Citation Nr: 21011186 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-44 004 DATE: March 1, 2021 ORDER Entitlement to service connection for painful joints is denied. Entitlement to service connection for a bilateral eye disability is denied. FINDINGS OF FACT 1. The evidence fails to demonstrate that any of the Veteran’s current painful joint conditions are the result of his active duty service. 2. The evidence fails to demonstrate that any of the Veteran’s current bilateral eye disabilities are the result of his active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for painful joints have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a bilateral eye disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to May 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In the December 2014 VA form 9, the Veteran declined an optional Board hearing. The undersigned Veterans Law Judge has been assigned to adjudicate these matters pursuant to 38 C.F.R. § 20.106(a) (formerly 19.3(a)). The Privacy Act requests submitted by the Veteran in March 2020 and his attorney in May 2020 have been fulfilled. See 2/19/21 letters. Accordingly, the Board may proceed with its appellate consideration. Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Service Connection 1. Entitlement to service connection for painful joints is denied. Generally, to establish service connection, a veteran must show: (1) a current disability; (2) an in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred during service, the so-called “nexus” requirement. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All elements must be satisfied before service connection may be achieved. Additionally, service connection may be achieved if any applicable presumptive service connection regulations apply to the Veteran’s circumstances. The Veteran seeks entitlement to service connection for “painful joints.” He has never specifically clarified the exact nature of his claim, such as which specific joints are painful. However, a review of the Veteran’s medical records demonstrates that he has experienced pain in the bilateral ankles, the bilateral knees, the right wrist, the left shoulder, and the low back during the appellate period. The Veteran has already been denied service connection for low back and left shoulder disabilities in the final October 2017 Board decision. Thus, this decision shall not consider these ailments any further. Regarding right wrist pain, the Veteran’s May 2019 VA treatment records document this complaint following the Veteran’s physical exertion while working on a farm. The Veteran was not issued an objective clinical diagnosis; instead, the Veteran was assessed with right wrist pain, rule out strain. Historically, symptoms such as pain, without a diagnosed or identifiable underlying malady, were not sufficient to establish a current disability for VA compensation purposes. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). However, in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit rejected such a theory, holding that pain can constitute a current disability under 38 U.S.C. § 1110, so long as it results in functional impairment of earning capacity. Here, there is no evidence of record demonstrating that the Veteran’s right wrist pain has resulted in any functional limitations that could negatively impact his earning capacity. As such, the Veteran’s claim seeking service connection for painful joints based on right wrist pain cannot succeed, as no current disability has been established within the appellate period. In the October 2017 decision, the Board remanded the claim for a VA examination based on evidence in the Veteran’s service treatment records demonstrating that the Veteran suffered a left ankle sprain during service. The Board requested that the Veteran undergo a VA examination to assess the nature of any chronic disability manifested by painful joints, to include the left ankle. The Veteran underwent a VA examination in February 2020, where he complained of bilateral ankle pain, left worse than right. He was diagnosed with bilateral lower extremity tendonitis based on September 2016 radiographs. . The Veteran’s service treatment records are negative for any right ankle complaints, injuries, or disabilities. Regarding the left ankle, the Veteran’s service treatment records document that the Veteran sprained his left ankle in January 1968 while playing basketball. A radiograph of the ankle showed no fractures. There were no ankle injuries documented in the records pertaining to the Veteran’s February 1969 car accident. At service separation, the Veteran’s lower extremities were found to be clinically normal and without defect. In the subjective Report of Medical History, the Veteran affirmatively denied the presence of any joint issues. Following an in-person assessment, and a review of the electronic claims file, the February 2020 VA examiner issued a negative nexus opinion, declining to link the Veteran’s bilateral ankle disabilities to the Veteran’s active duty service. The VA examiner noted that current VA treatment records did not document a left ankle disability requiring chronic care, and the Veteran’s January 1968 left ankle sprain was an acute event that resolved without sequelae, as demonstrated by the March 1969 service separation examination, which was normal and without documented foot complaints. The VA examiner observed that the Veteran’s bilateral lower extremity tendinitis was not clinically confirmed until 2016, decades after his separation from service. The VA examiner explained that calcific tendonitis occurs when calcium deposits build up in the muscles, tendons, or at the tendon-bone insertion point. He explained that this is a common phenomenon, with an unknown cause, although it is not related