Citation Nr: 21063479 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 19-09 803 DATE: October 14, 2021 ORDER Entitlement to service connection for diabetes is denied. Entitlement to service connection for an eye disability, including glaucoma, is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for residuals of right shoulder surgery is denied. Entitlement to service connection for a post-operative scar on the right shoulder is denied. FINDINGS OF FACT 1. The Veteran did not receive a diagnosis of or treatment for diabetes, glaucoma, hypertension, or a torn rotator cuff at any time during his service or have these disabilities within a year of his separation from service. 2. The most probative (i.e., competent and credible) evidence is against finding that any of these claimed disabilities is related or attributable to his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for diabetes, an eye disability including glaucoma, hypertension, and/or for residuals of right shoulder surgery including a consequent scar. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from July 1972 to July 1995. He testified in support of these claims during a December 2020 "virtual" teleconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, certain chronic diseases including arthritis, diabetes mellitus, and hypertension will be presumed to have been incurred in service, absent an intervening ("intercurrent") cause, if they were shown as chronic in service or if they manifested to a compensable degree within a year following separation from service, or if they were noted in service (or within the presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for diabetes The Veteran's service treatment records (STRs) are unremarkable for diabetes, either in the way of relevant subjective complaint (e.g., pertinent symptom) or objective clinical finding including diagnosis, and where a urinalysis is noted, it is negative for sugar or albumin. In addition, his Reports of Medical History reflect that he denied sugar in his urine (see, e.g., 1984, 1989, and 1994). His military service ended in July 1995. Post-service records also are unremarkable for diabetes for more than a decade, and there is no probative evidence that the Veteran's current diabetes manifested to a compensable degree within a year of his separation from service. A January 1996 VA examination of his eyes notes that he "has no history of diabetes". March 2000 correspondence from Dr. B. Davies lists the Veteran's past medical history as including glaucoma, hypertension, stomach ulcers, osteoarthritis, and rheumatoid arthritis, but it is unremarkable for diabetes. It also lists his medications but does not list insulin or any other for management or treatment of diabetes. A January 2005 Medical History record associated with Social Security Administration (SSA) records affirms he did not circle "diabetes" as a then current problem, although circling 19 other conditions. An April 2006 private record (MCG Health System) does not have diabetes mellitus checked despite nothing other cardiac risk factors he then had. The Board finds, based on the record as a whole, that his diabetes did not onset during his service or within a year after his separation from service. Thus, the most probative evidence is against finding that service connection is warranted under the provisions of 38 C.F.R. §§ 3.307 and 3.309(a). Any contention as to inception of this disease during the Veteran's service or within a year after his service lacks credibility. Clinical records noting diabetes, instead, begin much more recently in 2013. A December 2013 record notes that he was to be scheduled for a diabetes education basic class. There is no probative evidence that the Veteran's diabetes, diagnosed more than a decade after his separation from service, is related or attributable to his service. Moreover, the evidence does not reflect that he served in Vietnam, Korea, or Thailand during a time and in an area wherein it would be presumed that he was exposed to an herbicide agent; thus, service connection on a presumptive basis is not warranted under 38 C.F.R. §§ 3.307 and 3.309(e). Finally, service connection is not warranted on a non-presumptive basis, either, because there is no probative opinion with adequate rationale and based on review of the pertinent records indicating it is as likely as not the Veteran's diabetes is due to his service or related to (caused or aggravated by) a service-connected disability to secondarily attribute it to his service. See 38 C.F.R. § 3.310. 2. Entitlement to service connection for bilateral eye disability, including glaucoma The Veteran testified during his hearing before this Board that glaucoma was diagnosed at the Walter Reed Army Hospital (now named Walter Reed National Military Medical Center), and that he received treatment/medication for it while in service. However, the Board finds, based on the record as a whole, that the Veteran is not credible as to initial diagnosis and treatment of this disease during his service. His statements are inconsistent with the contemporaneous evidence of record in the years of his service and shortly thereafter. In making this lack of credibility finding, the Board is not suggesting that he has any intent to deceive. Rather, he may be simply mistaken in his recollections due to the fallibility of human memory for events that occurred many years ago. The Board also finds that any clinical opinion based on such unsupported history lacks probative value. The mere fact that an examiner bases an opinion on a history that has been provided by the Veteran, rather than, as an example, additionally on independent review of the claims file, does not automatically invalidate the opinion because the Veteran could be providing a credible history. However, if it shown the history is not credible or that evidence, if considered (but that was not), would affect the examiner's conclusion, then the basis of the opinion is undermined, and it consequently has less probative value or weight. