Citation Nr: 21005894 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-15 320 DATE: February 2, 2021 ORDER Entitlement to service connection for an eye disability is denied. FINDING OF FACT A current eye disability did not begin during service and was not otherwise incurred or aggravated as a result of in-service injury or disease. CONCLUSION OF LAW The criteria for establishing service connection for an eye disability have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 24, 1958 to March 7, 1958, with service in the Naval Reserve from October 10, 1956 to February 23, 1958. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in February 2017, April 2018, October 2019 and August 2020. The opinion requested in the February 2017 remand was obtained in November 2017. The notice and records detailing the Veteran’s active duty for training (ADT) and inactive duty for training (IDT) requested in April 2018 were obtained in October 2018. Finally, attempts were made in September 2020 to obtain the Social Security Administration (SSA), State of Colorado, and private treatment records requested in the October 2019 and August 2020 remands. As such, the directives have been substantially complied with and the matter is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran and his representative were notified in January 2021 correspondence that the appeal had been returned to the Board and placed on its docket, and that they had 90 days to submit additional evidence or argument in support of the claim. However, neither the Veteran nor the representative have submitted any additional evidence or argument. As the Veteran and his representative were afforded the opportunity to present argument or evidence and elected not to, the Board will proceed to address the appeal on the merits. 38 C.F.R. § 20.5. Veterans Claims Assistance Act of 2000 (VCAA) The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In accordance with the October 2019 and August 2020 remands, VA attempted to obtain all medical records associated with the Veteran’s claims for SSA disability benefits and any records associated with disability benefits received from the State of Colorado. As to the SSA records, in September 2020 correspondence the SSA stated that all medical records associate with the Veteran had been destroyed. With respect to the records from the State of Colorado, in November 2020 the Colorado Department of Public Health stated that it did not have any records associated with the Veteran. As such, both locations informed VA that there were no records available, and therefore that further attempts to obtain them would be futile. 38 C.F.R. § 3.159(c)(1)–(2). In October 2020 and November 2020 correspondence, VA informed the Veteran of the records they attempted to obtain, the efforts made to obtain them, further actions VA was going to take on the claim, and that the Veteran was ultimately responsible for submitting the records. 38 C.F.R. § 3.159(e). Thus, VA made adequate attempts to obtain the records, and provided sufficient notice of their inability to do so to the Veteran. 38 C.F.R. § 3.159(c)(1)–(2), (e). As such, the Board finds that VA has satisfied its duty to assist as to record from both the SSA and the State of Colorado. The Board notes that the response form the State of Colorado Department of Health stated that they did not maintain records, and that private providers would have to be contacted directly in order for any records to be obtained. To this end, in September 2020 VA requested that the Veteran either submit or authorize for release any private treatment records relevant to his claimed eye disability, and provided the Veteran with the form necessary to do so. However, the Veteran did not either submit the records himself nor authorize their release so that VA could obtain them on his behalf. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As the Veteran did not authorize the records for release so that VA could attempt to obtain them or submit the records himself, the Board finds that VA has made adequate attempts to obtain any outstanding private treatment records. 38 C.F.R. § 3.159(c)(1). Neither the Veteran, the representative nor the record has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). As such, the Board will proceed to adjudicate the issue on appeal. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Congenital or developmental defects, refractive error of the eye and personality disorders, however, are not “diseases or injuries” within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c). 1. Entitlement to service connection for an eye disability. During the November 2017 eye examination, the Veteran was diagnosed with bilateral cataracts, bilateral hypertensive retinopathy, and a right eye macular hole. The examiner also noted that the Veteran had bilateral refractive error. Refractive error of the eye is not considered a disease or injury for which disability compensation may be awarded. 