to injury, diet, or osteoporosis. The Board finds the February 2020 VA medical opinion to be of significant evidentiary value in this appeal. The VA examiner determined that the Veteran’s in-service left ankle sprain resolved without complications, and he noted that the Veteran was without foot complaints at service separation. He then explained that the Veteran’s current bilateral ankle disability is the result of cumulative calcium build-up, unrelated to the Veteran’s active duty service. As the February 2020 VA examiner’s opinion was supported by a thorough explanatory rationale, it is highly probative in this appeal. Stefl v. Nicholson, 21 Vet. App. 120 (2007). This VA medical nexus opinion weighs against the claim. In the absence of any other competent medical opinion linking the Veteran’s current ankle disabilities to his active duty service, the Veteran’s appeal seeking service connection for painful joints based on a bilateral ankle disability must be denied due to the absence of favorable medical nexus evidence. Subsequent to the October 2017 Board remand decision, VA treatment records were received indicating that the Veteran has been diagnosed with mild degenerative joint disease in the knees during the appellate period. The Veteran’s service treatment records are negative for any reports of knee pain or diagnoses of knee disabilities. There were no knee complaints documented at the March 1969 separation examination, and in the subjective Report of Medical History, the Veteran affirmatively denied “trick” or locked knee. As the record lacks credible evidence establishing an event, injury or disease affecting the knees during service or within one year following separation from service, and there is no indication that the Veteran’s current bilateral knee disabilities may be related to any in-service event, VA’s duty to obtain a VA medical examination/opinion regarding the knees has not been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Likewise, in the absence of evidence showing an in-service incurrence of knee symptoms/disability, and competent medical nexus evidence linking the Veteran’s current disability to his active duty service, the Veteran’s claim seeking service connection for painful joints based on the knees must be denied. To the extent that the Veteran’s knee disabilities may be considered arthritis, the Veteran cannot achieve service connection on a presumptive basis under 38 C.F.R. §§ 3.303(b), 3.307(a)(3), and 3.309(a) as there is no evidence that the Veteran sustained any knee symptoms/disabilities (yet alone radiograph-confirmed arthritis) during service, or to compensable degree within one year of separation from service. In the absence of such, continuity of symptomatology has no application. The Veteran is not entitled to service connection for painful joints based on the knees utilizing the relevant presumptive service connection provisions. In sum, the Veteran’s left shoulder and low back disability claims were fully resolved in the final October 2017 Board decision. The Veteran’s claim based on right wrist pain cannot succeed due to the lack of a current disability for VA compensation purposes within the appellate period. In the most probative medical opinion of record, the February 2020 VA examiner has thoroughly explained why the Veteran’s current bilateral ankle disabilities are not related to the Veteran’s active duty service. Finally, there is no probative evidence establishing that the Veteran experienced any knee disabilities during service, and no probative medical nexus evidence linking the Veteran’s current knee disabilities to his active duty service. The preponderance of the evidence weighs against the Veteran’s claim seeking service connection for painful joints based on all joint conditions reasonably raised by the record. As such, the benefit-of-the-doubt doctrine is not for application, and the Veteran’s claim seeking entitlement to service connection for painful joints must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). 2. Entitlement to service connection for a bilateral eye disability is denied. The Veteran seeks entitlement to service connection for a variety of bilateral eye disabilities. The Veteran has been diagnosed with bilateral hypermetropia, bilateral presbyopia, bilateral astigmatism, bilateral senile nuclear sclerosis, and epiretinal membrane in the right eye. See February 2020 VA examination; see e.g. September 2019 VA treatment records. Thus, the current disability element for a service connection claim has been satisfied. Shedden, supra. To the extent that the Veteran seeks service connection for refractive error, service connection is generally precluded by VA regulation for congenital or developmental “defects” or refractive error of the eye because they are not “diseases” or “injuries” within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9; see Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). It is well established that presbyopia and astigmatism are refractive errors. See presbyopia. (n.d.) Millodot: Dictionary of Optometry and Visual Science, 7th edition. (2009). Retrieved February 22, 2021 from https://medical-dictionary.thefreedictionary.com/presbyopia; astigmatism. (n.d.) Miller-Keane Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health, Seventh Edition. (2003). Retrieved February 22 2021 from https://medical-dictionary.thefreedictionary.com/astigmatism. The February 2020 VA examiner further confirmed that hypermetropia is also a refractive error. The Veteran’s service treatment records are negative for abnormal vision or any diagnosed eye conditions. In fact, the Veteran’s uncorrected vision was 20/20 in each eye at service separation; and 20/20 in the left eye and 20/15 in the right eye in 1970. There is no objective