Citation Nr: 21065501 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 19-15 390 DATE: October 26, 2021 ORDER Entitlement to service connection for a left eye disorder is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran did not sustain a superimposed disease or injury that caused additional myopia in the left eye while on active duty and left eye primary open angle glaucoma, incipient senile cataracts, contraction of visual field, dry eye syndrome, and photophobia were not present in service or until many years thereafter as well as left eye primary open angle glaucoma, incipient senile cataracts, contraction of visual field, dry eye syndrome, and photophobia are not related to service or to an incident of service origin. CONCLUSION OF LAW The criteria for service connection for a left eye disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.9. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from October 1973 to September 1980. In October 2019, a Veterans' Law Judge not the undersigned issued a Board of Veterans' Appeal (Board) that denied service connection for tinnitus and remanded the claim of service connection for a left eye disorder. As to tinnitus, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a December2020 order, the Court vacated and remanded rhe October 2019 Board decision to the extent that it denied service connection claim for tinnitus consistent with the parties' Joint Motion for Partial Remand (JMPR). In April 2021, the Board granted service connection for tinnitus and again remanded the claim of service connection for a left eye disorder. As to the left eye disorder, the Board finds that the post-Remand development substantially complied with the Remands because the VA opinion obtained in August 2021 is adequate to adjudicate the claim under all theories of entitlement and all identified and available medical records were obtained and associated with the claims file. See 38 U.S.C. § 5103A(b), (d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Service Connection Claim The Veteran claims that he has a left eye disorder due to his military service more than 40 years ago. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For purposes of entitlement to VA benefits, the law provides that refractive errors of the eyes are congenital or developmental defects and not a disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error 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. 38 C.F.R. §§ 3.303(c), 4.9. Therefore, VA regulations specifically prohibit service connection for refractive errors of the eyes unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). Myopia and presbyopia are refractive disorders. See Dorland's Illustrated Medical Dictionary (28th Ed. 1994) at 1094. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). i. Myopia As to the earlier Remands of the claim of service connection for a left eye disorder diagnosed as myopia, the Board notes that it remanded the issue in October 2019 and April 2021 to obtain a medical opinion as to whether the myopia diagnosed on the October 1973 entry examination was clear and unmistakably aggravated by the Veteran's military service. Upon further review of the record, the Board finds that these opinion requests were in error. The Board has reached this conclusion because, as stated above, myopia is not a "disability" for which service connection may be granted and therefore the laws and regulations governing pre-existing disabilities being aggravated by military service do not apply to the claim. See 38 C.F.R. §§ 3.303(c), 4.9. In any event, the remand provided evidence against this claim so the point is moot. Further, the Board will address any other eye problem below. As to the merits of the claim of service connection for a left eye disorder diagnosed as myopia, the Board finds that to the extent that the Veteran is claiming service connection on a direct basis for the myopia that appears in the record (see, e.g., service entry examination dated in October 1973; VA examination dated in July 2018) the claim is denied because he does not have a disability for which service connection may be granted. See 38 C.F.R. §§ 3.303(c), 4.9. As to any claim that service connection for myopia of the left eye is warranted because it is due to a superimposed disease or injury while on active duty, the Board notes that service treatment records, including the September 1980 separation examination, are negative for any complaints, diagnoses, or treatment for any left eye disease or injury even though they document a right eye injury. In fact, at the September 1980 separation examination, the eyes and pupils were normal this medical opinion is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Similarly, and more importantly, the Board notes that while the post-service record notes that the claimant continues to have left eye myopia (see, e.g., VA examination dated in July 2018), it is likewise negative for any evidence that the Veteran's left eye myopia was subject to a superimposed disease or injury while on active duty. Id. Given the above record which is negative for a superimposed left eye disease or injury while on active duty, the Board also finds that VA had no obligation to obtain a medical opinion as to this question. See Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that the criteria for obtaining an etiology opinion have not been met when the evidence of record does not establish that the veteran suffered an event, injury, or disease in service because no reasonable possibility exists that providing a medical examination or obtaining a medical opinion would substantiate the claim); Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement). Furthermore, the Board finds that the Veteran is not competent to provide the missing medical opinion because he does not have the required medical expertise to provide an answer to this complex medical question (i.e., did he have a superimposed disease or injury while on active duty that caused additional left eye myopia). See Davidson, supra. Given the fact that the in-service and the post-service record which is negative for any evidence of the claimant having had a superimposed eye disease or injury to the left eye while on active duty, the Board finds that the most probative evidence of record shows that the claimant did not sustain a superimposed disease or injury while on active duty that caused additional left eye myopia. See Owens, supra. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a left eye disorder, diagnosed as myopia, due to a superimposed disease or injury while on active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 4.9; VAOPGCPREC 82-90. ii. All Other Left Eye Disorders Initially, the Board notes that the record shows the Veteran's being diagnosed with primary open angle glaucoma, incipient senile cataracts, contraction of visual field, dry eye syndrome, and photophobia. See VA examination dated in July 2018. Likewise, the Board finds that the Veteran is competent to report on the events he experienced while on active duty as well as manifestations of his disabilities. See Davidson, supra. However, service treatment records, including the September 1980 separation examination, are negative for any complaints, diagnoses, or treatment for any other left eye disorder. See Colvin, supra. In fact, at the September 1980 separation examination the eyes and pupils were normal and these medical opinions are not contradicted by any other medical evidence of record. Id. Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty that caused his other left eye disorders. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In this regard, the Board finds that the detailed service record, which documents the Veteran's complaints, diagnoses, or treatment for a number of other problems weights against his current claim that he had problems with observable symptoms of other left eye disorder disorders while on active duty over 40 years ago. See Owens, supra. Overall, the Board must find the service records provide unusually highly probative evidence against the claim because they are very detailed, clearly indicating that the Veteran did not have other left eye disorders while on active duty. As to service connection for other left eye disorders based on the presumptions found at 38 C.F.R. § 3.309(a), the record does not show that any manifested in the first year following his separation from active duty. Therefore, the Board finds that the presumptions found at 38 C.F.R. § 3.309(a) do not help the Veteran establish service connection for the other left eye disorders. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307. Next, the Board will consider whether the Veteran is entitled to service connection for other left eye disorders due to continuity of symptomatology under 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(b). However, the post-service record does not show that the Veteran had a continued problem with his other left eye disorders in and since service over 40 years ago. See Owens, supra. In fact, as noted above, service treatment records, including the September 1980 separation examination, are negative for injuries, history, complaints, diagnoses, or treatment for the other left eye disorders; providing highly probative evidence against the claim. See Colvin, supra. In fact, as noted above, at the September 1980 separation examination it was opined that his eyes and pupils were normal. Id. Likewise, and as important, the post-service is negative for any complaints, diagnoses, or treatment for any of the other left eye disorders until, at the earliest, 2004 (i.e., almost 25 years after his 1980 separation from active duty). See, e.g., VA treatment records dated in July 2004 (diagnosed open angle glaucoma). In this regard, the Board also finds it significant that a March 2004 VA treatment record from the eye clinic, just a few months before the Veteran is diagnosed with his first left eye disorder (i.e., open angle glaucoma), it was opined that he did not have evidence of diabetic retinopathy, ocular hypertension, and open angle glaucoma; instead, the record showed that his only eye disorder at this time was myopia. Likewise, the Board finds it significant that at no time in any of his in-service or pre-2004 post-service medical record did the Veteran report having other left eye disorders while on active duty in the late-1970's/early-1980's and/or had continued other left eye disorders problems since active duty which ended over 40 years ago. In this regard, and as noted by Judge Toth in Davis v. McDonough, No. 20-3267 (September 22, 2021), the Board's duty as fact finder is to determine whether the evidence shows that the principal fact is true with a degree of certainty that satisfies the requisite standard of proof. See Holland v. U.S., 348 U.S. 121, 140 (1954); Also see Journal, 11 Nov. 1850, in 2 Journal of Henry D. Thoreau 94 (Bradford Torrey & Francis H. Allen eds., 1962). Given this record, the Board finds that the evidence in the form of the service medical records and the post-service medical evidence provides highly probative evidence, overall, against the claim which evidence the Board finds more probative than any claim by the Veteran that he had observable symptoms of other left eye disorders on active duty and since that time. See Owens, supra. In this case, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with other left eye disorders in and since service over 40 years ago. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(b). For the reasons noted above, the Board finds that the post-service medical records provide highly probative evidence against the claim. The service and post-service records in this case provide particularly negative evidence against the claim (both are highly detailed; clearly indicating problems that began years after service). The Board also finds that the preponderance of the evidence shows that the Veteran's other left eye disorders are not due to his military service. See 38 U.S.C. §§ 1110, 1131, 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In this regard, the July 2018 and August 2021 VA examiners opined, in substance, that the Veteran's other left eye disorders are not due to his military service. Moreover, the Board finds these opinions the most probative evidence of record for the following reasons: they considered the service treatment records and the post-servicer treatment records; they considered the appellant's competent and credible claims regarding observable symptoms; they did not rely solely on the lack of treatment in service; they were provided after a review of the record on appeal and an examination of the Veteran; they took into account all theories of entitlement; the opinions are supported by medical reasoning as well as controlling medical literature; and because they are not contradicted by any other medical evidence of record. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("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 the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."); Colvin, supra. The Board also finds that the Veteran is not competent to provide the missing nexus opinion because he does not have the required medical expertise to provide an answer to this complex medical question (i.e., what caused the current other left eye disorders). See Davidson, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's other left eye disorders are not due to his military service which ended over 40 years ago. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau, supra. In this regard, the key question in this case is not if the Veteran had a disease or injury while on active duty or if he currently has other left eye disorders. The key issue is whether any disease or injury the Veteran had during active duty more than 40 years ago was at least as likely as not (a 50 percent or greater chance) the cause of the current left eye problems. The fact that he may, or may not, have had other left eye disorders while on active duty does not always provide the basis to find that his current other left eye disorders are the result of that disease or injury from approximately 42 years ago. Sometimes, in some cases, the best evidence provides evidence against such claims. In this case, the Board finds that there is now significant evidence in this record, in both the service and post-service (and sometimes the Veteran's own statements), that provides highly probative evidence against the claim that clearly outweigh all evidence that supports the claim. See Owens, supra. It is vital for the Veteran to understand that the Board has taken his concerns seriously (it was the bases of the two Board's Remands and much work), however, there is now overwhelming medical and factual evidence against the claim from the VA examiners that the Board cannot ignore. The service and post-service treatment records, as noted above, also have been found by the Board to provide highly probative evidence against the claim, beyond the medical opinions in this case that also provide evidence against the claim. There is no basis to assume that yet another medical opinion in this case will provide a basis to grant the claim, in light of this record. With regard to any contention from the Veteran that he has had the problem for over 40 years, the Board must find that any such statement by the Veteran would be outweighed by the evidence of record. Therefore, the Board finds that the claim of service connection for other left eye disorders is also denied. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. In reaching the above conclusion, the Board has once again considered the doctrine of reasonable doubt. See 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.