Citation Nr: 21007065 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 10-44 584 DATE: February 8, 2021 ORDER Entitlement to service connection for right eye photophobia is granted. Entitlement to service connection for residuals of left femur fracture, secondary to service-connected bilateral eye photophobia, on a causation basis, is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s right eye photophobia is related to his active duty service. 2. The evidence is at least evenly balanced as to whether the Veteran’s residuals of left femur fracture were caused by service-connected bilateral eye photophobia. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for right eye photophobia are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for residuals of left femur fracture, secondary to service-connected bilateral eye photophobia, on a causation basis, are met.  38 U.S.C. §§ 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 August 1976 to August 1989. These matters came before the Board of Veterans’ Appeals (Board) from November 2011 and March 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, denied the claims of service connection for status post blast injury, left open femur fracture, left thigh (claimed as left femur condition) and right eye photophobia as secondary to the service-connected disability of non-arteritic anterior ischemic optic neuropathy of the left eye with photophobia and glaucoma. The Veteran testified before the undersigned Veterans Law Judge at an October 2016 hearing, and a transcript of that hearing is of record. In February 2017 and July 2018, the Board remanded these claims for further development. As the benefits sought have been granted in full, discussion of remand compliance is unnecessary. Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Entitlement to service connection for right eye photophobia The Veteran contends he has experienced right eye photophobia symptoms since his separation from service. In light of the favorable decision to grant the Veteran’s claim for entitlement to service connection for right eye photophobia on a direct incurrence basis, a discussion of any other theory of entitlement is not necessary. A July 1983 service treatment record indicated the Veteran experienced photophobia and was issued sunglasses. An August 2006 VA treatment record noted the Veteran’s photophobia. An October 2011 VA optometrist confirmed the Veteran’s diagnosis of bilateral eye photophobia. The VA optometrist indicated that a firework flash seemed to have caused the Veteran’s sustained photophobia, not any of his other ocular conditions, to include his cataracts and optic neuropathy. A January 2018 VA ophthalmologist found that the Veteran’s claims file did not show the presence of right eye photophobia symptoms due to service. There was no obvious cause of the Veteran’s photophobia symptoms. The VA ophthalmologist also noted that the Veteran’s cataracts were mild, age-related, and not aggravated by any other cause. In addition, the photophobia and cataracts of the right eye were not aggravated beyond their natural progression by the service-connected left eye disability as there was no medical evidence to support the right eye conditions existed while in service or that the right eye photophobia occurred before or at the time of the left eye condition. In an April 2018 addendum opinion, the VA ophthalmologist reasoned that the Veteran’s conditions of cataracts and photophobia were not secondary to or aggravated by the Veteran’s service-connected hypertension as cataracts are not caused or worsened by hypertension. In June 2019, a VA ophthalmologist found that the Veteran’s right eye diagnoses of photophobia and cataracts were unrelated and not aggravated by the Veteran’s diagnosis of hypertension. Photophobia was related to an unknown etiology per previous reports, and cataracts are an age-related condition. There is no evidence supporting hypertension causes photophobia or cataracts. In addition, the VA ophthalmologist found that the diagnoses of non-arteritic anterior ischemic optic neuropathy of the left eye with photophobia and glaucoma and/or hypertension were unrelated to decreased vision in the right eye. The diagnosed conditions of the left eye in no way contributed to any diagnosis in the right eye. Cataracts are age-related, and the diagnoses of non-arteritic anterior ischemic optic neuropathy of the left eye with photophobia and glaucoma and/or hypertension had no effect on cataract development in the right eye. For the following reasons, the evidence is at least evenly balanced as to whether the Veteran’s right eye photophobia is related to his active duty service. An October 2011 VA examination diagnosed the Veteran with right eye photophobia. He has therefore met the current disability requirement. A July 1983 service treatment record indicated the Veteran experienced photophobia. He therefore meets the in-service injury or disease requirement. The Veteran is competent to report continuous right eye photophobia symptoms in the years in and since separation from service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence).  The Veteran’s statements in regard to continuous right eye photophobia symptoms in and since separation from service are therefore competent and credible.  The October 2011, January 2018, April 2018, and June 2019 opinions are afforded little probative value as they failed to consider the Veteran’s lay statements regarding continuous right eye photophobia symptoms both in and since his separation from service. Buchanan, 451 F.3d at 1336 (VA examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”).   Thus, the lay evidence in this case is sufficient to decide the claim. The Veteran is competent to report the onset and persistent nature of his light sensitivity symptom. There is no evidence of record to indicate that the Veteran’s statements as to the onset of his photophobia in-service and its worsening since service are not credible. To the extent that the grant of service connection in this case is based primarily on lay evidence, “nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself.”  Id. at 1335.    At this point, the Board could remand the claim for a VA examination or opinion.  However, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible.  38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s right eye photophobia is related to his active duty service. Thus, resolving reasonable doubt in the Veteran’s favor, entitlement to service connection for right eye photophobia is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for residuals of left femur fracture, secondary to bilateral eye photophobia, on a causation basis The Veteran contends the residuals of his left femur fracture are related to his service-connected bilateral eye photophobia. Specifically, the Veteran contends that in approximately March 2011, the light from a firework he lit was so bright that he was temporarily blinded as a result of his photophobia, which led him to fall and fracture his left leg. A private treatment record from March 2011 noted that the Veteran underwent surgery to insert a rod to repair a left femur fracture that he suffered during a fireworks mishap in approximately March 2011. Thus, the Veteran meets the current disability requirement.  An October 2011 VA optometrist reasoned that the Veteran’s photophobia led to his other injuries during the March 2011 firework flash. While the VA optometrist did not explicitly mention how the Veteran was injured during the fireworks accident, the Board finds the optometrist was referring to the Veteran’s left femur fracture because that is the injury the Veteran suffered during the firework mishap. For the following reasons, the evidence is at least evenly balanced as to whether the Veteran’s residuals of left femur fracture were caused by his service-connected bilateral eye photophobia. The October 2011 VA opinion indicated that the Veteran’s photophobia led to his left femur fracture. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Furthermore, as the VA opinion indicated that the Veteran’s photophobia led to his left femur fracture, the Board will interpret the opinion in the manner most favorable to the Veteran and find that it supports a causal relationship between the service-connected bilateral eye photophobia and residuals of left femur fracture.  Cf. Brown v. Gardner, 513 U.S. 115, 118 (1994) (in construing Veterans’ law, “interpretive doubt is to be resolved in the Veteran’s favor”); Roper v. Nicholson, 20 Vet. App. 173 (2006) (remanding for factual determinations when Veteran with service-connected hearing loss suffered injuries at work and while boating because he could not hear shouts warning him of approaching danger). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s residuals of left femur fracture were caused by his service-connected bilateral eye photophobia. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for residuals of left femur fracture, secondary to bilateral eye photophobia, on a causation basis, is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.