medical evidence of record indicating, or even hinting, that the Veteran’s current bilateral eye refractive errors are the result of a superimposed disease or injury acquired during his active duty service. See VAOPGCPREC 82-90. The February 2020 VA examiner reached the same conclusion, opining that the Veteran’s refractive error was congenital and developmental, and reiterating that there was no evidence of direct ocular trauma or ocular surgery during the Veteran’s active duty service. Thus, the Veteran’s claim seeking service connection for a bilateral vision/eye disability manifested by refractive error must be denied. The Board notes that the Veteran has submitted an internet article discussing hyperopia (also referred to as hypermetropia). However, this article merely confirms that hyperopia is a refractive error—which is not subject to service connection absent evidence of superimposed injury or disease during service that resulted in the refractive error—which did not occur in the present matter. Regarding the Veteran’s nonrefractive error eye disabilities, the evidence also preponderates against the conclusion that these disabilities are etiologically related to the Veteran’s active duty service. The Veteran’s service treatment records are negative for visual abnormalities, eye trauma, or any diagnosed eye conditions. The Veteran sustained a car accident in February 1969 that resulted in a fracture to the right zygomatic arch without major artery or nerve impairment. Following the accident, examination of the eyes revealed full extraocular muscles and no dipoplia. Neurological examination showed no gross defects. While the Veteran reported “eye trouble” in the March 1969 Report of Medical History, the corresponding physical examination listed the eyes as clinically normal, and the Veteran’s vision was 20/20 in both eyes. The Veteran had orthophoria by cover test at 20 feet and he was found to be qualified for separation. A post-service vision test conducted in 1970 showed visual acuity of 20/15 in the right eye and 20/20 in the left eye. The February 2020 VA examiner explained that the Veteran’s bilateral senile nuclear sclerosis and right eye epiretinal member were not the result of the Veteran’s active duty service, to include his February 1969 car accident. In pertinent part, the VA examiner explained: Veteran presents with senile nuclear sclerosis; this is to be expected in a 72 year[] old person. Service treatment records are silent for this condition, [the Veteran’s] separation report [showed] uncorrected visual acuity [of] 20/20 in both eyes. [VA treatment records show] he was diagnosed with nuclear sclerosis in Aug/2012—at the age of 65 years. Nuclear sclerosis [is] not caused or the result of facial trauma with right zygoma fracture. Studies demonstrate that 95 [percent of people] near 65 years or older will present some degree of crystalline lens opacification, producing light scattering and blurring of vision. Dilated fundus exam [shows] epiretinal membrane in right eye. [VA treatment records show] evidence of this condition initially found in 2018. Service treatment records are silent for this condition. Epiretinal membrane are not caused or the result of facial trauma with right zygoma fracture. Report of medical examination [at] separation [showed] visual uncorrected acuity 20/20 [in both eyes]. Epiretinal membranes are avascular fibrocellular membranes that proliferate on the surface of the retina. Glial cell from the inner layer of the retina proliferate through breaks in the internal limiting membrane usually after a posterior vitreous detachment. These cells, once in contact and attached to retina, may proliferate and form a sheet over the retinal surface. Due to contraction of the membrane[,] the retina may become distorted. The incidence of associated [posterior vitreous detachment] ranges [from] 75-93%. The idiopathic variety of epiretinal membranes [affects] up to 7% of the population. Bilateral cases can be seen in as much as 30% of the population. They have a 2% prevalence in individuals aged 50 and 20% in individuals aged 75 and over. The Board affords significant evidentiary weight to the medical nexus opinion issued by the February 2020 VA examiner, as it was based on an accurate factual premise and was fully supported by an articulated rationale. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). As noted by the VA examiner, the Veteran’s service treatment records are negative for visual abnormalities or diagnosed eye conditions, and his bilateral nuclear sclerosis and right eye epiretinal membrane were not diagnosed until decades after his separation from service. Accordingly, the Board finds the February 2020 VA medical opinion to be highly probative in this appeal. The evidence of record fails to demonstrate that the Veteran experienced any eye disabilities in service. The Veteran’s refractive errors of astigmatism, presbyopia, and hypermetropia are not subject to service connection as a matter of law, and there is no evidence that these disabilities are the result of a superimposed disease or injury acquired during the Veteran’s active duty service. Regarding the Veteran’s bilateral nuclear sclerosis and right eye epiretinal membrane, the only probative medical nexus evidence of record is the opinion of the February 2020 VA examiner, which weighs against the claim. [Continued on Next Page] The requisite elements of direct service connection have not been satisfied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the Veteran’s appeal seeking service connection for a bilateral eye disability must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert 1 Vet. App. at 58. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante 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.