Citation Nr: 21076007 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 20-13 456 DATE: December 22, 2021 ORDER Entitlement to service connection for fourth nerve palsy of the left (OS) eye is granted. REMANDED Entitlement to service connection for valvular heart disease is remanded Entitlement to service connection for a back disability is denied. Entitlement to service connection for a right shoulder disability is denied FINDING OF FACT Fourth nerve palsy of the left (OS) eye is attributable to service CONCLUSION OF LAW Fourth nerve palsy of the left (OS) eye was incurred in service. 38 U.S.C. §§ 1110, 1154(b); 38 C.F.R. §§ 3.303, 3.304(d). . REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to September 1972. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, air, or space service. 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, 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 evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Fourth nerve palsy of the left eye The Veteran contends in-service trauma during his service in Vietnam to the head caused nerve palsy of the 4th cranial OS. The Veteran reported having trouble with double vision following injury in service and also noted that he believed his eyesight would correct itself overtime but it never did. The Board denied the above claim in November 2020. In August 2021, pursuant to a Joint Motion to Remand (JMR), the United States Court of Appeals for Veterans Claims (CAVC or the Court) vacated that decision and returned the matter to the Board. The JMR states that the Board failed to determine whether 38 U.S.C. § 1154(b) applied to Veteran's eye disability. According to the Veteran, he was a missile maintenance officer and an electrical engineer. The Veteran's DD-214 indicates he received the Republic of Vietnam Campaign Medal with 60 device, among other distinctions, for his service and that he had Vietnam service from April 1970 to April 1971. In a July 2018 statement in support of his claim for a back and right shoulder disability, the Veteran reported that while serving in Da Nang that he was often under enemy rocket and mortar attack. He was exposed at the initiation of one such attack and dived headfirst into a bunker. He also stated that upon landing inside the bunker, his right arm was pushed back behind his shoulder and his back was bent. As for his eye disability, the Veteran stated that he suffered from head trauma due to the concussive forces of nearby explosions from incoming rockets and mortars. He noted after this incident, that one eye drops when he looked right, and he must keep his head tilted back or his eyes cross. Service personnel records, including a periodic performance review form from the period from July to August 1970, note that the Veteran served at two or more ammunition supply points (ASPs) providing combat support in the Southern I Corps Tactical Zone in South Vietnam, which included Da Nang. The Veteran is specifically listed as serving at Chu Lai, a military base in South Vietnam roughly 50 miles from Da Nang. His Battalion Commander also listed that his performance was under combat conditions during July to August 1970 and a performance review from August 1970 to February 1971 also listed service under combat conditions. The Veteran as also awarded a bronze star for the Republic of Vietnam theater for meritorious service in connection with ground operations against a hostile force. After review of the Veteran's statements and the personnel records, the Veteran established he engaged in combat with the enemy, as he was subject to enemy rocket and mortar attack. Further, it is accepted that he suffered injury to his head, as he has provided satisfactory lay evidence of service incurrence of such injury and it is consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. A private medical opinion from Dr. H. diagnosed the Veteran as experiencing nerve palsy that resulted in double vision. A private opinion from Dr. H. dated in June 2018 asserts that the Veteran was diagnosed with this disability approximately 40 years prior. Dr. H. related that he has been the Veteran's primary physician since his predecessor retired. The physician opined that the Veteran's nerve palsy is most likely the result of head trauma and that trauma occurred during his service in Vietnam. The opinion notes that a Dr. G. noted problems with the eye 40 years prior and identified that the Veteran had nerve palsy of the 4th cranial OS, likely caused by head trauma. Dr. H. noted review of the Veteran's statements of the incident in Vietnam, including that he suffered head trauma, the initial diagnosis by Dr. G. and his examination of the Veteran and knowledge of his history. Given there is no other opinion with regards to the matter and the opinion offers sufficient rationale, the claim is granted. REASONS FOR REMAND 1. Valvular heart disease In the prior Board decision, the Board denied the claim for service connection for valvular heart disease based on a VA examination report dated in January 2018, which found that it was less likely than not that the Veteran's valvular heart disease was related to his presumptive exposure to herbicides while serving in Vietnam. The examiner supported the opinion with the rationale that valvular heart disease is not presumed to be due to Agent Orange exposure nor was there any indication in the Veteran's record that he was ever treated for or had any complain of a heart disability while in-service. The JMR vacating the Board decision notes that the fact that valvular heart disease is not on the list of presumptive conditions related to herbicide exposure cannot form the basis of an opinion on direct service connection and the 2018 VA examination is inadequate and an opinion rendered in compliance with Politick v. Shinseki, 23 Vet. App. 48, 55 (2009), is necessary. Remand for an additional opinion is therefore warranted. 2. Back disability & 3. Right shoulder disability There has been no VA opinion regarding either a back or right shoulder disability. As noted above, the JMR states that the Board failed to determine whether 38 U.S.C. § 1154(b) applied to Veteran's claimed disabilities, namely of the back and right shoulder disability. The Board has accepted that it does apply to the eye and the same reasoning applies to the claimed back and right shoulder disabilities, as they appear to stem from the same alleged event. There is a private opinion for both disabilities from a Dr. M. dated in May 2018, noting treatment of the Veteran since 2009 to 2018, noting a back injury in service and that it was at least as likely as not that in-service injury is the direct result of military service. However, the rationale provided is that the Veteran has degenerative changes in his shoulder and back associated with age, but that war time activities could conceivably accelerate the process. In essence, the rationale does not support the offered medical opinion, pointing to an alternative cause (aging) and that the disabilities are conceivably related to service, which would seem to be a lower probability then at least as likely as not. Given the above, VA examinations with opinions for both disabilities are warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for valvular heart disease. The examiner is asked to provide a response to the following is valvular heart disease at least as likely as not related to service, including herbicide agent exposure in Vietnam. The examiner must be made aware that the fact that valvular heart disease is not on the list of presumptive disorders related to herbicide exposure cannot form the basis of an opinion on direct service connection. Provide a rationale to support all opinions provided. 2. Schedule the Veteran for VA examinations for back and right shoulder disability. The examiner is asked to provide a response to the following is a back or shoulder disability at least as likely as not related to service, including physical trauma in Vietnam, specifically diving into a foxhole or bunker to avoid enemy fire. The examiner must be made aware that that it is accepted that he suffered injury to his back and right shoulder in service, as the Veteran has provided satisfactory lay evidence of service incurrence of such injury and it is consistent with the circumstances, conditions, or hardships of such service. Provide a rationale to support all opinions provided. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Yoffe, 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.