Citation Nr: 21004247 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 12-13 219 DATE: January 26, 2021 ORDER Entitlement to service connection for conjunctivitis is denied. Entitlement to service connection for a left leg disability, including as due to coronary heart disease (CAD) is denied. FINDINGS OF FACT 1. The weight of the evidence of record is against a finding that the Veteran has currently diagnosed chronic conjunctivitis that had onset in active service or is otherwise related to active service. 2. The weight of the evidence of record is against a finding that the Veteran has a currently diagnosed left leg circulatory disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for conjunctivitis have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for a left leg disability, including as due to CAD have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This case has been remanded a number of times, most recently in 2019 for VA examinations. See 07/18/2019 BVA Decision. As discussed in further detail in the decision below, the Board finds substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Legal Requirements Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. 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). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Lanyo 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 to establish a diagnosis 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. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); see also 38 C.F.R. § 3.102. 1. Entitlement to service connection for conjunctivitis is denied. The Board notes that the Agency of Original Jurisdiction (AOJ) exerted all reasonable efforts to obtain any records related to this claim, including in compliance with the September 2016 Board remand. Hence, the Board finds that there was no pre-decisional duty to assist error. The Veteran contends that he had recurrent pink eye (conjunctivitis) infections intermittently, beginning in active service, and that he continued to have yearly infections after his separation from active service. He testified to that effect at the Board hearing, and that he was treated several times for the infection while in service. He testified that the frequency of the infections decreased after he stopped teaching. See 12/10/2015 Hearing Transcript, P. 6-10. The Veteran’s representative asserted at the hearing that there were 2 instances of conjunctivitis noted in the service treatment records (STRs), chronic conjunctivitis was noted in the Veteran’s outpatient records, and that the Veteran still had yearly infections. Id. However, aside from a notation of “eye trouble” in the report of medical history completed at separation in May 1979, the Board finds no support in either the STRs or the outpatient records for the representative’s assertions. Post-service clinical records reflect eyeglass requests, and examinations associated therewith, but do not show complaints or treatment for conjunctivitis. The VA examination (11/26/2019 C&P Exam, 2nd Entry) reflects that the examiner reviewed the claims file as part of the examination. The examiner noted the Veteran’s complaints of intermittent watery eyes, and that his eyes itched and were full of mucus. He also reported intermittent loss of all vision over the prior 15 years. Based on the objective findings on clinical examination, the examiner diagnosed diabetes without retinopathy; presbyopia; and, astigmatism. The examiner also noted that the Veteran has bilateral cataracts. His uncorrected distance vision was 20/100 in each eye, and 20/40 corrected. The examiner noted that conjunctivitis was not found on examination. Id. P. 12. The examiner opined that the Veteran had no physical signs or symptoms of chronic conjunctivitis on examination. The Veteran did, however, exhibit dry eye syndrome (keratoconjunctivitis) in both eyes, which is a normal age-related process. The examiner noted that he was hesitant to accept evaluations of conjunctivitis from nurses and general practitioners who, on average, have 1 week of training on the eyes. The examiner noted further that most of the outside referrals to him for conjunctivitis are diagnosed incorrectly. See 11/26/2019 C&P Exam, 3rd Entry. The Board finds that the VA eye examiner reviewed the claims file, examined the Veteran, and discussed the Veteran’s complaints and medical records in detail. Further, the examiner provided explanations for his findings. Hence, the Board finds the opinion highly probative and attaches significant weight to it. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiner’s findings are fully supported by the evidence of record. In addition to the Veteran’s hearing testimony, his wife submitted a statement to the effect that he had pink eye several times during his active service, and that she believed that it affected the Veteran’s vision. See 02/19/2016 Buddy/Lay. Certain conditions or disorders, such as varicose veins, are capable of recognition by a layperson. Others require medical training to recognize or diagnose. 38 C.F.R. § 3.159(a). The Board must determine on a case-by-case basis whether a particular condition can be recognized or diagnosed by a layperson. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F. 3d 1372, 1377. The Board does not make a blanket determination that a layperson is incapable of correctly recognizing conjunctivitis. Nonetheless, given the specific facts and evidence of this, the Veteran’s case, especially the eye examiner’s observation that even those with general medical training do not accurately recognize conjunctivitis, the Board finds that the preponderance of the evidence is against the accuracy of the lay evidence that the Veteran had in-service or post-service conjunctivitis. There simply is no evidence in the STRs that the Veteran was ever treated for conjunctivitis. He was noted to have defective vision upon his entry into active service and spectacles were prescribed. See 06/28/2014 STR-MED, 1st Entry, P. 20. A year later, in November 1976, it was noted that there was no change in his prescription. Id. P. 53. On his May 1979 Report of Medical History for his separation from active service, the Veteran indicated a