Citation Nr: 21011434 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-09 964 DATE: March 1, 2021 ORDER Entitlement to service connection for left eye vision impairment is denied. REMANDED Entitlement to service connection for a traumatic brain injury (TBI) is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a left eye vision impairment due to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for left eye vision impairment have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 2012 to March 2016. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. Entitlement to service connection for left eye vision impairment is denied. The Veteran contends that he has a left eye vision impairment that is related to an in-service, event, illness, or injury, as he believes the impairment is related to being hit in the left eye with a rifle during military training. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Congenital or developmental defects, such as refractive error of the eyes, are not diseases or injuries within the meaning of applicable legislation and, thus, are not disabilities for which service connection may be granted. 38 C.F.R. § 3.303(c); see also 38 C.F.R. § 4.9; Beno v. Principi, 3 Vet. App. 439 (1992). As such, service connection is not available for any loss of vision attributable to refractive errors, including presbyopia. Turning to the evidence, a February 2013 service treatment record reported the reason for the appointment was an eye examination. It was reported that the Veteran was “[c]urrently wearing eyeglasses - wore glasses as a child, none since age 10 years.” He was diagnosed with regular astigmatism and provided a prescription for glasses for full-time or part-time wear, with a recommendation to wear when on duty. A November 2013 service treatment record reported the Veteran was hit with the barrel of a rifle during training. He reported having blurry vision and pain from bright lights. It was reported that, other than tenderness, he had no vision problems. The Veteran indicated that he used to be a boxer and reported that his injury was no worse than when he had been jabbed in the eye several times in the past. He was diagnosed with a contusion of the left orbital with intact skin surface. At a January 2014 periodic health assessment, no vision problems or complaints were noted. A July 2014 service treatment record reported that the Veteran did not experience a change of loss of vision in either eye. The Veteran completed a report of medical history in February 2016 in which he reported having an eye disorder and loss of vision. A subsequent February 2016 service separation examination reported that the Veteran noted that he had decreased vision in his left eye and wears glasses for night driving. The Veteran denied complications of diplopia or loss of vision related to his eye trauma two to three years ago. The Veteran was diagnosed with regular bilateral astigmatism. The disposition was noted as released without limitations. The Veteran was provided a VA eye examination in May 2016. The Veteran reported blurry vision bilaterally at distance that is improved with prescription glasses. It was noted that he was first provided a prescription around 2013. The Veteran reported a left eye injury from the rubber part of a gun during training around 2013. The Veteran reported that his eye was bleeding and closed for two days. There was no treatment, just observation in the hospital. The examiner opined that the Veteran does not have a diagnosis of left eye vision impairment that is at least as likely as not (50 percent or greater probability) incurred in or caused by his in-service injury of being hit with the rubber part of a gun in the left eye during service. The examiner explained that the Veteran’s records show a November 2013 diagnosis and treatment of contusion with intact skin left orbital, but that today’s examination showed no residual signs of that injury. The Veteran has excellent best corrected visual acuity in both eyes and a regular developmental astigmatism bilaterally that is not associated with the injury. At the Veteran’s January 2021 Board hearing, he testified that, after his in-service injury, his eyes never got back to normal. He stated that he experienced “almost like swelling in this eye.” According to the Veteran, since his injury, he experienced random watering of his eye, like he was crying. The Board affords great probative weight to the May 2016 medical opinion. After reviewing the Veteran’s claims file, the examiner opined that the Veteran does not have a diagnosis of left eye vision impairment that is at least as likely as not incurred in or caused by his in-service injury. The examiner explained that the Veteran has excellent best corrected visual acuity in both eyes and a regular developmental astigmatism bilaterally that is not associated with the injury. As described above, the first prong of a service connection claim is a current disability. The evidence does not demonstrate that the Veteran had a left eye vision impairment during the pendency of the appeal. The U.S. Court of Appeals for Veterans Claims has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In February 2013, approximately two months before he was hit in the eye, the Veteran was diagnosed with regular astigmatism and provided a prescription for corrective glasses with a recommendation to wear when on duty. After his injury in November 2013, no vision problems or complaints were noted at a January 2014 periodic health assessment. A July 2014 service treatment record reported that the Veteran did not experience a change of loss of vision in either eye. Although the Veteran testified at his January 2021 Board hearing that he experienced watering of his left eye, there is no evidence in the record relating this condition to the Veteran’s service. A February 2016 service treatment record included an optometry questionnaire with the following question: Have you ever experienced any eye/vision problems such as: eye injury, eye surgery, double vision, loss of vision, flashes of light, excessive tearing, irritation, or allergies? The Veteran responded that he had an eye injury; however, he did not indicate that he experienced excessive tearing. Moreover, the May 2016 VA examination report makes no mention of eye watering or excessive tearing and the examiner concluded that the Veteran had regular developmental astigmatism bilaterally that is not associated with the injury. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection for left eye vision impairment. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran’s claim for left eye vision impairment must be denied. REASONS FOR REMAND Entitlement to service connection for a traumatic brain injury (TBI) is remanded. A review of the claims file reveals that a remand is necessary before a decision on the merits of the claims for service connection for TBI can be reached. The Veteran was provided a VA TBI examination in June 2016. The Veteran reported being struck in the head during military training in June 2012. He had post-concussive headaches for two days that resolved but he believes he began to have recurrent episodic headaches shortly after the June 2012 head injury. The Veteran reported that his headaches increased in frequency after another head injury in November 2013. The Veteran complained of short-term memory difficulty since his 2012 injury. He forgets things within hours and day, which has led to arguments with his fiancée. He also reported that he had difficulty with long term memory to a lesser degree. Despite an in-service diagnosis of mild TBI in March 2016, the examiner opined that the Veteran’s head injury in November 2013 was less than likely associated with a TBI. The examiner explained that the Veteran fully recovered from his June 2012 TBI with no residuals and that his November 2013 injury was not associated with a TBI as there was no loss of consciousness. The examiner noted that the headaches noted in 2016 were more current with his current tension headaches and less than likely related to his 2012 mild TBI as he had fully recovered fully with no residuals as of June 2012. The examiner explained that there is no evidence of continued complaint of, or treatment for, headaches after his June 2012 TBI to support continuity between his June 2012 TBI and ongoing headaches. Although the examiner concluded that there is no evidence of continued complaints of headaches after June 2012, this statement conflicts with the evidence of record. A July 2014 service treatment record reported that the Veteran experienced occasional minor headaches. Moreover, the Veteran reported to the examiner that he developed recurrent headaches after the June 2012 head injury. He also reported having short-term memory impairment since that time. The same examiner administered a separate VA headaches examination in June 2016 and opined that it was as liked as not that the Veteran’s current headaches, which he described as non-prostrating tension-type headaches, began during service. Because the examiner’s opinion was at least based in part on his conclusion that there was no evidence of continued complaints of headaches after June 2012, the Board finds the examiner’s opinion is inadequate, as a medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The opinion and rationale provided by the examiner also failed to sufficiently analyze relevant evidence, including the Veteran’s lay statement. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Notably, once VA undertakes the effort to provide an examination when developing a claim, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, the Board finds that a remand is warranted for an addendum opinion to consider the complete history of the Veteran’s symptoms of TBI, including headaches and memory impairment, to determine whether service connection is warranted. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. 3. Return the claims file, including a copy of this remand, to the VA examiner who conducted the June 2016 VA TBI examination, or to another appropriate medical professional if that individual is unavailable, to provide an addendum opinion regarding the etiology of the Veteran’s TBI. The Veteran’s claims file, to include a copy of the remand, must be made available to the examiner along with any other information the medical professional deems pertinent. If an additional examination is required for the examiner to sufficiently provide an etiology opinion, a new examination should be afforded. 4. After a review of the claims file, the examiner should provide an opinion that answers the following question: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has a TBI that is etiologically related to the Veteran’s active service? 5. The opinion must reflect consideration of the medical and lay evidence of record, including the Veteran’s lay statements and the July 2014 record noting that he experienced minor headaches, and set forth a complete rationale for all findings and conclusions. 6. After the development described above, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any determination remains unfavorable to the Veteran, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page)   This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.