Citation Nr: 21073532 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 18-09 408 DATE: December 9, 2021 ORDER Service connection for a bilateral eye disability, to include conjunctival papilloma (neoplasm) of the left eye, cataracts, and chronic conjunctivitis, is denied. REMANDED Service connection for a peripheral vestibular disability, to include otitis externa, left peripheral vestibular lesion, left vestibular hypofunction, and hypoactive labyrinth, unilateral, is remanded. FINDING OF FACT The Veteran's bilateral eye disability did not have onset during service, did not manifest to a compensable degree within the first post-service year; and, it is not otherwise related to disease or injury during service. CONCLUSION OF LAW The criteria for service connection for a bilateral eye disability, to include conjunctival papilloma (neoplasm) of the left eye, cataracts, and chronic conjunctivitis, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1952 to May 1955. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2011 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO confirmed and continued a previous denial of service connection for malignant neoplasm conjunctiva previously claimed as left eye condition and denied service connection for otitis externa. In December 2011, VA received the Veteran's Notice of Disagreement (NOD). In December 2016, the Board remanded the issues of service connection for otitis externa and whether new and material evidence had been received sufficient to reopen the previously denied claim of service connection for malignant neoplasm conjunctiva for issuance of a Statement of the Case (SOC). Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) (the failure to issue a Statement of the Case is a procedural defect requiring remand). In December 2017, the RO issued a SOC. In February 2018, VA received the Veteran's VA Form 9 appeal to the Board. In September 2019, the Board reopened the previously denied claim of service connection for malignant neoplasm conjunctiva previously claimed as left eye condition, expanded the claim to include any diagnosed eye disability, and remanded the case, including also the claim for service connection for otitis externa, for further development and adjudicative action. Initially, in an August 2021 rating decision, the RO granted service connection for gastritis, assigning an initial disability rating of 10 percent, effective March 3, 2011, and service connection for depressive disorder with depressive features; adjustment disorder with depressed mood, anxiety, and sleep issues, assigning an initial disability rating of 50 percent, effective March 3, 2011. As these constitute full grants of benefits sought on appeal, these issues are no longer in appellate status. Service Connection 1. Entitlement to service connection for a bilateral eye disability, to include conjunctival papilloma (neoplasm) of the left eye, cataracts, and conjunctivitis. The Veteran seeks service connection for a bilateral eye disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service-connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). The Veteran has current diagnoses of bilateral cataracts and refractive error. See March 2020 VA examination report. Several years prior to the claim on appeal, he was diagnosed with and treated for a conjunctival papilloma in his left eye. However, there is no indication that the Veteran has experienced any residuals from the papilloma following surgical removal in October 2006. See VA preoperative attending staff note dated October 6, 2006. At the outset, refractive errors are not considered diseases or injuries for VA purposes, and thus provide no basis for service connection. 38 C.F.R. §§ 3.303 (c), 4.9; Beno v. Principi, 3 Vet. App. 439, 441 (1992). In the absence of a superimposed disease or injury, service connection may not be allowed for refractive error of the eye even if visual acuity decreased in service, as it is not a disability within the meaning of applicable legislation relating to service connection. See id.; see also VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45,711 (1990). Service treatment records (STRs) indicate that the Veteran received treatment for "mild conjunctivitis" in January 1953. See STRs dated January 21, 1953. However, there is no indication of any further treatment for conjunctivitis, or any other eye treatment, during service. The Veteran's eyes, aside from abnormal vision, were normal at separation. A May 1982 VA treatment record provides the first evidence of post-service eye symptoms. Specifically, the Veteran reported symptoms including swollen eyes. He was diagnosed with an allergic reaction and was prescribed antihistamine medication. See VA medical certificate dated May 10, 1982. Furthermore, in July 1989, the Veteran received treatment for conjunctivitis. See VA treatment note dated July 26, 1989. However, there is no evidence that the Veteran has received treatment for conjunctivitis during the pendency of the claim. Following the September 2019 Board decision, the Veteran received a VA examination for his claimed eye disabilities in March 2020. The examiner provided a diagnosis of "bilateral senile cataract" in addition to a diagnosis of refractive error noted in January 2020 VA treatment records. In an opinion accompanying the examination, the examiner noted that "[n]o diagnosis of malignant neoplasm conjunctival was made today." Moreover, the examiner opined that the Veteran's bilateral cataracts were less likely than not related to service. First, regarding the January 1953 STR, the examiner noted that "[c]conjunctivitis is ... due to conjunctival infection and resolves with antibiotic drops with no major complications"; the examiner also noted that "[n]o conjunctivitis was diagnosed today either." Furthermore, the examiner stated that conjunctivitis "does not result in conditions such as cataracts" because "cataracts are age related and due to aging of the crystalline lens with opacification and causing eventual [reduction] in vision." Regarding the above opinion, the examiner considered the Veteran's STRs and post-service medical history and provided a thorough rationale in support of the clearly articulated opinion. Accordingly, the January 2020 VA opinion is afforded high probative value. Finally, although the Veteran may sincerely believe that he has a current diagnosis of conjunctival papilloma (neoplasm) of the left eye or, alternatively, that his current diagnosis of bilateral cataracts is related to service, his opinions in this regard are not competent. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 454 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay witnesses may, in some circumstances, competently opine on questions of diagnosis and etiology (such as the onset of an observable symptom such as varicose veins, for example). