Citation Nr: 21002430 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 10-11 236 DATE: January 13, 2021 ORDER Entitlement to service connection for an eye disorder is denied. REMANDED Entitlement to service connection for a bilateral shoulder disability is remanded. Entitlement to service connection for a bilateral elbow disability is remanded. Entitlement to service connection for a bilateral hand disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a bilateral ankle disability is remanded. FINDINGS OF FACT 1. The Veteran’s eye disorders did not have their onset during active duty and are not otherwise related to military service. 2. The Veteran’s congenital eye defects were not subject to a superimposed disease or injury during service. CONCLUSION OF LAW The criteria for entitlement to service connection for an eye disorder are not met. 38 U.S.C. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.9. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from November 1961 to March 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2010, the Board remanded the claims on appeal for additional development. The Veteran testified before the undersigned Veterans Law Judge in February 2016. The Board again remanded the claims further development in April 2016, September 2016, and May 2020. 1. Entitlement to service connection for an eye disorder is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an 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 disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A Veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Congenital or developmental defects including refractive error of the eye are not considered diseases or injuries for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. Here, the evidence of a current eye disorder is not in dispute, as the Veteran has been diagnosed with alternating exotropia, strabismic amblyopia, cataracts, and dry eye syndrome. See April 2016 VA examination report. Accordingly, the first element of service connection is met. However, the Board notes that VA examiners classified the Veteran’s alternating exotropia and strabismic amblyopia as congenital defects that existed prior to service, and the Veteran is not competent to assert otherwise. See April 2016 and April 2018 VA examination reports. Applicable regulations direct that congenital and developmental defects are not “diseases or injuries in the meaning of applicable legislation” and, thus, do not constitute disability for VA compensation purposes. C.F.R. §§ 3.303(c), 4.9. Given the congenital nature of alternating exotropia and strabismic amblyopia, the presumption of soundness does not apply and is automatically rebutted. Moreover, the competent evidence of record does not indicate that these conditions were aggravated during service by superimposed disease or injury. See Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (discussing VAOPGCPREC 82-90); Monroe v. Brown, 4 Vet. App. 513, 515 (1993); see also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). To the extent the Veteran reports that an in-service fall that was the basis for service connection for his back disability aggravated his strabismic amblyopia (see October 2009 lay statement), the Board finds his statement lacks credibility, as he has offered contradictory accounts to medical providers. Specifically, the Veteran denied any worsening of his congenital eye conditions during service and reported no injury affecting his eyes during his April 2016 VA eye examination. The Veteran also denied any eye residuals when examined for his service-connected back disability. See also 2003 VA examination (noting only back symptomatology in relation to an in-service fall); June 2008 VA examination (denying any visual dysfunction associated with his 1962 in-service fall); August 2009 and June 2011 VA spine examination reports. Thus, the Veteran’s report of an injury superimposed upon his congenital eye defects during service lacks credibility, and to the extent he has been diagnosed with congenital eye defects, service connection is not warranted for these disorders. Thus, the remainder of the Board’s discussion will focus on cataracts and dry eye syndrome. Turning to the second element, in-service incurrence of a disease or injury, service treatment records (STRs) show the Veteran’s report of eye trouble at enlistment as well as evidence of diminished visual acuity, described as not disabling. See September 1961 Report of Medical History and February 1962 Report of Medical Examination. Accordingly, element two is established. Regarding the last element, nexus, the only competent opinion of record is against the claim. Specifically, the September 2020 VA examiner opined that it was less likely than not that the Veteran’s cataracts and dry eye syndrome had their onset in service or were otherwise related to service. Rather, the examiner indicated that the conditions were likely age-related, noting that they were diagnosed decades after service. The Board affords this medical opinion great probative value, as the examiner considered the Veteran’s relevant medical history and provided sufficient rationale. Moreover, there is no competent opinion to the contrary. To the extent that the Veteran and his brother generally assert that his eye disorder is the result of his active duty service, the Board finds that they are not competent to do so, as the determination as to the etiology of an eye disorder is a complex medical question that is beyond the ken of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the preponderance of the evidence is against the claim of service connection for an eye disorder. As such, the benefit of the doubt doctrine is not for application, and the claim for entitlement to service connection must be denied. See 38 U.S.C. § 5107(b).   REASONS FOR REMAND 2. Entitlement to service connection for a bilateral shoulder disability is remanded. 3. Entitlement to service connection for a bilateral elbow disability is remanded. 4. Entitlement to service connection for a bilateral hand disability is remanded. 