Citation Nr: 21074784 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-45 536 DATE: December 16, 2021 ORDER Entitlement to service connection for a bilateral eye condition is granted. REMANDED Entitlement to an initial disability rating in excess of 20 percent for residuals, labral tear of left shoulder is remanded. Entitlement to an initial compensable disability rating for left shoulder scars is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a neck condition is remanded. Entitlement to service connection for a back condition is remanded. FINDING OF FACT The Veteran's currently diagnosed bilateral lattice degeneration is related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral eye condition have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty during the Gulf War Era from June 2002 to August 2010. These matters are before the Board of Veterans' Appeals (Board) on appeal of a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in August 2021. A transcript of the hearing has been associated with the Veteran's electronic claims file. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board must assess the credibility and weight of all of the evidence to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. 1. Entitlement to service connection for a bilateral eye condition Turning to the evidence, the Veteran's service treatments records (STRs) show that the Veteran's eyes were normal at his entrance examination. At an August 2007 examination for flying status, the examiner noted a history of lattice degeneration. An August 2009 STR notes a provisional diagnosis of retinal break with localized detachment/fluid cuff. The examining optometrist noted the Veteran's history of peripheral lattice degeneration inferiorly bilaterally. The examiner noted a new finding of "inferior retinal hole vs. small tear with the appearance of a localized retinal detachment that is 1/2 dd in size." The examiner further noted that "the break is in the shape of an atrophic hole but on one edge is the existence of what appear to be a retinal flap that is seen with tears, this may also represent vitreal retinal interaction at this rim area of an atrophic hole." The examiner expressed concern that this area was at high risk for retinal detachment or tearing, as the Veteran's duties as an aviator exposed him to high G forces. The examiner indicated that treatment, if indicated, would reduce the Veteran's risk for future retinal tear or detachment. The Veteran was referred for an ophthalmology consultation. At a May 2010 consultation, an ophthalmologist noted high risk characteristics for probable retinal detachment as the Veteran underwent future vitreous degeneration. In June 2010, the Veteran was diagnosed with bilateral lattice degeneration and bilateral atrophic breaks and underwent examination and indirect ophthalmic laser surgery. At his discharge examination, the Veteran reported that his eye condition worsened somewhat after surgery. The examiner noted that the Veteran had an active waiver for lattice degeneration and retinal damage and was on duty not involving flying status post bilateral laser repair to lattice degeneration and atrophic retinal breaks. The Veteran was afforded a VA examination in November 2016. The examiner diagnosed the Veteran with bilateral lattice degeneration, status post heavy peripheral laser 360, bilaterally. The examiner noted that the Veteran has "heavy peripheral retinal scarring in both eyes as a result of a laser treatment." The examiner noted that laser surgery was recommended by a retinal specialist. The examiner opined that the Veteran's bilateral peripheral scarring is the direct result of the surgery he underwent in June 2010 while on active duty. The Veteran testified at a Board hearing in August 2021. The Veteran testified that his bilateral eye condition began during service. The Veteran testified to current symptoms of white spots, and that he was told he experiences this because he is getting a tear. The Veteran also testified to symptoms of light sensitivity, dryness, redness, and tired eyes. The Board finds that the November 2016 VA examination report is highly probative as to whether the Veteran's currently diagnosed eye condition began in service, as it reflects consideration of the pertinent evidence of record, including the Veteran's STRs and his reported history, and it provides clear conclusions with supporting rationale as to whether the Veteran's eye condition is related to the lattice degeneration diagnosed during active military service, which allows the Board to make an informed decision. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Therefore, the Board finds that the evidence supports that the Veteran's bilateral eye condition is related to military service. Thus, service connection for a bilateral eye condition is warranted. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 20 percent for residuals, labral tear of left shoulder is remanded. 