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006). The Veteran further contended that doctors told him that his glaucoma may be due to exposure to dust when he was overseas in Saudi Arabia. But the Board finds that this purported statement on etiology also lacks probative value. As the Court has explained, the "connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical evidence.'' Robinette v. Brown, 8 Vet. App. 69, 77 (1995). The Veteran's Reports of Medical History reflect that he reported eye trouble; however, this was noted to be refractive error. Refractive errors are not considered "diseases or injuries" within the meaning of applicable legislation. Further, his refractive error does not appear to have been subject to a superimposed disease or injury during his service to create any additional disability. Absent superimposed disease or injury, service connection may not be allowed for a congenital or developmental defect of the eyes, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. See Parker v. Derwinski, 1 Vet. App. 522 (1991); McNeely v. Principi, 3 Vet. App. 357, 364 (1992). Thus, in the absence of some event or trauma, a refractive error is a constitutional or development abnormality for which compensation benefits may not be authorized. 38 C.F.R. §§ 3.303(c), 4.9 (congenital or developmental defects, refractive error of the eye, personality disorders, and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation); see also VAOPGCPREC 82-90. Moreover, these records are grossly unremarkable for suggestion of glaucoma, and the Veteran did not report any eye medications on his Reports of Medical History. He retired from the military in July 1995. A January 1996 VA examination for the eyes reflects that the Veteran was a "primary open-angle glaucoma suspect because of a positive family history and a positive history of being African-American." A July 1996 record reflects that he has a family history of glaucoma in his mother. After testing, he was assessed as a "glaucoma suspect". A February 1997 record indicates he was seen for follow-up for "possible glaucoma" and notes a family history of glaucoma. In sum, the Veteran did not have glaucoma in service, even though he had known risk factors for glaucoma (i.e., he was glaucoma suspect) and had optical examinations; he did not have glaucoma until after his service, and it has been attributed to a family history of this disease (so genetic predisposition) and race, not instead to his military service. The examiners were aware of his risk factors and still did not initially diagnose glaucoma until after his separation from service. A December 3, 1999 record indicated the Veteran was still "glaucoma suspect". It was again noted that he had a family history of glaucoma, and that he was "in college [and] has trouble seeing the Board." December 17, 1999 correspondence from Columbia Eye Clinic reflects that he had a history of borderline glaucoma, a family history of glaucoma in his mother, and after examination a diagnosis of "early primary open angle glaucoma" for which he had been started on medication. An August 2000 private record (Columbia Eye Clinic, P.A.) shows he had been followed at that clinic since December 3, 1999 for open angle glaucoma. This December 1999 diagnosis would be more than four years after his separation from service, and with no indication the glaucoma was as likely as not due to his service. There is no probative clinical evidence indicating the Veteran's glaucoma, which initially manifested after his service, is as likely as not causally related to his service. There also is no probative evidence that he has any other eye disability that is as likely as not causally related to his service, including a chalazion or irritation noted in service. Thus, service connection is not warranted. 3. Entitlement to service connection for hypertension The Veteran's STRs are unremarkable for a diagnosis of hypertension meaning persistently elevated blood pressure. For VA compensation purposes, hypertension must be confirmed by readings taken two or more times on at least three different days, and means that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101. The Veteran's November 1984 Report of Medical History reflects that he denied high blood pressure. Over four years later, in March 1989, he again denied high blood pressure on a Report of Medical History for quadrennial purposes. His corresponding Report of Medical Examination indicates he had "borderline elevated sitting blood pressure" of 118/90; however, no diagnosis of hypertension was made and only the one reading was noted. Subsequent STRs reflect the following blood pressure readings: 142/94 (January 1990), 120/72 (August 1990), and 140/82 (September 1990). The Veteran's November 1994 Report of Medical History (which is also dated in March 1995) again reflects that he denied high or low blood pressure. His blood pressure on his retirement examination was 153/83. The summary of defects and diagnosis states "?HBP D/L", and the recommendation section states, "BP x 3". But, notably, three days of blood pressure readings in December 1995 were 129/79, 122/79, and 151/88. The Report of Medical Examination notes that he was qualified for retirement. In sum, the STRs indicate that, upon initial examination for retirement purposes, his blood pressure was elevated, but upon three days of testing, he did not have consistently elevated blood pressure; thus, the Board can reasonably find that he did not have hypertension in service because he did not have diastolic blood pressure predominantly 90 mm or greater, and he did not have systolic blood pressure predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, DC 7101, Note (1). Post-service, a January 1996 VA examination report for the Veteran's feet reflects he reported a history of hypertension, while a January 1996 VA examination report for "General Medical" purposes reflects that the Veteran has a "history of elevated blood pressure" for which he is not currently on any medications. Upon