Citation Nr: 21004327 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-37 089 DATE: January 26, 2021 ORDER Entitlement to service connection for a vision disability is denied. Entitlement to service connection for gout is denied. FINDINGS OF FACT 1. The preponderance of evidence is against finding that the Veteran’s vision disability had its onset in service or is otherwise related to service. 2. The preponderance of evidence is against finding that the Veteran’s gout was incurred in service or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for vision disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for gout are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to October 1970 and from May 1975 to November 1991. He served honorably in the United States Navy during the Vietnam Era, Peacetime and the Gulf War Era. He was awarded the National Defense Service Medal, the Armed Forces Expeditionary Medal (Korea), the Vietnam Service Medal and the Vietnam Campaign Medal. The Board thanks the Veteran and his family for his service to our country. These matters are before the Board of Veteran’s Appeals (Board) from a June 2015 rating decision (RD) by the Department of Veteran Affairs (VA) Regional Office (RO), and have been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107. In August 2018, these matters were previously before the Board at which time they were remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the remand directives required the AOJ to: (1) obtain the Veteran’s VA treatment record from April 2013 to present for his eye/vision, (2) obtain a VA Form 21-4142 for UCSD Health System (UCSD) for all clinical records for gout from 1994 to 2005, (3) obtain an opinion for the Veteran’s gout and (4) obtain an opinion for the Veteran’s vision disability. Per the Board’s remand directives, the AOJ obtained VA treatment records from 2013 to present and made two supplemental development request for the Veteran’s UCSD records in March 2019 and April 2019. Additionally, the AOJ obtained VA medical opinions for eye conditions in May 2019 and for gout in June 2020. Thus, the Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 289 (1998) Service Connection – Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. Establishing direct service connection generally requires competent evidence of three elements: (1) a current disability, (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 U.S.C. §§ 1131, 1110; 38 C.F.R. § 3.303. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, and experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports and analyses. 38 C.F.R. § 3.159(a)(1). Medical opinions must contain conclusions with a reasoned medical explanation based on supporting data. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). When there is an approximate balance of positive and negative 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that the Veteran has recently asserted that he satisfies the requirements for Vietnam service under the provisions of the Blue Water Navy Vietnam Veterans Act of 2019. 116 P.L. 23, 133 Stat. 966 (2019). However, even assuming, arguendo, that the Veteran was exposed to herbicides in service, he has not specifically asserted, and the evidence does not indicate that either of his claimed conditions, which are not presumptive diseases under 38 C.F.R. § 3.309(e), are related to herbicide exposure. Accordingly, further development at this stage as to the specifics of any herbicide exposure would be futile. 1. Entitlement to service connection for a vision disability The Veteran contends that his vision disability is related to military service. He has described his vision disability as “[w]hen I looked at items closer or further, they are blurry.” He asserts that he started wearing glasses in the Navy; as a school instructor, he spent lots of time reading … and preparing the lessons; as an electronics instructor, he taught soldering, in which smoke got to his eyes even while wearing protective glasses; and he had constant close contact with the lights from computer monitors. See NOD received June 2015; VA Form 21-526 received March 2015. The Veteran’s diagnoses of eye disabilities to include retinal tear repair OD, cataracts OU, posterior vitreous detachment OU, pinqueculae OU, and dry eye syndrome OU were noted in a May 2019 VA examination report. Thus, a current disability exists. Shedden, 381 F.3d at 1163; 38 C.F.R. § 3.303; Also see C&P Exam received May 2019. The questions for the Board is whether the Veteran has an in-service incurrence or aggravation of a disease, injury or event and if so, whether a causal relationship or nexus exists between the Veteran’s current vision disability and his active military service. The Veteran’s service treatment records (STRs) show that in May 1979, he complained of redness in his right eye. In August 1981, he complained of itching and burning in his eyes and the provider’s impression was allergic