history of eye trouble, which the examiner noted was a report of blurry vision since May 1977 due to prolonged reading, and that the Veteran had worn glasses for defective vision since December 1969. Id. P. 6, 115. The May 1979 Report of Medical Examination for Separation reflects that the Veteran’s eyes were assessed as normal; his uncorrected distance vision was noted as 20/400 in both eyes; and, that the defective vision in both eyes was corrected. See 06/28/2014 STR-MED, 2nd Entry, P. 1; 2nd Entry, P. 5 [the front and back of the 1975 and 1979 examination reports are not copied in sequence in the claims file]. There is no documented support for the Veteran’s claimed history of conjunctivitis. The records related to his claim for disability benefits administered by the Social Security Administration (SSA) only note complaints and findings of cataracts. The Veteran’s VA outpatient records note only his report a history of conjunctivitis when he was a teacher. See 05/14/2019 CAPRI, P. 329. VA eye examinations between 2014 and 2017 noted only cataracts on examination. There is no notation of conjunctivitis. Id. P. 53, 221, 329. A June 2016 report in fact notes clear conjunctiva. The Board also notes that at the hearing when the Veteran’s representative asked him if he recalled the timeframe that he was treated for conjunctivitis while in service, the Veteran’s answer was evasive. He responded that, “I used to work in the hospital at Wilford Hall Medical Center and so I was exposed to many different types of infection.” Hearing Transcript, P. 6. The Board finds that the Veteran’s answer was non-responsive, and it is not probative on the issue. The first requirement for service connection is a currently diagnosed disease or disorder. 38 C.F.R. § 3.303. The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of the claim, even though the disability resolves prior to the Secretary’s adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Based on the above, the Board finds that the preponderance of the evidence is against the Veteran’s claim for chronic conjunctivitis, as there was no currently diagnosed conjunctivitis at the time the Veteran’s claim was filed in July 2010 or at any time while it was pending. The Board notes the examiner’s finding of dry eye syndrome, and the fact that the examination report suggests that the condition may have been mistaken for conjunctivitis. Nonetheless, the examiner did not indicate that it had onset in active service, or that it is causally connected to active service. In fact, as noted earlier, the examiner opined that it is due to normal aging. The preponderance of the evidence supports the AOJ determination that before and during the Veteran’s service, his only eye condition was refractive error, which is a congenital disorder and is not subject to service connection. 38 C.F.R. § 3.303(c). Other than the aforementioned dry eye syndrome, the evidence of record shows that there was no in-service eye disorder that was superimposed on the refractive error. Hence, the Board is constrained to deny the claim. 38 C.F.R. § 3.303. Since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve. See Gilbert, 1 Vet. App. 49, 57-58; see also 38 C.F.R. § 3.102. 2. Entitlement to service connection for a left leg disability, including as due to CAD is denied. The Veteran claimed entitlement to service connection for left leg disorder that he never specifically identified except to report that he injured it in active service while playing football. See 07/17/2010 VA 21-4138; 08/21/2010 VA 21-4138. The STRs note treatment for a knee laceration while playing football but no other leg related finding. At separation he reported a history of leg cramps since childhood secondary to playing sports, and that they were treated with soaking and rubbing alcohol with good results. His lower extremities were assessed as normal at his separation from active service. See 06/28/2014 STR-MED, 1st Entry, P. 5; 2nd Entry, P. 1. At the Board hearing he testified that he had a history of left leg swelling, but he had not experienced any since his heart surgery. Hence, he believed that it was related to his CAD disability. Hearing Testimony, P. 14. Legal Requirements In addition to the general requirements for service connection set forth earlier, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability that is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Discussion Service connection is in effect for CAD. See 04/23/2020 Rating Decision – Narrative. Hence, Wallin Element 2 is shown by the evidence of record. Nonetheless, the Board finds that the preponderance of the evidence is against the presence of Wallin Elements 1 and 3. The Veteran’s outpatient records note his complaints in 2009 of swollen feet and edema, and both his wife and his daughter described his history of leg pain. See 12/16/2010 Medical Treatment Non-Government Facility, P. 17; 01/13/2011 Buddy/Lay 1st and 2nd Entries. A November 2010 VA outpatient entry noted positive pitting edema of the lower extremities, left greater than right but no recent swelling in January 2011. See 03/30/2012 CAPRI, P. 25, 14. An SSA examination report notes frequent leg swelling due to gout which had onset several years after active service. See 06/28/2014 SSA, 1st Entry, P. 57. The Board remanded for an examination. The VA examination report (12/07/2019 C&P Exam, 2nd Entry) reflects that clinical examination revealed no circulatory disorder of the left leg. Hence, the examiner opined that it was not at least as likely as not that the Veteran has a left leg circulatory disorder that is caused or worsened by his CAD disability. See 12/07/2019 C&P Exam, 3rd Entry. In the absence of a currently diagnosed left leg circulatory or vascular disorder, there is no disease or injury for which service connection to attach, either on a direct or secondary basis. Hence, the Board is constrained to find that the preponderance of the evidence is against the claim. 38 C.F.R. §§ 3.303, 3.310; see also McClain, 21 Vet. App. 319. The Board notes that there is a currently diagnosed left knee disability for which service connection has been granted. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.