Citation Nr: 21004647 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-39 363 DATE: January 27, 2021 ORDER Entitlement to service connection for a bilateral eye disability is denied. FINDINGS OF FACT 1. The record evidence shows that the Veteran served in combat in the Republic of Korea during the Korean Conflict. 2. The record evidence shows that the Veteran’s lay statements regarding an in-service bilateral eye injury while in combat are consistent with the facts and circumstances of his active service. 3. The record evidence shows that the Veteran’s bilateral eye disability is not related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral eye disability have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from September 1952 to June 1954, including in combat in the Republic of Korea. In March 2020, the Board remanded the currently appealed claim to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. The Board directed the AOJ to schedule the Veteran for examination to determine the current nature and etiology of his bilateral eye disability. This examination occurred in November 2020. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that, in response to a request from the AOJ for the Veteran’s complete service treatment records, the National Personnel Records Center in St. Louis, Missouri (“NPRC”), notified VA in September 2019 that these records had been destroyed in a July 1973 fire at this facility and were no longer available for review. In cases where the Veteran's service treatment records (or other relevant records) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA also must provide an explanation to the appellant regarding VA's inability to obtain his or her service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). Having reviewed the record evidence, the Board finds that it is reasonably certain that the Veteran’s service treatment records no longer exist and further efforts to obtain them would be futile. 1. Entitlement to service connection for a bilateral eye disability The Board finds that the preponderance of the evidence is against granting the Veteran’s claim of service connection for a bilateral eye disability. The Veteran essentially contends that his eyes were burned and injured by shrapnel during combat in Korea and he experienced continuous post-service bilateral eye disability. With respect to the Veteran’s assertion of an in-service bilateral eye injury while in combat, it is unfortunate this his service treatment records were destroyed in the July 1973 fire at the NPRC and are no longer available for review (as noted in the Introduction). Nevertheless, his DD Form 214 shows that he was awarded the Combat Infantryman Badge, the Korean Service Medal, and two Bronze Stars. This persuasively suggests that the Veteran had active combat service in the Republic of Korea during the Korean Conflict. Despite the absence of contemporaneous service treatment records, his lay statements regarding an in-service eye injury while in combat in Korea are consistent with the facts and circumstances of his active service. Thus, the Board finds that the Veteran may have incurred a bilateral eye disability while in combat in Korea. See 38 U.S.C. § 1154(b) (2012). Although the Veteran may have incurred a bilateral eye disability while in combat in Korea, the record evidence shows that the current bilateral eye disability is not related to active service. The Veteran’s post-service VA and private outpatient treatment records document ongoing complaints of and treatment for a bilateral eye disability in the decades following his service separation. For example, on VA outpatient treatment in April 2017, it was noted that the Veteran was being seen in follow-up for primary open angle glaucoma. His conjunctivitis had resolved. His visual acuity was 20/20-2 in the right eye and 20/40-2 in the left eye. The assessment included moderate to advanced glaucoma, left eye greater than right eye, pseudophakia in both eyes, and a longstanding macular scar in the left eye which limited visual acuity. On VA eye conditions Disability Benefits Questionnaire (DBQ) in November 2020, the Veteran’s complaints included trouble seeing. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran reported getting shrapnel in his left eye while in combat in Korea. His medical history included cataracts, glaucoma, branch retinal vein occlusion, and macular scar. He had bilateral cataract surgeries and bilateral glaucoma surgeries. The Veteran’s visual acuity was 20/70 corrected to 20/50 distance, 20/50 corrected to 20/40 near vision in the right eye, and 20/100 corrected to 20/70 near vision in the left eye. Physical examination showed pupils equal, round, and reactive to light and accommodation, no afferent pupillary defect, anatomical loss, light perception only, extremely poor vision, or blindness in either eye, bilateral filtering blebs present in bilateral conjunctivae, peripheral iridotomy in the bilateral irises, bilateral cataract extractions with posterior chambers in place in both eyes, an old branch retinal vein occlusion outside the macula area of the right eye, a macular scar in the left eye, bilateral glaucoma treated with mild steroid eye drops, and bilateral postoperative cataracts with replacement intraocular lenses (pseudophakia). The VA examiner opined that it was less likely than not that the Veteran’s bilateral eye disability is related to active service. The rationale for this opinion was based on a review of the claims file. The rationale also was, “The Veteran’s family has a strong family history for glaucoma. The Veteran’s glaucoma is bilateral and the Veteran’s war history stated he only got shrapnel in his left eye, but he does have bilateral glaucoma, so the probability is that this is hereditary glaucoma and not a traumatic glaucoma.” The rationale further was, “Bilateral pseudophakia occur because of aging and to improve his visual acuity. There is no record of a cataract occurring after his injury. The branch retinal vein occlusion is secondary to hypertension and atherosclerosis and not cause[d] by a shrapnel injury to his left eye.” The diagnoses were bilateral open angle glaucoma, bilateral pseudophakia, and a macular scar of the right eye. Contrary to the Veteran’s lay assertions, the record evidence shows that his current bilateral eye disability (diagnosed as bilateral open angle glaucoma, bilateral pseudophakia, and a macular scar of the right eye) is related to active service. The Board acknowledges again that the Veteran may have incurred a bilateral eye disability while in combat in Korea. It is undisputed that the Veteran has complained of and sought treatment for a variety of bilateral eye disabilities in the decades since his service separation. The November 2020 VA eye conditions DBQ examiner specifically opined that the Veteran’s current bilateral eye disability is not related to active service. This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). This opinion is afforded more probative weight than the Veteran’s opinion, since it was provided by a medical professional with expertise, while the Veteran is a layperson. The Veteran otherwise has not identified or submitted any equally probative evidence demonstrating his entitlement to service connection for a bilateral eye disability. In summary, the Board finds that service connection for a bilateral eye disability is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, 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.