conjunctivitis from an unknown foreign element. In the Veteran’s September 1991 report of medical examination (Report) for retirement, the clinical evaluation for the eyes-general, ophthalmoscopic, pupils, and ocular motility were marked “normal” by the provider. Also, in notes, the provider noted “P.H. OD 20/20” and in the summary of defects and diagnoses, the provider noted “20/200 OS … 20/20 NCD” See STR received May 2015. In a July 2015 letter from Dr. M.M., MD, the clinician acknowledged that the Veteran has been wearing glasses before he came to UCSD Health System (UCSD); while at UCSD, he had been examined at the S. Eye Center under the care of Dr. L.H., OD; and he is now with VAMC for his eye treatment. The clinician opined that the Veteran is now with the UCSD for his health examinations and is her patient. Further, the clinician opined that she has reviewed his records and it her expert opinion that the Veteran’s vision condition developed while he was in the military. See Medical Treatment Record received July 2015. VA treatment records show that in August 2015, during an eye examination, the Veteran reported no complaints and that he did not see floaters. In an April 2019 optometry note, the Veteran complained of “vision mildly blurry, OU, intermittent, with glasses, vision worse some days compared to others.” See Capri received May 2019. In a May 2019 Disability Benefits Questionnaire (DBQ) for eye conditions, the Veteran was diagnosed with retinal tear repair OD, cataracts OU, posterior vitreous detachment OU, pinqueculae OU, and dry eye syndrome OU. In the examination report, the Veteran reported floaters and mild blur OU. The examination report findings showed no functional impact on his ability to work. The examiner opined that the cataracts are causing mild reduction in best correct visual acuity 20/25 OD, OS at distance and mild visual field constriction. Also, the examiner opined that diagnoses of retinal tear with laser repair, pinqueculae, PVD and dry eye syndrome are not causing any visual disability. See C&P Exam received May 2019. In the May 2019 VA medical opinion report, the examiner concluded it was less likely than not (less than 50 percent probability) that the Veteran’s current vision disability was incurred in or caused by the claimed in-service injury, event or illness. For rationale, the examiner opined that the Veteran currently diagnosed disabilities (as stated above in the May DBQ) were diagnosed after military separation and the first evidence of the listed diagnoses were found in the medical evidence on April 29, 2013 at the SDVAMC Eye Clinic. The examiner opined that while the 2007 and 2009 S. Eye Center records could not be located by the examiner in VBMS, regardless, they occurred well past military separation in 1991. The examiner found after STR review that the STRs were silent for any vision/eye disability. See C&P Exam received May 2019. The Board has considered the conflicting medical opinions in this case. The Board finds that the May 2019 VA medical opinion is of great probative weight. In the May 2019 opinion, the clinician reviewed the Veteran’s claim-file; discussed the medical findings in the record to include VA treatment records, the Veteran’s STRs, and the private treatment records from UCSD and Dr. M.M., MD; provided a conclusive opinion; and offered clear reasoning explaining why the Veteran’s vision disability is not related to service. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Conversely, July 2015 medical opinion from Dr. M.M., MD did not identify a vision disability and did not provide a rationale for her conclusions. Thus, in this case, the July 2015 medical opinion is of limited probative value. Nieves- Rodriquez, 22 Vet. App. at 295. Thus, the May 2019 opinion carries more probative weight in this matter. Further, while the Veteran is competent to describe symptoms such as blurred vision, having eye floaters and wearing glasses. However, as a lay person without specialized medical training, his opinions as to the nature and cause or origin of his vision disability are not competent medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board finds that the Veteran’s current vision disability was not incurred or caused by, or otherwise related his active military service. Specifically, the Veteran’s STRs show that on his September 1991 report for retirement from service, the clinical evaluation of the eyes-general, ophthalmoscopic, pupils, and ocular motility were marked “normal” and his vision was noted as corrected to 20/20 by the provider. In a May 2019 VA medical opinion, the clinician noted that the first evidence of the Veteran’s current vision disability, diagnosed as diagnoses of retinal tear repair OD, cataracts OU, posterior vitreous detachment OU, pinqueculae OU, and/or dry eye syndrome OU was incurred in April 2013, which is 22 years post service. Also, based on his examination of the Veteran and review of his claim-file, the clinician concluded that the Veteran’s current vision disability is not related to service. Accordingly, service connection for the Veteran’s vision disability is not warranted. The Board acknowledges that a Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence (equipoise) on the merits. But, because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt rule is not applicable in this case. Therefore, this claim on appeal is denied. Gilbert, 1 Vet. App. at 49; 38 U.S.C. § 5107(b), 38 C.F.R. §§ 3.102, 4.3, 4.7. 