2. Entitlement to an initial compensable disability rating for left shoulder scars is remanded. The Veteran contends that he is entitled to higher disability ratings for his service-connected left shoulder disabilities. See August 2021 Hearing Transcript. Specifically, the Veteran asserts that his residuals of labral tear of left shoulder has worsened since his last VA examination and that he is unable to lay on his left side, has difficulty with activities of daily living, experiences limitation of motion affecting his ability to reach above his head, and that his shoulder gives out and he experiences weakness. Id. The Veteran asserts that the scars on his left shoulder become red and irritated on a daily basis and that he experiences tightness with motion. Id. The Veteran further asserts that his physical therapist has worked with his scar to try and improve his mobility. Id. The Veteran states that he has received private physical therapy and chiropractic treatment from Hands on Therapeutics/Performance Rehabilitation, Agility Orthopedic, and Medical Alternatives. Id. The Board notes that the Veteran was last afforded a VA examination for compensation and pension purposes in November 2016. The VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). As the Veteran was last afforded a VA examination more than five years ago and there is evidence demonstrating that his disability may have worsened, a more contemporaneous examination is warranted in order to ensure that the record reflects the current severity of the Veteran's service-connected residuals of labral tear of left shoulder and left shoulder scar. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). Accordingly, a remand is necessary for a new VA examination to determine the current severity of his service-connected shoulder disability. 3. Entitlement to service connection for bilateral hearing loss The Veteran asserts that he was exposed to jet engine noise with insufficient hearing protection during active duty service, and that his hearing has worsened since his most recent VA examination. The Veteran was afforded a VA examination in November 2016. The Veteran was found to have normal hearing bilaterally. However, as there is evidence that the Veteran's hearing may have worsened since the 2016 VA examination, a new VA examination will be provided to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 4. Entitlement to service connection for a neck condition is remanded. 5. Entitlement to service connection for a back condition is remanded. The Veteran asserts that his back and neck conditions are related to his military service as a fighter pilot. See August 2021 Hearing Transcript. Specifically, the Veteran asserts that he flew three to eight times a week and that his spine was compressed due to G forces and gear that he was required to wear. Id. Alternatively, the Veteran asserts that his neck condition is secondary to his left shoulder disability. Id. The Veteran stated that he receives private chiropractic treatment from Medical Alternatives for his neck and back conditions, and that his treating doctors have told him that his back pain is the result of flying jets. Id. The Veteran asserts that he has back pain that results in functional limitations; that he has difficulty with walking, standing, sitting; that his back locks up when he stands up, and that he has a standing desk because he is unable to sit while working. The Veteran reports functional limitation due to neck pain and asserts that he is sometimes unable to turn his neck independently and has to turn his whole body. The Veteran was afforded VA examinations for his back and neck in November 2016. The examiner noted that there was no specific in-service injury identified by the Veteran, that the Veteran did not report current treatment for a back or neck condition, and that the Veteran was unsure of the onset of his symptoms, stating that onset may have been in mid-2007. The Veteran reported neck pain which worsens when he leans his head back. The examiner did not diagnose the Veteran with a back or neck condition. During the pendency of this appeal, the U.S. Court of Appeals for the Federal Circuit recently found that the term "disability" as used in 38 U.S.C. § 1110" refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018). Here, there have been complaints of back pain which cause functional loss, to include the inability to sit while working, and difficulty walking and standing, and limited mobility due to the Veteran's back locking up. The Veteran has also complained of neck pain which results in an inability to turn his neck. The Veteran also asserts that his neck condition is related to his left shoulder disability. In light of Saunders v. Wilkie, a remand is needed to schedule the Veteran for a physical examination as pain alone can serve as a functional impairment and therefore qualify as a disability. If such pain does result in functional impairment then it must be determined if such functional impairment is related to the Veteran's military service. The Veteran has also identified outstanding private treatment records in an October 2017 phone call and at the August 2021 Board hearing. A remand is required to allow VA to obtain authorization and request these records. The Veteran has also indicated that he received treatment for his back condition at VA. Any additional VA treatment records should be obtained on remand. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect. 2. Ask the Veteran to complete a VA Form 21-4142/ 4142a for relevant records from private medical providers, to include Hands on Therapeutics/Performance Rehabilitation, Agility Orthopedic, and Medical Alternatives. Make two requests for the authorized records from any identified provider, unless it is clear after the first request that a second request would be futile. 