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, the question of diagnosis of a conjunctival papilloma or the etiology of the bilateral cataracts falls outside the realm of common knowledge of a lay person. The diseases involve complex internal processes as opposed to external processes capable of lay observation. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion on diagnosis or medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Therefore, his opinion lacks probative value. Although the Veteran would be competent to report symptoms of conjunctivitis, he has not done so at any time during the pendency of the claim. Based on the foregoing, the preponderance of the evidence shows that the Veteran does not have current diagnoses of conjunctival papilloma or conjunctivitis and that his diagnosed bilateral cataracts are not related to service. Finally, as noted above, the Veteran's diagnosed refractive error may not be subject to service connection without a superimposed disease or injury, which has not been asserted or demonstrated in this case. Given that the preponderance of the evidence weighs against the claim, the benefit of the doubt doctrine is inapplicable. Accordingly, service connection for a bilateral eye disability, to include conjunctival papilloma, bilateral cataracts, and conjunctivitis is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for a peripheral vestibular disability, to include otitis externa, left peripheral vestibular lesion, left vestibular hypofunction, and hypoactive labyrinth, unilateral. In the September 2019 Board decision, the Board instructed the RO to obtain a VA examination and opinion regarding whether the Veteran had a diagnosis of otitis externa, and whether it was at least as likely as not that the otitis externa had onset during service, is related to service, or alternatively, whether any diagnosed otitis externa was proximately due to or aggravated by the service-connected bilateral hearing loss disability and/or tinnitus. At the outset, given that the Veteran has received multiple diagnoses related to the inner ear during the pendency of the claim, the claim for otitis externa is expanded to include all peripheral vestibular disorders. As noted by the September 2019 Board decision, the Veteran is currently in receipt of service connection for a bilateral hearing loss disability and tinnitus. However, STRs provide no evidence of any ear symptoms during service. VA treatment records from June 2006 provide the first evidence of a diagnosis of otitis externa. In this regard, the Veteran experienced left ear pain after beginning use of hearing aids. He was diagnosed with "acute left ear otitis externa with apparent periarticular cellulitis." See VA ER nurse note dated June 27, 2006. Furthermore, VA treatment records during the pendency of the claim list otitis externa as an active problem. See VA pulmonary technician note dated March 5, 2015. Notably, during the pendency of the claim, the Veteran has also reported symptoms of dizziness, vertigo, and coordination problems. In August 2011, he was diagnosed with a left peripheral vestibular lesion. See VA audiological consult dated August 16, 2011. The Veteran's ear diagnoses also include a January 2012 diagnosis of "left vestibular hypofunction" and an April 2017 diagnosis of "hypoactive labyrinth, unilateral." See VA pulmonary technician note dated April 20, 2017; VA audiology note dated January 23, 2012. A July 2021 VA examination failed to reveal any peripheral vestibular diagnosis. During the examination, the Veteran denied ear pain or being treated for an ear infection in the past 12 months. Physical examination of the Veteran revealed no abnormalities. In an opinion accompanying the July 2021 examination report, the examiner stated that the "available records provided in [the] VA e-folder are silent for chronicity of care, complaints and/or treatment related to chronic otitis externa" and the "Veteran has not been diagnosed with an ear condition." However, the opinion failed to discuss the Veteran's June 2006 diagnosis of otitis externa as related to use of hearing aids for his service-connected bilateral hearing loss or indication in VA treatment records that the otitis externa continues to be an active problem. Furthermore, the opinion omitted consideration of the diagnoses during the pendency of the claim of left peripheral vestibular lesion, left vestibular hypofunction, and a hypoactive labyrinth, unilateral. The "current disability" required for service connection includes a disability at the time of filing or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In light of the above, remand for a VA examination and opinion that consider the Veteran's full medical history prior to and during the pendency of the claim is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination regarding the etiology of his claimed peripheral vestibular disability, to include otitis externa, left peripheral vestibular lesion, left vestibular hypofunction, and hypoactive labyrinth, unilateral. The claims file, including a copy of this Remand, must be made available to the examiner, and the examiner must indicate that the claims file was reviewed in the report. A complete rationale for all opinions must be provided. In remanding this matter, no finding is made, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The examiner should answer the following questions: (a.) During the pendency of the claim, which was filed in March 2011, as the Veteran had a diagnosis of otitis externa, left peripheral vestibular lesion, left vestibular hypofunction, hypoactive labyrinth, unilateral, or any other peripheral vestibular disability? (b.) If so, is it at least as likely as not (a 50 percent or greater probability) that any diagnosed peripheral vestibular disability is proximately due to the service-connected bilateral hearing loss disability and/or tinnitus? (c.) is it at least as likely as not (a 50 percent or greater probability) that any diagnosed peripheral vestibular disability is aggravated (worsened beyond its natural progression) by the service-connected bilateral hearing loss disability and/or tinnitus? (d.) If (b.) is answered in the negative, is any diagnosed peripheral vestibular disability otherwise related to service? In providing the requested opinion, the clinician should consider the Veteran's reported injury and symptoms in service and thereafter, including the nature of his reported injury and the onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Norah Patrick Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.