2. Entitlement to service connection for gout The Veteran contends that his gout is related to military service. Specifically, he asserts that he had been experiencing the pain and redness on his feet; he had lots of stress while on active duty; and believes that is where his gout started. Also, he asserts that while in the service, he ate lots of meat, which is one cause of gout; drank coffee with lots of sugar especially during watch standing; and did not go to sick call in the early years for fear of being kicked out of the Navy and/or due to intimidation by others. See VA Form 9 received October 2015; VA Form 21-0958 received June 2015; VA Form 21-526 received March 2015. The record indicates that the Veteran had a diagnosis of gout in July 2015. Therefore, a current disability exists. Shedden, 381 F.3d at 1163; 38 C.F.R. § 3.303; Also see Medical Treatment Record received July 2015. The questions for the Board is whether the Veteran has an in-service incurrence or aggravation of a disease, injury or event and if so, whether a causal relationship or nexus exists between the Veteran’s current gout and his active military service. The Board concludes that the claim must be denied because the preponderance of the evidence is against finding that the Veteran’s gout was incurred during service, manifested to a compensable degree within one year of service, or is otherwise related to his active military service. The Veteran’s service treatment records (STRs) contain no indications of gout during his active duty military service. In the September 1970 report of medical examination (Report) for “RAD” and September 1991 Report for retirement, the clinical evaluation of the feet was marked “normal” by the providers. Also, in an August 1984 pathology report, the Veteran’s uric acid value was 7.6 mg/dL, in which the standard range at that time was (3.9-8.6 mg/dL). Additionally, the Board notes that a review of the Veteran’s STRs revealed that he sought care and treatment for a multitude of unrelated illnesses throughout the years such as hives, boils on the lower extremities, fever, sinusitis and rhinitis, staph infections, joint aches and knee problems. See STR (112 pages) received May 2015; STR (30 pages) received May 2015. Private treatment records (PTRs) show that in an August 2005 pathology report, the Veteran’s clinical history indicated left foot pain and swelling one time a year, possible gout; and possible uric acid crystals (fresh). In November 2011, VA treatment records reveal that the Veteran reported he has gout attacks two to three times per month. Further, in September 2015, the Veteran’s PTRs indicate that his uric acid test revealed a value of 8.8mg/dL (high), which was outside of the standard range (3.4-7.0mg/dL) at that time. See Capri received June 2020; Medical Treatment Record received June 2019; Medical Treatment Record received October 2015. In a July 2015 letter from Dr. M.M., MD, the clinician acknowledged that the Veteran was under her care for treatment of his gout. The clinician opined that his gout developed while he was in the military. For rationale, the clinician indicated that the Veteran reported that he had been experiencing gout pain and redness on his feet while on active duty and that he took over-the-counter medications to relieved his pain. Also, the clinician stated that gout can start from being asymptomatic, where the uric acid level in the blood starts to elevate, then it goes up to acute stage. Further, the clinician opined that gout does not come on suddenly, but slowly develops and worsens, usually over many years. See Medical Treatment Record received July 2015. In the June 2020 VA medical opinion report, the examiner concluded it was less likely than not (less than 50 percent probability) that the Veteran’s gout was incurred in or caused by the claimed in-service injury, event or illness. For rationale, the clinician opined that the July 7, 2015 letter from Dr. M.M. at UCSD contains a self-reported history by the Veteran who reported a history of “gout pain” and “redness on his feet” while he was in active duty; that he currently has a diagnosis of gout; and is on medication for gout. The clinician opined that upon review of the Veteran’s STRs, there are no documented “gout pain,” “redness on his feet,” or any documented symptoms that would be suggestive of gout in service and on his retirement examination dated September 16, 