Citation Nr: 21061414 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 09-45 147 DATE: October 4, 2021 ISSUES 1. Entitlement to service connection for scar tissue of the left eye. 2. Entitlement to service connection for residuals of a stroke, to include as due to service-connected diabetes mellitus, type II. 3. Entitlement to service connection for an eye disorder, to include as due to service-connected diabetes mellitus, type II. ORDER Entitlement to service connection for scar tissue of the left eye is denied. REMANDED Entitlement to service connection for residuals of a stroke, to include as due to service-connected diabetes mellitus, type II is remanded. Entitlement to service connection for an eye disorder, to include as due to service-connected diabetes mellitus, type II is remanded. FINDING OF FACT The Veteran's scar tissue of the left eye is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSION OF LAW The criteria for entitlement to service connection for scar tissue of the left eye have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from March 1964 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2009 and August 2011 rating decisions, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran's claim for entitlement to service connection for residuals of a stroke was denied in a July 2009 rating decision. The Veteran filed a timely Notice of Disagreement (NOD) that same month, and he was issued a statement of the case (SOC) in October 2009. The Veteran then filed a timely VA Form 9 in November 2009, appealing his claims to the Board. In a separate rating decision from August 2011, the Veteran's claims of entitlement to service connection for an eye disorder and service connection for scar tissue of the left eye were each denied. He filed a timely NOD in October 2011 and was issued an SOC in August 2014. He filed a timely VA Form 9 in September 2014 and requested a Board hearing. Each of the Veteran's claims were certified to the Board in February 2015. The Veteran then appeared before the undersigned Veterans Law Judge in a Travel Board hearing in July 2017 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. The Veteran's claims were then remanded by the Board in a Decision from November 2017. The claims were eventually returned to the Board in September 2019, whereby the Board found that substantial compliance with the Board's remand directives had been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In that September 2019 Board Decision, each of the claims were denied. The Veteran then appealed those denied claims to the United States Court of Appeals for Veterans Claims (The Court). In a November 2020 Joint Motion for Remand (JMR), The Court vacated the September 2019 Board Decision that denied entitlement to service connection for (1) residuals of a stroke, (2) scar tissue of the left eye, and (3) an eye disorder, and remanded those issues back to the Board for readjudication. Following the JMR, in August 2021, the Board remanded this matter for further development and adjudication. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall, Id. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to service connection for scar tissue of the left eye. The Veteran has claimed that his scar tissue of the left eye is due to his active-duty service. The Veteran's Representative has also submitted a statement in November 2014, indicating that the scar tissue of his left eye may be due to service. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Veteran's claim, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Turning to the criteria for entitlement to service connection, the Board notes that the Veteran's claims file includes a history of diagnosed scar tissue in his left eye. An October 2010 private treatment record indicates chorioretinal scars of the left eye. This was further reflected in an October 2013 disability benefits questionnaire, which again noted chorioretinal scars of the left eye. Therefore, the Veteran has met the first criteria for entitlement to service connection. 38 C.F.R. § 3.303. As per the second criteria, as indicated above, the Veteran testified during a Board hearing in July 2017. The Veteran testified that his scar tissue "has something to do with the side of the guns and that flashing." The Veteran stated that he was told in service that he had "scar tissue in [his] eye ... two scars. One up front and the other back." He further testified that he had "permanent, damage to that eye the rest of [his] life. There were no operations or nothing." The Veteran is competent to discuss the symptoms that he experiences, including that which he recalls from service. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Therefore, while the Veteran's service treatment records contain no evidence of complaints or injuries in service, the Board finds that the Veteran is entitled to the benefit of the doubt, and thus the second criteria has been met. 38 C.F.R. § 3.303. As noted above, the Veteran's claim was recently remanded by the Board in August 2021. The Board noted that a prior February 2019 VA examination had been deemed inadequate, and therefore, a subsequent VA examination was needed to provide an etiological opinion, and to consider the Veteran's lay statements and testimony. That VA examination was given in June 2021. The Veteran was seen in person, and the examiner conducted a review of the Veteran's claims file. The Board notes that the Veteran was reviewed by a VA examiner specializing in optometry. The examiner confirmed that the Veteran had a diagnosis of a chorioretinal scar of the left eye. They noted that it was found during "routine eye examination and not related to any injury event or illness." They noted the eye scar "to be