5. Entitlement to service connection for a bilateral knee disability is remanded. These claims were previously before the Board in May 2020, where they were remanded to obtain adequate VA opinions. Regarding direct service connection, following a thorough review of the pertinent evidence, the credibility of the Veteran’s statements regarding the onset of his disabilities have been called into question, as the contemporaneous evidence of record specifically contradicts his reports on direct service connection. For instance, the Veteran testified that he injured his back when he “fell back against a Greyhound bus desk,” whereas he previously stated that he slipped on snow and hit his back on the bus steps. The Veteran also testified that his orthopedic disabilities onset when he injured his back in service. However, the Board notes that his service treatment records are entirely negative for shoulder, elbow, hand, or knee symptoms, treatment, complaints or diagnoses; despite multiple complaints and treatment for a back condition during his 4.5 months of active duty service. To the extent that the Veteran and his brother’s lay statements indicate that he injured his shoulder, elbow, hand, and knee in service, such allegations are not credible based on the current evidentiary record. In order to find that silence in the record contradicts lay testimony, the Board “must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.” See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). Since the Veteran sought in-service treatment for a left ankle and back complaints, it is not unreasonable to conclude that he would have also sought treatment for a similar injury to the shoulder, elbow, hand, and knee, had such an injury occurred. Likewise, it is not unreasonable to assume that if the Veteran had any shoulder, elbow, hand, or knee abnormalities, the March 1962 Medical Board Proceedings would have documented such physical findings if they were present, especially since the Medical Board was convened to evaluate whether or not the Veteran was medically fit for military service. After consideration of all the evidence, the Medical Board determined that the Veteran had two conditions that rendered him medically unfit for service, namely recurrent lumbosacral strain and deafness. The lack of medical evidence of a shoulder, elbow, hand, knee, or ankle condition noted in the Medical Board Proceedings, which documented all medical conditions and physical defects and such a condition would have been recorded by medical personnel if existed, is persuasive evidence that the Veteran did not experience a shoulder, elbow, hand, or knee injury in service, and thus outweighs his and his brother’s present recollection to the contrary. Further bolstering the Board’s conclusion is the lack of any complaints pertaining to the shoulder, elbow, hand, or knee documented in Veteran’s treatment records until at least 4 decades after separation from service, including a diagnosis of arthritis. Therefore, the Board affords more probative value to the contemporaneous treatment records and finds the Veteran and his brother’s statements regarding as to an in-service onset of a shoulder, elbow, hand, and knee disability to be not credible. The Board recognizes that the credibility analysis above is a departure from the May 2020 remand, since it included a directive that the VA examiner should assume as true the Veteran’s lay assertions as to the onset of his disabilities and treatment of arthritis, as well as consideration of his brother’s lay reports, which amounted to a favorable credibility finding. Due process requires fair notice and an opportunity to respond when the Board purports to reverse prior assertions or impressions that evidence is credible or otherwise satisfactory to establish a fact necessary to the claim. See Smith v. Wilkie, 32 Vet. App. 332, 337-39 (2020); see also Thurber v. Brown, 5 Vet. App. 119, 123 (1993) (“[t]he entire thrust of the VA’s non-adversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process.”). The Board finds that this remand constitutes the notice required by caselaw, and the Veteran shall have an opportunity to respond upon remand, if he deems response is warranted. Regarding secondary service connection, pursuant to the May 2020 Board remand, the RO obtained a VA opinion addressing whether the Veteran’s claimed disabilities were secondary to his service-connected back disability. Following a review of the record, the September 2020 VA examiner issued a negative medical opinion, finding no objective evidence that the Veteran’s back disability caused or aggravated a shoulder, elbow, hand, and knee disability. The Board finds this opinion to be insufficient, as the examiner did not provide adequate rationale and simply noted that medical records and medical literature did not support a relationship but did not address the specific facts of the case. See Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018) (a medical opinion that relies on the absence of general medical literature supporting nexus without discussing the specific facts of the case is inadequate). Accordingly, the Board finds that remand is warranted for an addendum opinion that more fully addresses the Veteran’s circumstances and allegations secondary to his back disability. 6. Entitlement to service connection for a bilateral ankle disability is remanded. The September 2020 VA examiner found no current ankle disability, which is erroneous, as he was noted to chronic ankle swelling affecting the Veteran’s ability to stand or ambulate for prolonged periods. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Moreover, while the examiner attributed the Veteran’s symptoms to his nonservice-connected congestive heart failure, he did not address the possibility of direct service connection, including the Veteran’s in-service complaint of left ankle pain, requiring an addendum opinion on remand. The matters are REMANDED for the following action: Obtain an addendum opinion from a VA examiner other than the May 2016 and April 2018 examiners, preferably a physician, addressing the etiology of the Veteran’s shoulder, elbow, hand, ankle and knee disabilities. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. (1) Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed (1) bilateral shoulder strain, (2) bilateral elbow arthritis, (3) bilateral hand arthritis, and (4) bilateral knee arthritis: (a) are proximately due to his service-connected degenerative joint disease of the lumbosacral spine; or (b) have been aggravated (worsened beyond natural progression) by his service-connected degenerative joint disease of the lumbosacral spine. Please render separate opinions on questions (a) and (b) for each condition labelled (1)-(4). (2) Following a review of the claims file, the examiner should also opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed ankle disability (please note that the Board is conceding a current disability based on noted functional impairment from chronic edema) had its onset in service or is otherwise the result of service, to include as a result of the November 1961 complaint of left ankle pain therein. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a basis for reaching this conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.