examination, his blood pressure was 132/70; no diagnosis of hypertension was made. A January 1996 VA examination for the eyes reflects that the Veteran has "no history of high blood pressure". A February 2000 private record (Davies Footcare) lists the Veteran's seven medications for a variety of complaints, but does not list a medication for hypertension. A March 2000 record reflects that the Veteran had been under the care of the Family Health Clinic for several disabilities to include hypertension. A May 2000 record reflects a blood pressure reading of 155/86 an assessment of hypertension (HTN). An August 2000 clinical record listing the Veteran's medications does not list blood pressure medication, whereas, another August 2000 record lists his blood pressure as 135/86. An October 2000 clinical record lists the Veteran's current medications, but does not list HCTZ or medication to treat hypertension. His blood pressure was noted to be 145/90 and an assessment of hypertension was made. A March 2001 record notes that the Veteran was on HCTZ. Thus, the record as a whole, reflects a diagnosis of hypertension in approximately 2000, more than four years after separation from service, and that he was started on medication by March 2001, over five years after separation from service. The Board acknowledges the Veteran's fluctuating blood pressure readings in service; however, to reiterate, hypertension means "persistently elevated" blood pressure and, notably, a subsequent reading in January 1996, without benefit of medication for hypertension, reflects a reading of 132/70, which is a much lower diastolic reading that the initial finding upon examination for retirement purposes, and much lower than the highest systolic finding on his three-day testing for retirement. The Board acknowledges the Veteran's contention that he was diagnosed with hypertension in service; however, the STRs are unremarkable for any clinical finding of hypertension, and he denied it in 1994 when preparing for retirement. There is no probative evidence the Veteran had hypertension to a compensable degree (meaning to at least 10-percent disabling) within one year of his July 1995 separation from service. To warrant a compensable rating, the diastolic pressure must be predominantly 100 or greater or the systolic pressure must be predominantly 160 or more, or the Veteran must have a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. See 38 C.F.R. § 4.104, DC 7101. The evidence, as noted above, is against such findings. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability, to include with consideration that he has a family history of hypertension in a parent and in siblings (see September 2004 record). The Board acknowledges that the Veteran had some elevated blood pressure readings in service, and that VA will presume that post-service diagnosis of hypertension is related to service if the hypertension manifested to a compensable degree within a year of separation; however, this was not the situation with this Veteran. Moreover, there is no probative opinion that his current hypertension, diagnosed several years after separation, is as likely as not causally related to service. 4. Entitlement to service connection for a right shoulder disability, claimed as residuals of surgery AND 5. Entitlement to service connection for a scar, post surgery for the right shoulder disability The Veteran contends that when he was a diplomatic courier at Dover Air Force Base, he reached to get down a container which weighed over 300 pounds. He reported that he "tore tissue" in his arm and back. His military personnel records reflect training at Dover Air Force base as a courier in 1988, and thereafter, he had service at Dover until November 1990. Thus, according to his timeline, he would have injured his shoulder in 1988, 1989, or 1990. The Veteran's STRs are unremarkable for shoulder complaints. His November 1984 and November 1994 Reports of Medical History reflect that he specifically denied a painful or trick shoulder. Notably, on his 1994 Report of Medical History for retirement purposes, he reported back pain in 1989, chest pains in 1991, a circumcision in 1977 or 1978, and foot surgery in 1973 or 1974. The Board finds it would have been reasonable for him to have reported a serious shoulder injury, or chronic shoulder complaints if he had them, as he was willing to report other complaints. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). And yet, he specifically denied complaints of a painful or trick shoulder. Thus, the Board finds that his contention as to a torn shoulder in service is less than credible. The Veteran testified that his shoulder problem "really started acting up" at Dover Air Force Base and then at Fort Jackson, where "he really started having problems" and had to go on a TENS unit and medication, and finally had surgery in 2015. The Veteran has essentially compressed together his active service treatment with his post-service treatment. The Board acknowledges that the Veteran was seen at Fort Jackson (Moncrief Army Community Hospital/Family Practice Clinic), to include shortly after separation from service; however, as a retiree of the military, he was eligible to be treated at a military facility even after service, which he did. Any statement as to being treated for a chronic shoulder complaint in service is less than credible. His recollection of when he was treated, and, importantly, for what reason, is less credible than the actual clinical records. The Board is not implying that the Veteran has an intent to deceive, but as noted above, he may be simply mistaken in his recollections due to the fallibility of human memory, especially as the Veteran continued to be treated at the same facility (or a military facility) after separation from service. Three weeks after separation from service, an August 1995 record reflects that the Veteran reported body, hand, and shoulder pain. He reported shoulder discomfort for 1.5 months. He was assessed with musculoskeletal pain, and recommended