1991, he had check “no” to “foot trouble,” and there were no gout findings nor subjective complaints suggestive of gout documented. Also, the clinician opined that Dr. M.M. reports that the Veteran had been treated at UCSD since 1994, but that the earliest available medical records from UCSD are from 2003 when his uric acid blood level was normal. The first available medical record that suggests the presence of gout is from a pathology report dated August 31, 2005 – “crystals” from a “site not specified” was confirmed. Further, the clinician opined that the first elevated uric acid blood level was from August 24, 2005, which can suggest gout though the presence of an elevated uric acid blood level itself is not diagnostic of gout. The clinician opined that based on the information, there is no objective evidence to confirm or substantiate the presence of gout during military service from 1966 to 1970 or from 1975 to 1991. The physician found that a causal relationship between gout and military service was not demonstrated. See C&P Exam received June 2020. Additionally, in the June 2020 VA medical opinion report, the clinician opined that the Veteran’s reported subjective testimony of having “gout pain” and “redness on his feet while he was in active duty”… is not sufficient evidence to identify the presence of gout in service. Such symptoms are nonspecific and do not equate to a high pre-test probability of having gout. The clinician opined that although there can be months to years between gout flare-ups, the symptomatology that the Veteran is describing that occurred in the service is not highly probable for gout. Therefore, the examiner concluded that the Veteran’s gout was less likely than not related to service. See C&P Exam received June 2020. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board notes the conflicting medical opinions in this case and finds the June 2020 VA medical opinion to be more probative. In the June 2020 VA medical opinion, the clinician reviewed the Veteran’s claim-file; discussed and considered the medical findings in the record to include the Veteran’s STRs and private treatment records from Dr. M.M., MD and UCSD; provided a conclusive opinion; and offered clear and better rationale explaining why the Veteran’s gout is not related to service. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As to the July 2015 private medical opinion from Dr. M.M., MD, her opinion has diminished probative value because it relies in large part on the Veteran’s statements which the Board has deemed not credible. The Veteran’s statements regarding gout symptoms in or since service lack credibility as they are inconsistent with the normal foot findings on the Veteran’s service separation examination and the lack of foot treatment in the STRs and for many years after service. Treatment for the reported symptoms would be expected to be seen in this case as the STRs reflect treatment for many other symptoms, including hives, boils on the lower extremities, fever, sinusitis and rhinitis, staph infections, joint aches and knee problems. Nieves- Rodriquez, 22 Vet. App. at 295. Therefore, the Board finds the June 2020 VA medical opinion is more probative. Further, the Veteran is competent to describe his gout symptoms such as foot pain and swelling in service and post service. However, as a lay person without specialized medical training, his opinions as to the nature and/or cause or origin of his gout are not competent medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Additionally, the Board finds that the Veteran’s statements that he did not report his gout symptoms in service for fear of being kicked out of the Navy and/or due to intimidation by others lack credibility because the record shows that during his time in service, he sought and received medical treatment for a host of other unrelated illnesses. The Board finds that the preponderance of the evidence is against a finding that the Veteran’s gout is related to his military service. Also, VA and private treatment records show that the first clinical signs of gout was in 2005, which is at least 14 years post service. Further, in the June 2020 VA medical opinion, the clinician opined that there is no objective evidence to confirm or substantiate the presence of gout during military service and that the symptomatology that the Veteran is describing that occurred in the service is not highly probable for gout. Thus, entitlement of service connection for gout is not warranted. The Board acknowledges that a Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence (equipoise) on the merits. But, because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt rule is not applicable in this case. Therefore, this claim on appeal is denied. Gilbert, 1 Vet. App. at 49; 38 U.S.C. § 5107(b), 38 C.F.R. §§ 3.102, 4.3, 4.7. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. D. Hayes, 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.