longstanding." They then provided a negative etiological opinion that the Veteran's chorioretinal scar was less likely than not due to the Veteran's active-duty service. They further noted, considering the Veteran's testimony, that "the chorioretinal scar would less likely than not be caused by or a result of flashes from guns." They further rationalized that that the scar was not due to service, "since there is no evidence of blunt trauma." There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the Veteran's chorioretinal scar of the left eye is not due to his active-duty service. The Veteran has a current diagnosis, and he has arguably met the second criteria, as he testified as to his belief that the scar tissue was due to the flashes from guns. The Board found a prior VA examination from February 2019 inadequate, as the negative nexus it provided had not considered the Veteran's testimony. That deficiency was cured however by the June 2021 VA examination. That exam was conducted by an examiner who specialized in optometry, and the negative etiological opinion considered the Veteran's testimony involving the "flashes from guns." The Board has afforded this opinion significant probative weight, and the Board further notes that no positive medical opinions, private or otherwise, have been included within the Veteran's claims file. Thus, the Board finds that the Veteran's scar tissue of the left eye is not due to his active-duty service, and therefore he has not met the third and final criteria for entitlement to service connection. 38 C.F.R. § § 3.303(a). In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to service connection for residuals of a stroke, to include as due to service-connected diabetes mellitus, type II is remanded. The Veteran contends that the residuals of his previous stroke are due to service, or alternatively, have been aggravated by his service-connected diabetes mellitus. Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown 7 Vet. App. 439 (1995). To begin, in the Veteran's Notice of Disagreement from July 2009, he wrote that his stroke could have been a result of his diabetes, as "it is possible I had diabetes prior to my [formal] diagnosis." The Veteran's Representative wrote in a November 2014 statement that the Veteran's "diabetes may have a relationship to [the] later development of the stroke." As indicated above, the Veteran was given a Board hearing in July 2017. During the Board hearing, the Veteran testified that his doctor previously told him that he had a stroke "because the sugar went up." He then stated that, had his sugar level not increased, he may have not had the stroke. The Veteran further testified that he struggles with residuals from the June 2003 stroke, including that he "still [has] trouble remembering things ... [and that] every once in a while, I'll get a headache." The Veteran is competent to discuss the symptoms that he experiences. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Turning to the first criteria for entitlement to service connection, the Veteran was hospitalized for a stroke in June 2003. Additionally, June 2003 hospitalization records note a blood pressure reading of 193/112 and glucose level of 114 during hospitalization for the stroke. As indicated above, the Veteran has testified to having certain residuals of his previous stroke, including lapses in memory and occasional headaches. Affording the Veteran the benefit of the doubt, the Veteran has met the first criteria for entitlement to service connection. 38 C.F.R. § 3.303. The Board recognizes that the Veteran is currently service connected for diabetes mellitus, and therefore has met the second criteria for service connection on a secondary basis. 38 C.F.R. § 3.303, 3.310. As noted above, the Veteran's claim was previously before the Board in August 2021. In that Decision, the Board noted that a February 2019 VA examination was inadequate. The Board Decision cited the August 2020 Court JMR, which noted the February 2019 examination did not provide an adequate opinion for service connection on a secondary basis, and that it did not address an August 2009 doctors note on a prescription pad that rendered an "opinion that the transient global amnesia suffered in June 2003 was probably related to his diabetes." See August 11, 2009 Prescription Note from Dr. M.L. As such, the Veteran's claim was remanded for a VA examination. That VA examination occurred in June 2021. The Veteran was seen in person, and the VA examination reviewed the Veteran's claims file. The examiner noted a diagnosis of vascular disease, thrombosis, TIA or cerebral infarction from June 2003. The examiner described the Veteran's symptoms of becoming "more forgetful and irritable now." The examiner first opined that the Veteran's cerebrovascular accident (CVA) was not due to his active-duty service, but that it was at least as likely as not due to his service-connected diabetes. The examiner wrote that the Veteran has had a long-standing DM for which he requires insulin therapy as well as hypertension for which he is on multi-drug therapy. DM may lead to hypertension as well as CVD due to the effects of causing small vessel disease. As such, a positive etiological opinion was provided. The Board recognizes that previous VA examinations were deemed inadequate in part because they indicated that the Veteran's diabetes diagnosis occurred prior to his stroke, however medical records indicate that diabetes was officially diagnosed following the stroke. The RO informed the VA examiner of this, and the examiner submitted a subsequent VA addendum opinion in August 2021. The same examiner responded that "the record technically does not support any grounded evidence with the exception of what was reported within the