Citation Nr: 21076657 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 14-37 712 DATE: December 27, 2021 ORDER Entitlement to service connection for bilateral eye ptosis, claimed as eye droop is granted. REMANDED Entitlement to a rating in excess of 10 percent for status post right knee arthroscopic surgery is remanded. FINDING OF FACT The Veteran's bilateral eye ptosis is related to her active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral eye ptosis, claimed as eye droop have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2001to September 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In April 2019, the RO issued a rating decision that increased the Veteran's migraine headache disability to 30 percent disabling effective from October 17, 2018. In July 2019, the Veteran testified at a Board hearing. The transcript of that hearing has been associated with the Veteran's claims file. In October 2019, the case returned to the Board. The Board dismissed the Veteran's claim for entitlement to service connection for bilateral hearing loss and a urinary tract infection. The Board also remanded the Veteran's claims because a compact disc was submitted by the Veteran and the records contained in the disc were not able to be uploaded into the Veteran's claims file. In February 2021, the Board granted entitlement to a rating of 50 percent, but not higher for the Veteran's migraine headaches. In addition, the Board remanded the Veteran's claims of entitlement to service connection for bilateral eye ptosis and entitlement to a rating in excess of 10 percent for a right knee disability in order for the Veteran to attend additional examinations. Entitlement to service connection for bilateral eye ptosis, claimed as eye droop The Veteran contends that her bilateral eye disability is related to her military service. In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. In addition, for secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). As to a current diagnosis, the Board notes that the Veteran's disability has been diagnosed as bilateral eye ptosis. As to the in-service incurrence, the Board notes that the Veteran's service treatment records show that bilateral eye ptosis was observed. As to the Veteran's lay statements, the Board notes that the Veteran reported that she experiences this eye disorder on a daily basis. In addition, the Board notes that the Veteran's spouse testified that he has observed the Veteran's eyes drooping. Lastly, the Board notes that the Veteran's friend submitted a letter to VA and reported that she observed the Veteran's eye drooping. Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination for this issue in June 2021. The Veteran reported at that time that "mainly the right eye will still be not as open first thing in the morning. It is always lower when she is fatigued or when she is suffering a migraine." The examiner also noted that the Veteran consistently complains of ptosis with fatigue or with headaches. Following the examination, the examiner stated that the Veteran's disability was less likely as not related to the Veteran's military service and as least as likely as not related to the Veteran's military service. The examiner stated that medical records from neurology, ophthalmology, and optometry consistently opine that the ptosis had improved and was not noted after 2010. The examiner stated that the Veteran, however, complained of ptosis being present when fatigued and during migraines consistently from 2009 through medical records dated 2012. The examiner then opined that it is my opinion that the diagnosed ptosis is at least as likely as not had its onset in service or is caused by or related at least in part to her active service. In September 2021, the examiner provided an addendum opinion and stated that ptosis was not present at the time of the June 2021 VA examination. The Board acknowledges that the VA examiner's analysis contains conflicting information, but the Board will not ignore the favorable medical opinion in support of the Veteran's claim. In sum, the Board finds that service connection is warranted for the Veteran's bilateral eye disorder, diagnosed as bilateral ptosis. After a review of the record, the Board finds that the evidence, both positive and negative as to the issue of service connection for a bilateral eye disorder is in equipoise. Based on the foregoing and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for the Veteran's bilateral eye disorder, diagnosed as bilateral ptosis. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for status post right knee arthroscopic surgery is remanded. In February 2021, the Board remanded the Veteran's claim and requested the VA examiner to provide a medical opinion regarding the lost range of motion that occurs during a flareup throughout the course of the appeal. In August 2021, the Veteran attended a VA examination for this issue. Following the examination, the examiner did not provide the requested range of motion estimates and simply stated that there was "loss of strength and decreased ROM. Pain with prolonged walking standing bending and lifting. Knee injury while serving, in the military underwent arthroscopic surgery in 2010." Accordingly, the Board finds this opinion is inadequate and it did not substantially comply with the Board's prior remand directives. Therefore, the Board finds that a remand is necessary in order for the Veteran to attend an additional VA examination. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from September 14, 2021, to the present. 2. Schedule the Veteran for a VA examination to determine the severity of her right knee disability. The examiner must address the severity, frequency, and duration of the Veteran's flare-ups. The examiner must identify the degree of functional loss that the Veteran has experienced during a flareup throughout the course of the appeal. The VA examination report must include a complete rationale for all opinions expressed. In providing all of the requested opinions, the examiner should consider the Veteran's competent lay claims regarding the observable symptoms he has experienced. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Rescan, 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.