right eye disability that had onset in or is otherwise related to service, to include as due to an in-service head injury. CONCLUSION OF LAW The criteria for entitlement to service connection for a right eye disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from October 1974 to December 1974. A Board hearing was held before the undersigned Veterans Law Judge in November 2018, and a transcript of the hearing is of record. This matter was previously remanded by the Board in July 2019, and again in January 2020 for additional development. The Board finds the agency of original jurisdiction (AOJ) has substantially complied with the Board’s remand directives, and the evidence of record is sufficient to proceed with a decision on the issue of entitlement to service connection for a right eye disability. REFERRED ISSUE In the July 2019 Board decision, the issue concerning entitlement to service connection for posttraumatic stress disorder (PTSD) was referred to the AOJ for adjudication in the first instance. See August 2014 VA Form 21-526EZ; see also December 2014 VA Form 21-0781. To date, it does not appear the AOJ has taken any action on the referred issue of entitlement to service connection for PTSD. Therefore, this issue is again referred to the AOJ for appropriate action. 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; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, the Veteran seeks entitlement to service connection for a right eye condition as due to head trauma in service. See August 2014 VA Form 21-526EZ. In reviewing service treatment records, the clinical evaluation of the Veteran’s eyes was normal upon entry to service, and his visual acuity for the right eye was 20/20. See October 1974 Report of Medical Examination. The December 1974 separation examination noted clinical evaluation of the Veteran’s eyes was abnormal. See December 1974 Report of Medical Examination. The provider noted the Veteran had decreased visual acuity in his right eye, and recommended an eye consult for further specialist examination. Service treatment records document that the Veteran was seen by the ophthalmology clinic in December 1974. The ophthalmologist noted the Veteran reported intermittent decreased and blurred vision following trauma to the right side of his head in November 1974. On examination, the ophthalmologist reported the Veteran’s right eye demonstrated normal vessels, macula, and lens. The ophthalmologist reported the Veteran had normal ocular history. On the date of his separation from service, the Veteran reported intermittent decreased and blurred vision in the right eye following trauma to the right side of his head in November 1974, as well as reports of what the Veteran described as nerve twitching behind the right eye. See December 1974 Statement of Medical Condition. Following the Veteran’s separation from service in December 1974, the medical evidence of record is silent for any reports related to a right eye condition until April 2014. In an April 2014 VA eye note, the provider reported the Veteran had a normal eye examination in January 2014. The provider reported the Veteran was hospitalized in November 2013 through February 2014 for necrotizing fasciitis of the left hip and thigh, and that the Veteran reported he began to notice eye pain and decreased vision in his right eye following his release from hospital. The provider indicated the Veteran reported he starting losing vision in February [2014], but did not see a doctor until April 2014, at which time he was referred to a private eye clinic. The provider indicated records from the private eye clinic noted a diagnosis of presumed bacterial or fungal endophthalmitis. The provider indicated an assessment of likely endogenous endophthalmitis of the right eye, now with total retinal detachment. In August 2014, the Veteran submitted a claim for entitlement to service connection for a right eye condition due to head trauma. See August 2014 VA Form 21-526EZ. In November 2014, the Veteran reported that he was struck from behind with a bivouac stick during basic training. See November 2014 VA Form 21-4138; see also November 2018 Board hearing transcript. The Veteran reported the hit to the right side of his head resulted in a great amount of pain, and that he had loss of vision in his right eye. The Veteran reported he experienced intermittent poor and blurred vision in his right eye since the assault in service, and that he was currently totally blind in the right eye. In July 2019, the Board remanded the Veteran’s claim for entitlement to service connection for a right eye disability to afford the Veteran a VA examination addressing the nature and etiology of any current right eye disability, and to afford the Veteran an opportunity to submit any medical evidence in support of his claim, to include the private eye clinic records referenced in the April 2014 VA eye note. In an August 2019 letter, VA requested the Veteran submit or authorize VA to obtain any private treatment records associated with his claimed right eye condition, to specifically include the private eye clinic records referenced in the April 2014 VA eye note. The Veteran did not submit any additional medical evidence, or respond to the August 2019 request to authorize VA to obtain any private treatment records. Additionally, pursuant to the Board remand, the Veteran was afforded a VA eye examination in October 2019. The examiner reported the Veteran had a current diagnosis of retinal detachment of the right eye. The examiner opined the Veteran’s current retinal detachment and blindness in the right eye was not related to service. The examiner reported the Veteran had a clean eye examination at the time of the trauma to the right side of his head in service, and that his current retinal detachment