Citation Nr: 21067087 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 11-05 506A DATE: November 3, 2021 ORDER Entitlement to service connection for a bilateral foot disorder is granted. Entitlement to service connection for an eye disorder claimed as blurred vision is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his current bilateral foot disorder is at least as likely as not related to the frostbite he incurred during service. 2. The Veteran's blurred vision did not begin during active service and is not otherwise related to his right eye injury during service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral foot disorder are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for an eye disorder claimed as blurred vision are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1981 to September 1985. These matters come before the Board of Veterans' Appeals (Board) from an October 2001 and October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018 and January 2018, the Board remanded these matters to the RO for further development. More specifically, the Board directed the RO to obtain an etiology opinion as to the claimed bilateral foot disorder and blurred vision and to obtain the Veteran's service treatment records. A March 2019 deferred rating decision indicates that the agency of original jurisdiction (AOJ) sent multiple requests to the United States Army Personnel Center to obtain the Veteran's service treatment records without a response. An April 2019 notice to the Veteran indicated that the Veteran's service personnel records were requested, could not be located and were unavailable for review. VA etiology opinions were obtained in January 2017. In April 2020, the RO issued a final supplemental statement of the case, again denying service connection for both claimed issues. The Board determines that there has been substantial compliance with its previous remands. These matters now return to the Board. The Board notes that the Veteran testified before a Veterans Law Judge at a June 2021 hearing as to the issues of entitlement to service connection for arthritis and scars. Those issues will be decided in a forthcoming Board decision. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a bilateral foot disorder is granted. The Veteran contends that his bilateral foot disorder is related to the frostbite he incurred on his feet while in service. See March 2017 Statement in Support of Claim. The majority of the Veteran's service treatment records were found to be unavailable in a March 2019 Deferred Rating and a July 1987 Deferred Rating. The Veteran was notified of this unavailability in an April 2019 letter. Given the missing service treatment records, VA has a heightened duty to assist the Veteran in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Cuevas v. Principi, 3 Vet. App. 542 (1992). This heightened duty includes providing a medical examination if review of the evidence of record determines that such examination is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). A December 1985 private treatment note lists a past medical history of being frostbitten while in New Zealand during training, which resulted in pain between three to four toes and calluses. The Board notes that this treatment note occurred about four months following service discharge and the medical history reported by the Veteran is highly credible as it was provided for the purposes of treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purposes of treatment); see also Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care). The Veteran was afforded a VA examination in January 2017. The examiner diagnosed the Veteran with degenerative arthritis in his feet and opined that it is as least as likely as not that the arthritis began as a result of the cold injury. The examiner explained that cold injuries damage joints and lead to advanced degeneration, nerve damage, and chronic pain and that the Veteran's arthritis required surgical repair and titanium prothesis in both feet. In sum, based on the evidence of record, the Board finds that the evidence presently before it is sufficient to grant the appeal, as the Veteran has been diagnosed with a bilateral foot disorder, and the evidence is at least evenly balanced as to whether the Veteran's bilateral foot disorder is the result of an in-service cold injury. Although the January 2017 VA opinion contain only a brief rationale, the Board notes that it is prohibited from developing additional evidence for the purpose of obtaining evidence against a claimant's case. See Mariano v. Principi, 17 Vet. App. 305 (2003). There is no contrary opinion of record. Thus, in reaching the foregoing determinations, the Board has applied the benefit of the doubt doctrine and resolved all doubt in the Veteran's favor. The Board finds that entitlement to service connection for bilateral foot disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.10; Gilbert v. Derwinski, supra. 2. Entitlement to service connection for an eye disorder claimed as blurred vision is denied. The Veteran contends that his blurred vision is related to when he injured his right eye in service. Specifically, he contends that he ran into a tree branch on the day Grenada was invaded and that the area around his right eye that was injured was stitched up. See March 2017 Statement in Support of Claim. As discussed above, the majority of the Veteran's service treatment records could not be retrieved. In as much, the earliest note in the evidence of record of an eye condition is in May 2000, years after separation of service, when he was referred to the eye clinic. In addition, the Veteran was afforded a VA examination in January 2017. The examiner diagnosed the Veteran with early cataracts and opined that the Veteran's cataracts are not caused by his time in service or as a result of his injury in service. The examiner reasoned that the minimal nuclear sclerotic changes in the lens are completely age-related and naturally progressing, that the Veteran's dry eyes are also not caused but the Veteran's time in service nor is a result of his injury in service and that dry eyes is a naturally occurring condition that is not related to the Veteran's injury or time in the service. The January 2017 VA examiner considered all evidence of record after thorough review of the claims file, including lay statements properly weighed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis the Board can consider and weight against contrary opinion"). Furthermore, the medical examination report contained clear conclusions with supporting data and a thorough rationale. See Nieves-Rodriguez v. Peake, supra. Therefore, the medical opinion is of great probative value. There is no contrary opinion of record. The Board acknowledges the statements of the Veteran as to the existence and etiology of his claimed eye disorder and acknowledges that the Veteran is competent to give evidence about what he experienced. However, while the Veteran is competent to report his current symptoms, as a lay person he does not have the education, training, or experience to diagnose or opine as to the etiology of the condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377-78 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, the Veteran's statements are of low probative value. (Continued on the next page) Thus, the Board concludes that the preponderance of the evidence is against finding that the Veteran meets the criteria for service connection for an eye disorder. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, 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.