38 C.F.R. § 3.303(c). As service connection for refractive error is barred as a matter of law, the Board will not address that diagnosis further and instead will focus on the other eye diagnoses of record. Id. Concerning an in-service injury, the Veteran’s August 1956 Naval Reserve enlistment examination noted that he had uncorrected vision of 20/100 bilaterally. The examiner noted that the Veteran had defective distance vision, which was correctable to 20/20 bilaterally. No other eye disabilities were diagnosed at that time. 38 U.S.C. §§ 1111, 1132, 1137; 38 C.F.R. § 3.304. According to his DD-214 and personnel records the Veteran was then ordered to active duty from the Naval Reserves on February 24, 1958. The Veteran underwent an active duty examination on that date, which noted that the Veteran had uncorrected vision of 20/400 bilaterally, which was correctable to 20/20 in the right eye and 20/40 in the left eye. The examiner noted that the Veteran had defective vision and defective color perception, but no other eye disabilities were diagnosed. 38 U.S.C. §§ 1111, 1132, 1137; 38 C.F.R. § 3.304. On a corresponding report of medical history, the Veteran denied any history of eye trouble, stating only that he wore glasses. The Veteran subsequently underwent additional visual testing in March 1958, during which it was noted that the Veteran had vision that was 9/400 on the right and 10/400 on the left, which was not correctable. The Veteran then underwent proceedings for a medical discharge based on what was described as “bilateral blindness.” The Medical Board report noted that the Veteran was treated for a diagnosis of bilateral blindness, and that by his own statement his defective vision had its onset when he was fourteen years old and battery acid was accidently splashed into his eyes. The Medical Board concluded that the Veteran’s defective vision disqualified him for further active service, and further that the defective vision was not incurred in or aggravated by his active service. The Veteran signed a statement acknowledging the finding that his “bilateral blindness” was not incurred in or aggravated by service as part of the medical discharge proceedings. In the November 2017 examination report, the examiner noted that while the Veteran’s diagnosis in the service treatment records was “bilateral blindness,” the Veteran signed his Medical Board paperwork clearly and legibly, which was not consistent with the abilities of an individual who was either blind or even low vision. The examiner further referenced his findings in a May 2013 examination report, in which he stated that the Veteran was not, and never had been, blind. Based on these documents and the November 2017 opinion, the Veteran was only treated for defective vision, i.e. refractive error of the eye, during service. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1616–17 (32d ed. 2012). As noted, refractive error is not considered a disease or injury for the purposes of VA compensation benefits. 38 C.F.R. § 3.303(c). As such, the documented refractive error in service cannot constitute an in-service injury or disease for the purposes of awarding VA disability benefits. The Board further notes that the Veteran has stated that in January 1958, while serving in the Naval Reserves, a fluorescent lightbulb burst in his face. He stated that despite subsequent and immediate treatment, his vision progressively worsened and resulted in his March 1958 discharge. The Board initially notes that it is not clear from the record whether or not this accident occurred during a period of ADT or IDT, as January 1958 would be prior to the Veteran’s entry onto active duty on February 24, 1958. 38 U.S.C. § 101(24). However, even assuming for the purposes of argument that the reported accident did in fact occur during ADT or IDT, the Veteran’s account of a January 1958 eye injury is inconsistent with the other evidence of record. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995), aff’d per curiam, 78 F.3d. 604 (Fed. Cir. 1996). In this case, on his February 1958 report of medical history, completed at the time of his entry onto active service, the Veteran specifically denied any history of eye trouble of any kind, stating only that he wore glasses. Further, during his March 1958 Medical Board proceedings the Veteran did not report incurring any sort of eye injury either during his active or reserve service. Instead, the Veteran specifically stated that his defective vision stemmed from an accident when he was 14 year of age when battery acid splashed in his eyes. In addition, as part of the medical discharge proceedings the Veteran signed a March 1958 statement acknowledging that the Medical Board had determined that his physical disability, then characterized as bilateral blindness, was not incurred in or aggravated by his service. In light of the Veteran’s inconsistent statements concerning the onset of his defective vision or eye disability, the Board finds they are entitled to no probative weight. Id.; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In making this credibility determination, the Board notes that in the February 2017 remand the Board instructed the examiner to accept as true the Veteran’s statements concerning the lightbulb bursting in his face. Smith v. Wilkie, 32 Vet. App. 332, 338–40 (2020). However, the Board did not state at any point that it found the Veteran’s statements concerning the accident credible. Id. Instead, the Board only instructed that the examiner accept the statements as being true for the purposes of obtaining an adequate medical opinion. Miller v. Wilkie, 32 Vet. App. 249, 259–60 (2020). As such, there is no prejudice to the Veteran in finding that his statements concerning the lightbulb accident are not credible herein. Smith, 32 Vet. App. at 338–40. As there is no competent and credible evidence of an in-service injury or disease for