record." They later noted that "the Veteran record does not have any conclusive evidence to establish causality and creates speculation." The Board notes that these remarks essentially did not render an opinion, just indicate that the record does not have "any grounded evidence." The RO again informed the VA examiner of the inadequacy of that response, and a subsequent response was given later in August 2021. The examiner wrote the following: Based on documentation and evidence in the medical records there is no conclusive evidence for a stroke, however, according to the documentation the Veteran was diagnosed with CVA. The differential diagnosis at the time was transient global amnesia vs. drug effect vs. CVA. At the time of admission, the Veteran was noted to possibly have transient global amnesia. Imaging by CT brain was unremarkable. Additionally, seizure vs. alcohol as well was entertained. This does not conclude a CVA. Taking into consideration the previous diagnosis, and based on documentation, it is this examiner's opinion that any stroke the Veteran may have had was mild, as there is a lack of residuals due to a stroke at this time. Based on evidence in the medical records and on exam, there is no conclusion as to the etiology of the Veteran's CNAS condition. No further opinions were requested by the RO. In consideration of the above, the Board finds the June 2021 examination and subsequent August 2021 addendum opinions inadequate. The Board finds that each exam renders a different conclusion, none of which are consistent, despite coming from the same examiner. The June 2021 provided a positive nexus opinion that the diabetes causes hypertension, which increases the chance for a CVA. The addendum opinion from August 2021 then notes that there is not enough available evidence to provide such an opinion, and that the record does not show causality without speculation. Finally, the most recent addendum opinion actually questions if there was a stroke in the first place, and if a stroke/CVA did take place it "was mild" as there were no residuals. This is despite that same examiner confirming residuals in June 2021, and the Board having already recognized that the Veteran has a current diagnosis. Regardless, adequate opinions based on possible aggravation by a service-connected disability have not been provided, and there is no indication that the August 2009 opinion was specifically considered, which was required. Thus, the provided opinions are inadequate. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. 2. Entitlement to service connection for an eye disorder, to include as due to service-connected diabetes mellitus, type II is remanded. The Board incorporates its discussion from the sections above by reference. The Veteran has argued that his claimed eye disability may be due to service. Alternatively, he claims that he has an eye disability which is causally due or was aggravated by to his service-connected diabetes mellitus. The Representative also submitted an informal hearing presentation in September 2019, in which the Representative described the issue as entitlement to service connection for retinitis. During the Veteran's July 2017 testimony, the Veteran testified that he is regularly checked for diabetic retinopathy. The Veteran also stated that his regular doctor has "said it's not too bad right now," indicating that he may not have a current diagnosis. The Veteran's Representative then stated that "my understanding is he doesn't have a current diagnosis for the retinitis." Having said that, the Veteran's claims file includes multiple diagnoses for eye disabilities. An October 2010 private treatment record notes an impression of cataracts in both eyes, diabetes without retinopathy, and presbyopia. An October 2013 disability benefits questionnaire noted diagnoses of idiopathic orbital inflammatory disease of both eyes, and posterior vitreous detachment. An April 2014 VA examiner confirmed a diagnosis of pseudophakia. As noted above, the Veteran's claim was previously before the Board in August 2021. In that Decision, the Board found that a February 2019 VA examination was inadequate. In brief, the examiner essentially denied that the Veteran had a present diagnosis, as opposed to providing a discussion of the previously-identified eye disabilities, which were noted during the period on appeal. Furthermore, while the examiner noted the Veteran's diagnosis of cataracts and eventual cataract surgery, they did not opine as to whether the cataracts were related to service or were aggravated by his service-connected diabetes mellitus, as directed in the November 2017 Board remand. Thus, the claim was remanded for an additional VA examination. That VA examination occurred in June 2021. The Veteran was seen in person, and his claims file was reviewed by a VA optometrist. The VA examiner only identified chorioretinal scar of the left eye, and pseudophakia of both eyes. No further diagnoses were listed, and the evidence addressing those previous diagnoses was not discussed. The examiner noted the Veteran's diagnosis of pseudophakia "due to having cataract surgery." They noted that the diagnosis of pseudophakia is instead just a diagnosis "having cataracts removed from the eye due to age." They also noted that, for this singular diagnosis, it was "not caused by or a result of the diabetes." No rationale was provided. The Board finds the June 2021 VA examination inadequate. As mentioned, the examiner was asked to specifically address the various eye disorders listed within the Veteran's claims file, however the June 2021 VA examiner makes no mention of diagnoses other than those listed from the February 2019 VA examination. Furthermore, the examiner was asked to provide an opinion that specifically addresses possible aggravation of any identified eye disability by the Veteran's service-connected diabetes. Only an opinion on proximate cause is given, and no rationale is provided. Thus, the Board finds the June 2021 VA examiner's opinion inadequate. As noted above, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The examiner is asked to review the Veteran's claims file and note any diagnosed eye disorders present during the entire period on appeal. The examiner is then requested to provide etiological opinions on proximate causation and aggravation for any listed diagnoses. An opinion on aggravation is required, as is a full rationale. