Citation Nr: A21019840 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 200521-86633 DATE: December 14, 2021 ORDER Service connection for a left foot disability, to include fracture and severe tissue damage, is dismissed. Service connection for left eye hemorrhage, to include as secondary to chronic myelogenous leukemia (CML), is denied. FINDINGS OF FACT 1. During the pendency of this claim, service connection for residuals of a 5th metatarsal fracture (claimed as "fracture and severe tissue damage, left foot") was granted in an August 2019 rating decision; therefore, there is no remaining question of fact or law to be decided by the Board of Veterans' Appeals (Board). 2. The Veteran is not service connected for CML, and the preponderance of the evidence is against finding that the Veteran's left eye hemorrhage was otherwise incurred in service or was due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for dismissal of service connection for a left foot disability, to include fracture and severe tissue damage, have been met. 38 U.S.C. §§ 7104, 7105. 2. The criteria for service connection for left eye hemorrhage, to include as secondary to CML, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1966 to November 1969, September 2001 to May 2002, and November 2003 to September 2005. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). This law, which went into effect in February 2019, creates a new framework for veterans dissatisfied with VA's decision on their claim to seek review. The framework applies to all decisions issued after the effective date of the legislation. 38 C.F.R. §§ 3.2400(a)(1), 19.2(a). The matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the April 2019 rating decision. In June 2019, the agency of original jurisdiction (AOJ) issued the HLR rating decision on appeal, which considered the evidence of record at the time of the prior April 2019 rating decision. The Veteran timely appealed to the Board by submitting VA Form 10182 in May 2020 and selected the direct review docket. 38 C.F.R. §§ 3.2500(a)(1)(ii), 20.202, 20.203. Therefore, the Board may only consider the evidence of record at the time of the April 2019 rating decision. See 38 C.F.R. § 3.2601(f). Evidence was added to the claims file during a period of time when new evidence was not allowed. This includes updated VA treatment records. As the Board is deciding the claim of service connection for a left eye hemorrhage, to include as secondary to CML, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. Service connection for a left foot disability, to include fracture and severe tissue damage, is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. The Veteran's present claim is for service connection for residual symptoms of a tank injury that caused left foot bone fractures and severe tissue damage. See September 2018 VA Form 21-4138 (statement in support of claim). As set out above, this claim was denied in an April 2019 rating decision. The Veteran elected higher-level review, and the claim was denied again in a June 2019 rating decision. Subsequently, in June 2019, the Veteran filed a supplemental claim for service connection for "fracture and severe tissue damage of the left foot." Then, in an August 2019 rating decision, the RO granted service connection for a left foot disability, specifically, residuals of a 5th metatarsal fracture (claimed as "fracture and severe tissue damage, left foot"), with a disability rating of 10 percent, effective September 5, 2018. The Veteran subsequently filed a VA Form 21-526EZ (fully developed claim) in March 2020, challenging the disability rating for the left foot. The Veteran then filed a VA Form 10182 in May 2020, specifically identifying the two issues decided in the June 2019 rating decision, to include service connection for the left foot. The present claim stems from this VA Form 10182. The Veteran next filed a VA Form 20-0996 (request for HLR) in July 2020, challenging the initial disability rating as well as the effective date of the award, as assigned in the August 2019 rating decision. These claims for an increased rating and earlier effective date for the left foot disability were denied in August 2020 and December 2020 rating decisions, respectively. Then, in December 2020, a VA Form 20-0999 (HLR return) was received by VA. In a subsequent December 2020 rating decision, the RO denied an initial disability rating in excess of 10 percent for left foot, residuals, 5th metatarsal fracture; service connection for left foot degenerative arthritis; service connection for left foot hammer toes; service connection for left malunion/nonunion of tarsal/metatarsal bones; service connection for right foot degenerative arthritis; service connection for right foot hammer toes; and service connection for right malunion/nonunion of tarsal/metatarsal bones. Subsequently, in August 2021, the Veteran filed a VA Form 20-0996 (request for HLR) in response to the August 2020 rating decision regarding the disability rating for the left foot. In a September 2021 rating decision, the RO denied a disability rating in excess of 10 percent for left foot, residuals, 5th metatarsal fracture. VA is not in receipt of any appeal to the September 2021 rating decision. Moreover, even if there were a pending claim related to the left foot, the AMA does not allow the Board to merge AMA appeals stemming from different notices of disagreement (VA Form 10182), and as such, separate appeal streams are addressed in separate decisions after review by the Board. See 38 C.F.R. § 3.156(d). In sum, as the issue of service connection for a left foot disability, to include fracture and severe tissue damage, was the only pertinent issue appealed to the Board in the VA Form 10182 dated May 2020, and as the subsequent challenges to the effective date of the award and the initial disability rating were addressed in multiple rating decisions, all subsequent to the VA Form 10182 dated May 2020, there remains no question of law or fact for the Board to decide regarding service connection for a left foot disability. Thus, the appeal for service connection for a left foot disability, to include fracture and severe tissue damage, shall be dismissed. 2. Service connection for left eye hemorrhage, as secondary to CML, is denied. The Board finds that the preponderance of the evidence does not show that the Veteran has a left eye hemorrhage that is due to or aggravated by a service-connected disability or is otherwise related to service. Thus, an award of service connection is not warranted. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303, 3.310. 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). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The record in this case is clear as to whether the Veteran has a left eye disability. Private medical treatment records indicate that the Veteran reported having vision problems in February 2018 leading to a finding of ruptured blood vessels in the back of his eye suggestive of hemorrhage or infarction that led to a medical referral and finding of CML. See private medical treatment records received by VA in September 2018; see also VA treatment records received September 2018. Furthermore, post-service medical treatment records show a diagnosis of the following eye conditions: choroidal nevus, right eye; dry eye syndrome with allergic component, bilateral eye; corneal guttata, bilateral eye; pseudophakia, bilateral eye; epiretinal membrane, left eye; and bilateral regular astigmatism. See VA treatment records received September 2018; and April 2019 rating decision (noting a favorable finding regarding the existence of a current left eye disability). A prior bilateral cataract extraction and Fuchs' endothelial dystrophy bilaterally are also noted in the post-service medical treatment records. See Id. Thus, the first element of service connection, the existence of a current disability, is satisfied. Concerning the in-service event, illness, or injury, the Veteran's service treatment records (STRs) do not contain any record of complaints, treatment, or diagnosis of an eye condition during service. The STRs are not otherwise suggestive of an eye condition during service. However, the RO has conceded that the Veteran was exposed to herbicide agents in service. See April 2019 rating decision; see also DD 214 (noting Vietnam Service Medal, Vietnam Campaign Medal and service in the USARPAC from June 1967 to June 1968). The Board now turns to the question of nexus to service or a service-connected disability. The Veteran contends that his left eye hemorrhage is secondary to CML, which he contends is due to herbicide agent exposure. See September 2018 VA Form 21-4138 (statement in support of claim). This contention is supported by VA and private medical treatment records received by VA in September 2018, as further detailed below. However, the record shows that the Veteran is not presently service connected for CML. See June 2021 rating decision. Thus, an award of service connection for left eye hemorrhage as secondary to CML is not warranted. Moreover, a claim of service connection for CML is not presently before the Board, and the Board does not have jurisdiction over any such claim at this time. The AMA does not allow the Board to merge AMA appeals stemming from different notices of disagreement (VA Form 10182), and as such, separate appeal streams are addressed separately. See 38 C.F.R. § 3.156(d). Here, the Veteran claimed for service connection for CML and a left eye disability secondary to CML in the same claim dated September 2018. However, the AOJ adjudicated these issues separately. See February 2019 rating decision (denying service connection for CML) and April 2019 rating decision (denying service connection for a left eye disability). The VA Form 10182 dated May 2020, from which the present appeal stems, did not include the issue of service connection for CML. As such, the issue of service connection for CML is not presently before the Board. Accordingly, there is no basis on which to grant service connection for left eye hemorrhage as secondary to CML. Next, the Veteran contended that his eye hemorrhage is secondary to diabetes mellitus, type II, which he contends is secondary to herbicide agent exposure. See March 2019 VA 21-526EZ (fully developed claim). The Board acknowledges the favorable evidence of record that the Veteran is service connected for diabetes mellitus type II. The VA treatment records note that the Veteran was referred to a private medical provider to attempt to rule out leukemia, lymphoma and diabetic etiologies for his eye condition. See VA treatment records received September 2018. Private medical treatment records received in September 2018 indicate that the etiology of the left eye condition was due to CML. Furthermore, a VA examination dated January 2019 for diabetes mellitus noted no eye-related complications resulting from the disease. This is probative medical evidence of the absence of diabetic retinopathy, as the examination report indicates that a review of the file was completed, and as the VA examiner and private medical providers are competent to make such an assessment. Thus, an award of secondary service connection is not warranted. Turning to direct service connection, the Board does not find that an award of service connection on a direct basis is warranted. The record does not support finding a nexus between a current left eye disability and an in-service event, disease, or injury. The Board acknowledges the conceded in-service herbicide agent exposure. However, the list of presumptive diseases associated with herbicide agent exposure does not include any of the Veteran's eye conditions. See 38 C.F.R. § 3.309(e). While this is not dispositive, neither the Veteran nor his representative have presented or identified any contrary medical opinion or treatment record that supports the presence of a nexus between his presently diagnosed eye conditions and any event in service, to include as due to herbicide agent exposure. The Board acknowledges the lay statements of record and the assertion that the Veteran's left eye disability is related to service or a service-connected disability. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex. He does not have the requisite specialized knowledge, training, or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Moreover, the Board does not find that a remand to correct a pre-decisional duty to assist error for failure to obtain additional VA examinations or medical opinions is necessary. See 38 C.F.R. § 20.802. While there is competent evidence of a current disability, and conceded in-service herbicide agent exposure, as well as a service-connected disability, diabetes mellitus, type II, there is no indication that the current disability may be associated with the Veteran's service or service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). While the threshold for this finding is a very low one, conclusory lay statements that the eye condition is due to a non service-connected disability or service-connected diabetes mellitus, type II, both as due to herbicide agent exposure, is insufficient. See September 2018 VA Form 21-4138 (statement in support of claim); March 2019 VA 21-526EZ (fully developed claim). As set out above, the Veteran is not competent to opine on the medical etiologies of his condition. There is no medical opinion or treatment record indicating any relationship between the current eye disability and service, to include as due to herbicide agent exposure. There is no STR indicating an event, disease or injury relating to the Veteran's eyes. Accordingly, the low threshold under the third McLendon element is not met, and a remand is not warranted to obtain a VA examination. Moreover, a VA examination for diabetes mellitus, type II, was obtained in January 2019, and no eye-related complications were noted; this, coupled with the September 2018 VA and private medical treatment records indicating the relationship between eye hemorrhage and CML, shows that the medical evidence of record is adequate for adjudication of the claim. While the RO did not obtain a medical opinion regarding secondary service connection on an aggravation theory, there is no medical treatment record or other competent evidence of record that the Veteran's diabetes mellitus, type II, impacted or worsened his eye condition, and the Veteran has not so asserted. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Thus, the Board does not find that there was a pre-decisional duty to assist error for failure to obtain additional VA examinations or medical opinions. (Continued on the next page) As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, service connection for left eye hemorrhage, to include as secondary to CML, is not warranted. M. J. IN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.