for a rheumatoid profile. An October 1995 record notes that he is taking some steroids for his shoulders. The Veteran was diagnosed with rheumatoid arthritis, and in January 1996, the RO granted service connection for rheumatoid arthritis. Almost four years later, a December 1999 record reflects that the Veteran had mild degenerative arthritis (a hypertrophic spur at the interior aspect of the humeral head). He reported a painful right shoulder for several years. An October 2000 record reflect that the Veteran plays golf, which the Board finds reasonably involves use of the shoulders. A May 2002 radiology record reflects that two frontal views of the right AC joints with and without weight bearing revealed normal AC joints with no fracture, degenerative change, or AC joint separation. November 2003 correspondence from the Gwinnett Clinic reflects that the Veteran has "a history of Rheumatoid Arthritis since 1995. It started in the hand and then spread to his back, knees, and then ankles. He is now having a problem in his shoulders." A December 2003 VA record found little evidence of RA on examination, but that he has some restriction in range and motion in his right shoulder that is "most likely of soft tissue inflammatory origin (rotator cuff tendinitis or subacromial bursitis[)]". A radiology report reflects that the internal and external rotation views of the right shoulder demonstrate normal findings and no evidence of erosion or soft tissue calcifications. A February 2005 VA examination for rheumatoid arthritis reflects that the Veteran reported that his complaints "consist of right shoulder pain" and other joint pain, that his joints become stiff with cold or rainy weather, and that he has swelling of the fingers. He reported that his painful joints have interfered with his recreational activities in that he used to play golf, but that has become quite painful to participate in. Upon examination of his right shoulder, he had some limitations of motion and pain at end of ranges. Right shoulder x-ray revealed mild degenerative change at the acromioclavicular joint and glenohumeral joint with a preserved acromiohumeral interval. The Board finds that if the Veteran had a tear in service and continued pain related to that tear, it reasonably would have been noted upon his several examinations in the decade after separation from service. The Veteran has reported that he had surgery on his shoulder in approximately 2015; however, there are no clinical records noting the surgery. VA clinical records indicate that the Veteran may have been seen by an outside provider (AU University) between October 2014 and December 2017, rather than treated at a VA facility. The Veteran submitted his claim of entitlement to service connection by filing a VA Form 21-526EZ. Under the framework for a fully developed claim (FDC), a claim is submitted in a "fully developed" status, limiting the need for further development of the claim by VA. When filing a fully developed claim, a Veteran submits all evidence relevant and pertinent to his or her claim other than STRs and treatment records from VA medical centers (VAMCs), which will be obtained by VA. The fully developed claim form included notice to the Veteran of what evidence is required to substantiate a claim for service connection and apprised him of his and VA's respective responsibilities in obtaining this necessary supporting evidence. The Veteran has been provided every opportunity to submit evidence and argument in support of his claim; however, he has failed to provide competent and credible evidence indicating an association between his service and a claimed surgery. His mere lay assertions, alone, are insufficient to warrant VA having him examined for medical opinions. See Waters v. Shinseki, 601 F.3d 1274, 1279 (Fed. Cir. 2010) (the Veteran's mere conclusory lay statement is insufficient to trigger VA's duty to assist by providing an examination for a medical opinion). The Veteran is competent to state that he had surgery. Assuming he is credible that the surgery was for a tear (and he has not provided clinical evidence to suggest otherwise), there is no clinical evidence of a tear in service, he is not competent or credible as to a tear in service, and there is no competent credible evidence that he had a surgery which is as likely as not due, even in part, to his service-connected rheumatoid arthritis, or his service. Thus, residuals of the surgery, to include a scar, do not warrant service connection. Conclusion for all claimed disabilities The Veteran's clinical records do not support his contentions, and there are no probative opinions (by competent clinicians, based on review of pertinent record, and with adequate rationale) that support his contentions. In the present situation, the Veteran had some symptoms of possible high blood pressure, shoulder pain, and possible glaucoma either in service or within a year after separation from service; however, importantly, despite evaluations, he was not diagnosed with hypertension or glaucoma (merely with the risk factors) within a year of service, and his initial shoulder pain was encompassed under his diagnosis of rheumatoid arthritis. With regard to diabetes, the evidence supports that it manifested many years after separation from service. There is no clinical opinion based on a review of pertinent clinical records and with adequate rationale that supports that it is as likely as not that the Veteran has a claimed condition due to his service. VA does not have a duty to obtain a clinical examination because there is no probative evidence indicating that the Appellant may have a disability related to his service. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of any of his claimed disabilities, to include as due to service. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board appreciates the Veteran's service of more than twenty years. However, for the reasons and bases noted above, service connection is not warranted. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.