Citation Nr: 21074472 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-33 689 DATE: December 15, 2021 ORDER Service connection for hemorrhaging residuals and retinal scarring, right eye is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's hemorrhaging residuals and retinal scarring of the right eye was caused by his in-service injury. CONCLUSION OF LAW The criteria for service connection for hemorrhaging residuals and retinal scarring, right eye are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from August 1954 to August 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO). The Veteran timely filed a notice of disagreement (NOD) in November 2017 and substantive appeal in June 2018. In April 2020, the Board remanded the claim for further development. In August 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is record. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In all cases, a Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). In other words, "[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The claims file contains the Veteran's January 1954 pre-induction report of medical examination, the May 1956 separation report of medical examination, and the May 1865 separation report of medical history. No other service treatment records have been associated with the claims file. A November 2016 record request for information reflects a response that the record is fire-related and there are no STRs. They specified that the type of information requested cannot be reconstructed. Destruction of service records creates a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005). Although the service treatment records have not been obtained, the Board finds that the duty to assist has been satisfied, and a remand is not warranted. VA has made reasonable efforts to obtain the missing treatment records; however, a response to records request specifically noted that the Veteran's STRs are fire related and they cannot be reconstructed. See 38 C.F.R. § 3.159 (c)(1). In these circumstances, the duty to assist does not require additional action on the part of VA. However, when a Veteran's service treatment records are unavailable through no fault of his own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). Entitlement to service connection for hemorrhaging residuals retinal scarring, right eye The Veteran contends that his retinal scarring of the right eye is due to an in-service fall. Service treatment records reflect that the January 1954 pre-induction report of medical examination indicates an abnormal clinical evaluation for identifying scars. The Veteran had a LS 0.5 inch scar on one side of the right eye. In the May 1956 separation report of medical history, the Veteran indicated that he had eye trouble. The contemporaneous separation report of medical examination notes a normal clinical evaluation for scars and eyes. The examiner noted myopia OU. Post-service, in his November 2017 NOD, the Veteran reported that when he was in basic training at Fort Dix, New Jersey, he was injured during one of the exercises on Bivouac. He stated that he was climbing the ropes when his hand slipped, and he fell on the nails below. He reported that he landed on his right side. A nail punctured his skull by his right temple. He reported that he was sent to sick call, but then sent back out to finish the ropes course. Throughout the years, he experienced some problems with this eye. His current symptoms were blurriness and pain. He reported that when he went to the VA in Rochester, New York Outpatient Clinic, the examiner took images and started asking him questions. He told him the story and the examiner encouraged him to make a claim with the VA. VA treatment records reflect that a September 2017 optometry clinic note reflects that the Veteran had a retinal old scar right eye caused by a drop from the second floor to ground level via electric wire in a construction site when he was seven years old. His vision was normal after the accident. In February 2018 correspondence from Dr. Goodfriend at OcuSight Eye Care Center, he reported that the Veteran explained that in the 1950s he fell on a nail during training. Dilated fundus examination with binocular indirect ophthalmoscopy showed a choroidal rupture superotemporally in the right eye with extensive subretinal fibrosis and subretinal hemorrhage. An ultrasound examination was performed. This showed an acoustic shadow in this area. Dr. Andrews explained that the Veteran had an injury to his right eye many years ago. The ultrasound examination showed an acoustic shadow. In March 2018 correspondence from Dr. Andrews at OcuSight Eye Care Center, he reported that the Veteran has a subretinal hemorrhage in his right eye due to a previous trauma and choroidal rupture. By history, this trauma occurred during his military service. Dr. Andrews reported that he reviewed the notes that indicate trauma in the right eye. The Veteran also had a CT scan in March 2018 which showed significant calcium along the right posterior lateral aspect of the globe, which is consistent with an old injury. The hemorrhage is a direct result of the previous damage from the trauma in the right eye. The imaging report found along the right posterolateral aspect of the right eye, there is a punctate focus of calcification, series 2 image 63. In December 2019 correspondence from Dr. Goodfriend, he reported that he began treating the Veteran in 2011 for cataracts. He noted that the Veteran has had a scar in the right eye since he met him. Per the Veteran, as well as the records, this scar occurred from