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records not already of record relating to the claims. Then, with appropriate authorization from the Veteran, obtain and associate with the record any outstanding private treatment records relating to the claims. If VA is unable to obtain these records, the Veteran must be notified and all efforts to obtain the records must be documented and associated with the claims file. 2. Schedule the Veteran for a VA examination (or telehealth interview(s), review(s) of the record, etc., if an in-person examination(s) is not feasible) by an appropriate clinician to determine the nature and etiology of any stroke residuals. Any indicated studies or diagnostic tests should be performed, and all clinical findings must be reported in detail. After a review the Veteran's claims file, the examiner is asked to provide the following: (a.) Identify any stroke residuals present since October 2008. The examiner's attention is invited to the July 2017 hearing testimony indicating current residuals of memory loss and headaches. For any stroke residuals identified, opine as to: (b.) Whether any stroke residuals at least as likely as not (a probability of 50 percent or greater) began in or are otherwise related to the Veteran's active service. (c.) If not, the examiner must opine whether any stroke residuals are at least as likely as not (1) proximately due to service-connected diabetes mellitus, or (2) aggravated beyond their natural progression by service-connected diabetes mellitus. The examiner is reminded than an opinion on possible aggravation is required. Even if the examiner is unable to determine a baseline severity prior to the aggravation, the examiner is directed to the language of 38 C.F.R. § 3.310 (b) which indicates that the baseline can be measured by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The examiner's attention is invited to the following: the Veteran's July 2017 testimony that he was informed by Dr. M.L. that the stroke was caused by service-connected diabetes mellitus, non-service-connected hypertension, or a combination of both; the August 2009 Prescription pad note from Dr. M.L., opining that the Veteran's global amnesia was "probably related to his diabetes"; and a June 2003 hospitalization record noting a blood pressure reading of 193/112 and glucose level of 114 at the time of hospitalization for the stroke. 3. Schedule the Veteran for a VA examination (or telehealth interview(s), review(s) of the record, etc., if an in-person examination(s) is not feasible) by an appropriate clinician to determine the nature and etiology any identified eye disability. Any indicated studies or diagnostic tests should be performed, and all clinical findings must be reported in detail. After a review the Veteran's claims file, the examiner is asked to: (a.) Identify any eye disability present since October 2010. The examiner is reminded that even if a disability subsequently resolves during the appeal period, service connection may still be awarded if a disability is diagnosed at the time the claim was filed or during the pendency of the claim. The examiner's attention is invited to the following: an October 2010 private record noting cataracts of both eyes, chorioretinal scars of the left eye, and presbyopia; an October 2013 disability benefits questionnaire noting idiopathic orbital inflammatory disease of both eyes, chorioretinal scars of the left eye, and posterior vitreous detachment; and an April 2014 diagnosis of pseudophakia. If any of those listed eye disabilities were incorrect, or not diagnosable during the period on appeal, the examiner should note as such. Then, for any eye disability noted during the period on appeal, opine as to: (b.) Whether any eye disability at least as likely as not (a probability of 50 percent or greater) began in or is otherwise related to the Veteran's active service, to include, but not limited to, the flashes from guns. The examiner's attention is invited to the Veteran's July 2017 testimony that he noticed symptoms in service and was treated in 1966 for an eye disorder. (c.) If not, the examiner must opine whether any diagnosed eye disability is at least as likely as not (1) proximately due to service-connected diabetes mellitus, or (2) aggravated beyond its natural progression by service-connected diabetes mellitus. The examiner is reminded than an opinion on possible aggravation is required. The phrase "at least as likely as not" does not mean "within the realm of possibility," but rather that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. Any opinions offered should be accompanied by the underlying reasons for the conclusions. If the examiner is unable to offer the requested opinions, it is essential that the he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382, 392-93 (2011). 4. Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the Veteran's claims. If the requested benefit remains denied, the Veteran and his Representative should be provided with a Supplemental Statement of the Case and an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.