of the right eye occurred nearly 40 years after his separation from service. The examiner reported the Veteran’s current total loss of vision and no light perception in the right eye was due to retinal detachment and subsequent complications. In January 2020, the Board remanded the issue of entitlement to service connection for a right eye disability to afford the Veteran another VA examination, and to provide another opportunity to obtain any outstanding private treatment records pertaining to the Veteran’s claimed right eye condition. In a January 2020 letter, VA requested the Veteran submit or authorize VA to obtain any private treatment records associated with his claimed right eye condition. The Veteran did not submit any additional medical evidence, or respond to the January 2020 request to authorize VA to obtain any private treatment records. Pursuant to the January 2020 Board remand, the Veteran was afforded another VA examination in August 2020. The examiner reported the Veteran had a current diagnosis of pseudophakia of the right eye, and retinal detachment of the right eye. The examiner indicated the date of onset of the current right eye disability was 2014. The Veteran reported he was informed he had an eye infection in his right eye and needed immediate surgery following a recent hospitalization for necrotizing fasciitis of the left hip and thigh. The examiner opined the Veteran’s current right eye disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury. The examiner noted the Veteran was examined by an ophthalmologist in service due to his reports of blurred vision, and that the examination was normal and the Veteran had 20/20 vision in the right eye. The examiner explained that the current decreased vision in his right eye was likely secondary to endogenous endophthalmitis due to necrotizing fasciitis of the left hip and thigh in 2013/2014. Additionally, the examiner indicated the reported history of chronic retinal detachment was related to the delay in the Veteran’s right eye retinal repair for months after he had endophthalmitis due to necrotizing fasciitis. See May 2015 VA triage note. The Board has considered the Veteran’s competent report that he experienced intermittent decreased and blurred vision in his right eye since the assault in service. While the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible, such may be considered and weighed against a veteran’s lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). With respect to the Veteran’s assertions concerning continuity of symptoms of the right eye, the Board observes that the April 2014 VA eye note discussed above documents that the Veteran reported he began to notice eye pain and decreased vision in his right eye following his release from hospital in February 2014, and not during service. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether lay evidence is satisfactory, the Board may consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of a Veteran). Additionally, the VA provider in April 2014 noted that the Veteran had a normal eye examination in January 2014. Despite submitting claims for entitlement to VA compensation for other disabilities in August 2009, July 2011, and January 2014, the first evidence of record pertaining to a right eye condition following the Veteran’s separation from service was in April 2014. See April 2014 VA Form 21-0958 (Veteran reported he received VA treatment for a detached retina and eye infection in April 2014); see also April 2014 VA eye note. The Board finds such evidence weighs against the Veteran’s credibility concerning continuity of symptoms related to a right eye condition since service. A reasonable person would expect that had the Veteran experienced decreased vision and eye pain since his in-service injury, he would have filed for disability benefits for a right eye condition with his other disability claims at that time, or anytime thereafter in following decades. In considering the entire evidence of record, the probative evidence is against a finding that the Veteran’s current right eye disability was incurred in or otherwise related to service, to include as due to the in-service trauma to the right side of his head. In this regard, the Board assigns weight to the August 2020 medical opinion that the Veteran’s current right eye disability was less likely than not incurred in or caused by the claimed in-service injury, and is more likely secondary to endogenous endophthalmitis due to necrotizing fasciitis of the left hip and thigh in 2013/2014. The examiner considered the Veteran’s subjective report of continuity of symptoms related to his right eye during and after service, but noted that the ophthalmologist’s examination of the Veteran’s right eye in service following the reported head trauma was normal. Additionally, the August 2020 examiner’s negative nexus opinion is supported with a clinical explanation that is consistent with the other medical evidence of record. To date, the Veteran has not responded to VA’s request that the he submit or authorize VA to obtain any private treatment records associated with his claimed right eye condition. The Veteran has been afforded ample time and opportunity to submit medical evidence in support of his claim for entitlement to service connection for a right eye disability. However, there are no positive medical opinions of record. The preponderance of evidence is against a finding that the Veteran’s current right eye disability, diagnosed as pseudophakia and retinal detachment of the right eye, had onset in or is otherwise related to service, to include as due to head trauma in service. As such, the benefit of the doubt rule does not apply and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, 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.