a trauma 50 years prior during his military service. Subsequently, he has had hemorrhages in his right eye, directly related to this trauma, and he has needed treatment for those hemorrhages to prevent further vision loss. In February 2020 correspondence from Dr. Goodfriend, he reported that the Veteran had hemorrhaging from a retinal scar from trauma caused 50 years ago. He has needed periodic treatments to prevent the hemorrhage from causing worsening damage, but he does have some permanent retinal damage to begin with. In a February 2020 statement, the Veteran reported that during basic training at Fort Dix, New Jersey, he was climbing a rope. When he was approximately 15 feet above ground when he slipped and fell, landing on his right side. When he landed, he landed on a wooden board which had nails protruding out of them. The Veteran stated that when he landed, a nail punctured through the side of his right temple near his right eye. He was immediately sent to the medical clinic for treatment. He reported that they bandaged his right eye and returned him back to basic training with pain medicine and instructed him to follow up. He returned to the clinic and was informed that his eye seemed to have healed. He stated that since that injury, he continued to have vision problems in his right eye, to include blurriness and pain. He reported that it was not until 2016 when the vision in his eye became worse and he sought treatment. He was sent to an eye specialist. After various tests, they noticed an internal scar which was hemorrhaging, and surgery was recommended. Although he had surgery, his treatments are ongoing. During the August 2021 Board hearing, the Veteran testified that while he was in basic training, he was told that they had to swing up these ropes. He stated that he made it halfway and fell. He reported that there were boards with nails and one when into his right eye. He was sent to medical and they just looked at it an taped it up. He stated that he found out 50 years later that inside his eye, there was a scar. He now has pain and blurriness. He testified that the incident occurred in the middle of August 1954 during basic training. He testified that he did not have any other injuries to his eyes after he got out of service. Upon review of the evidence of record, service connection for retinal scarring, right eye is warranted. Initially, as noted above, the January 1954 pre-induction report of medical examination reflects that the Veteran had a LS 0.5 inch scar on one side of the right eye. The examiner does not specify whether this is on his retina or his skin; however, the abnormal clinical evaluation was noted under "identifying body marks, scars, tattoos" and a normal clinical evaluation was noted for the "eyes-general." Thus, it is reasonable to assume that this notation was referencing a visible scar on the Veteran's skin on one side of the right eye. Thus, as the scar was noted on entry into active service, the Veteran had a pre-existing disability. The evidence does not reflect that the scar was aggravated by service. Nevertheless, it is clear from a review from the record that the Veteran's claim is for his internal retinal injury. However, the presumption of soundness applies to the Veteran's right eye generally. As noted, the January 1954 pre-induction report of examination noted a normal clinical evaluation for the eye. As the Veteran did not have an eye injury noted on entry, the Veteran is presumed to be sound on entry as to his eye, generally. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The only medical opinions of record establish a nexus between the Veteran's retinal hemorrhaging from retinal scar due to his in-service fall. Moreover, the private physicians who provided these opinions explained the reasons for the opinions based on an accurate characterization of the evidence. Notably, the physicians explained that the punctate focus of calcification seen on radiology in March 2018 is consistent with an old injury. Additionally, the physicians who submitted their opinions specialized in comprehensive eye care and refractive surgery, and vitreo-retinal disorders. The opinions are therefore entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). To the extent that the opinion based on the service history provided by the Veteran, such reliance only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2006). As noted, the Veteran is not at fault for the lack of STRs that would have documented his in-service injury. However, he has remained consistent and credible in his statements regarding this injury. The VA treatment records from 2017 reflect that the Veteran's retinal old scar right eye caused by a drop from the second floor to ground level via electric wire in a construction site when he was seven years old. However, this was noted by an optometrist who was not examining the Veteran regarding his retinal scar. He noted this in "past ocular history." The physicians from OcuSight were the physicians who examined the Veteran when it came to his retinal scarring and hemorrhaging and provided adequate rationales based on their examinations and treatment of the Veteran. Based on the foregoing and resolving reasonable doubt in favor of the Veteran, the Board concludes that the Veteran has hemorrhaging residuals and retinal scarring, right eye. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Under these circumstances, the Board finds that service connection is warranted for hemorrhaging residuals and retinal scarring, right eye. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.