3. After the development above is completed, schedule a VA examination to determine the current severity of the Veteran's residuals, labral tear of left shoulder AND left shoulder scar. The Veteran should be interviewed, and all indicated tests and studies should be accomplished. All findings should be reported in detail. The Veteran's claims folder must be reviewed by the examiner. (a) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination should record the results of range of motion (1) on BOTH active and passive motion, (2) in weight-bearing and non-weight-bearing, AND (3) with the range of the opposite undamaged joint. If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. The examiner must note whether the Veteran demonstrates objective evidence of pain on motion and, if so, at what degree of motion he demonstrates such objective evidence (e.g., 0 to 90 degrees with pain at 80 degrees). (b) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups, if the Veteran is not currently experiencing a flare-up and if he reports that he does experience flare-ups, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] Please provide a complete medical rationale that includes a discussion of the facts of the Veteran's case and pertinent medical principles. 4. Schedule the Veteran for an audiological examination to determine the nature and etiology of the claimed bilateral hearing loss. The examiner must review the claims file. (a.) All indicated tests should be performed and all findings should be reported in detail. (b.) The examiner is asked to provide a response to the following: i. Is it at least as likely as not (i.e., 50 percent or greater probability) that any diagnosed hearing loss is etiologically related to service, to include exposure to noise such as jet engine noise? The examiner must address the Veteran's statements, including statements contained in the August 2021 hearing testimony. ii. If the examiner is unable to obtain valid audiological test results, they should provide an opinion on whether a hearing loss disability is present pursuant to 38 C.F.R. § 3.385. (c.) A complete rationale must be provided for all opinions offered and the Veteran's lay assertions regarding his medical history and current symptomatology must be considered and discussed. If an opinion cannot be offered without resort to mere speculation, the examiner must provide a full rationale as to why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 5. Schedule the Veteran for a VA examination for his claimed back condition. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. For each diagnosed disorder, the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the disorder is causally or etiologically due to service. If no such disorder is identified, the examiner must indicate whether the Veteran's reported back pain causes any functional impairment. If it is determined the Veteran's back pain causes functional impairment, please opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such functional impairment is etiologically related to the Veteran's active duty service. The examiner should specifically address the Veteran's report that his back condition is caused by spine compression resulting from G forces and gear that he was required to wear while flying three to eight times per week during active military service and that he has experienced symptoms over the years since that time. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The medical professional should discuss the particulars of this Veteran's medical history and the relevant medical science that applies to this case, including the use of any medical literature, which may reasonably explain the medical guidance in the study of this case. 6. Schedule the Veteran for a VA examination for his claimed neck condition. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. For each diagnosed disorder, the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the disorder is causally or etiologically due to service. If no such disorder is identified, the examiner must indicate whether the Veteran's reported neck pain causes any functional impairment. If it is determined the Veteran's neck pain causes functional impairment, please opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such functional impairment is etiologically related to the Veteran's active duty service. The examiner should specifically address the Veteran's report that his neck condition is caused by spine compression resulting from G forces and gear that he was required to wear while flying three to eight times per week during active military service and that he has experienced symptoms over the years since that time. The examiner shoulder also opine as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed disability or functional impairment was caused by and/or aggravated by the Veteran's service-connected residuals, labral tear of left shoulder. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The medical professional should discuss the particulars of this Veteran's medical history and the relevant medical science that applies to this case, including the use of any medical literature, which may reasonably explain the medical guidance in the study of this case. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Bynum, 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.