which VA disability compensation may be paid, the Board finds that service connection for an eye disability is not warranted. Further, even assuming for the purposes of argument that an in-service injury or disease has been established, whether it be the lightbulb accident or the notation of bilateral blindness, the preponderance of the evidence is against a finding of a nexus between the current disability and service. While the Veteran has asserted that his current eye disabilities are causally related to his service, these assertions are not competent as to provide such an opinion requires medical training and expertise beyond that which may be expected of a lay person. Jandreau, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As such, these assertions are entitled to no probative weight. The Veteran has also reported worsening vision since the reported lightbulb accident in service. While competent to report lay observable symptoms such as worsening vision, the Board finds that the Veteran’s assertions of worsening vision since service are not credible. Caluza, 7 Vet. App. at 511–12. As discussed above, although the Veteran has stated that he injured his eyes in January 1958 and has experienced worsening vision since he denied any issues with his eyes or vision, other than stating he wore glasses, on a February 1958 report of medical history. Further, the Veteran’s March 1958 medical discharge proceedings reflect that the Veteran reported that his defective vision in fact had its onset after he accidentally had battery acid splashed in his eyes when he was 14 years old. Finally, the Veteran signed a statement acknowledging that his defective vision was neither incurred in nor aggravated by his period of service in March 1958, which contradicts his current assertions that his vision loss was incurred during his reserve service in January 1958. In light of the inconsistent nature of the Veteran’s statements, the Board finds they are not credible and therefore entitled to no probative weight. Id.; Barr, 21 Vet. App. at 309. VA obtained an opinion concerning the etiology of the Veteran’s diagnosed eye disabilities in November 2017. The examiner stated that there was no evidence of blindness in either eye, and that the Veteran’s distance vision was 20/200 bilaterally, correctable to 20/50 in the right eye and 20/40 in the left eye. The examiner then noted uncorrected near vision of 20/70 bilaterally, correctable to 20/40 or better bilaterally. The examiner specifically acknowledged and accepted for the purposes of the opinion the Veteran’s report that a lightbulb burst in his face during service. However, the examiner stated that the Veteran’s bilateral cataracts were due to age, and were not incurred in service or causally related to the reported injury from the lightbulb. As to the hypertensive retinopathy, the examiner stated that the retinopathy was due to hypertension, which was diagnosed in approximately 1998, and was not due to the Veteran’s service. As to the macular hole in the right eye, the examiner stated that this disability did not develop until many years after discharge, and therefore was also not related to the Veteran’s period of service. In sum, the examiner stated that none of the diagnosed eye disabilities were related to the Veteran’s period of service, including the reported lightbulb accident. There is no evidence that the above examiner was either not competent or credible. Further, the examiner’s opinion specifically addressed the Veteran’s reported in-service injury and statements concerning worsening vision, provided alternative causes for the currently diagnosed disabilities and cited directly to the medical evidence of record, including the Veteran’s service treatment records and Medical Board paperwork. As such, the Board finds that the opinion is entitled to significant probative weight as to the presence of a nexus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Treatment records associated with the file do not contain any opinions linking the eye disabilities to his period of service. As such, the records are entitled to no probative weight. Based on the foregoing, the preponderance of the evidence is against a finding that the currently diagnosed eye disabilities are causally related to an in-service injury or disease. As discussed, refractive error is not considered a disability for which VA disability compensation may be paid, and therefore service connection for that diagnosis is barred as a matter of law. 38 C.F.R. § 3.303(c). As to the other diagnosed disabilities, as explained in depth above there is no competent and credible evidence of an in-service injury or disease. Further, the only competent and credible evidence of a nexus is the November 2017 VA examiner’s opinion, which stated that the Veteran’s cataracts were due to age, the retinopathy was due to hypertension and the macular hole was diagnosed many years after service, and therefore that none of the disabilities were due to service. While the examiner linked the retinopathy to hypertension, the Veteran is not service connected for hypertension. 38 C.F.R. § 3.310. As such, the claim for service connection must be denied. 38 C.F.R. §§ 3.102, 3.303. The preponderance of the evidence weighs against a finding that the Veteran’s eye disability is causally related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Medina, 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.