Citation Nr: 21012320
Decision Date: 03/04/21	Archive Date: 03/04/21

DOCKET NO. 14-22 209
DATE: March 4, 2021						

ORDER

Entitlement to service connection for refractive error, mild dry eyes, and bilateral incipient senile cataracts, claimed as a bilateral eye disorder, is denied. 

REMANDED

Entitlement to service connection for hypertension, secondary to exposure to herbicides, is remanded.

Entitlement to service connection for erectile dysfunction (ED) is remanded.

Entitlement to service connection for a spine disorder is remanded.

Entitlement to special monthly compensation based on loss of use of a creative organ is remanded.

FINDINGS OF FACT

1. Refractive errors of the eye, such as hypermetropia, astigmatism, presbyopia, are not disabilities within the meaning of legislation providing for VA benefits.

2. The Veteran’s other claimed eye disabilities were not shown in active service, or for many years thereafter, and the medical evidence of record weighs against the claim.

CONCLUSION OF LAW

The criteria to establish service connection for a bilateral eye disability have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty in the United States Army from October 1966 to June 1968.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

These issues, among others, were previously before the Board in April 2018, when it was determined that a remand was necessary to ensure that VA fulfilled its duty to assist the Veteran, including obtaining outstanding medical records and VA addendum opinions.  The issues currently before the Board were readjudicated by the Agency of Jurisdiction (AOJ) in a September 2020 Supplemental Statement of the Case (SSOC) and recertified to the Board for further appellate consideration.

Service Connection – Bilateral Eye Disability

Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).

Congenital or developmental defects and refractive errors of the eyes, such as myopia and presbyopia, are not diseases or injuries within the meaning of the applicable legislation. See 38 C.F.R. § 3.303(c), 4.9 (2017); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996).  Also, VA's Office of General Counsel held in VAOPGCPREC 82-90 (July 18, 1990) (a reissue of General Counsel opinion 01-85 (March 5, 1985)) that a disease considered by medical authorities to be of familial (or hereditary) origin by its very nature preexists a claimant' s military service, but could be granted service connection if manifestations of the disease in service constituted aggravation of the condition.  Congenital or developmental defects, as opposed to diseases, could not be service-connected because they are not diseases or injuries under the law; however, if superimposed injury or disease occurred, the resultant disability might be service-connected.  Id.

Furthermore, myopia, more commonly known as nearsightedness, is defined as an error of refraction.  See Dorland's Illustrated Medical Dictionary 1094 (28th ed. 1994).  Presbyopia, which is more commonly known as farsightedness, is defined as the impairment of vision due to advancing years or old age.  Id. at 1349. Myopia, presbyopia, and astigmatism are refractive orders of the eyes that are not generally eligible for disability compensation.  38 C.F.R. § 3.303 (c) (2019).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted).

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have any specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159 (a)(2).

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board.  Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance).

If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value.

1. Entitlement to service connection for refractive error, mild dry eyes, and bilateral incipient senile cataracts, claimed as bilateral eye disorder. 

The Veteran asserts that he currently experiences a bilateral eye disability which is either caused or aggravated by his in-service experience of a “shower of fuel” in his eyes while loading a fuel tank.  See, March 2011 VA 21-4138 Statement In Support of Claim.

The Veteran was afforded his first VA examination for his bilateral eye disability in August 2011.  During this examination, the Veteran was diagnosed with refractive error, mild dry eyes, and bilateral incipient senile cataracts.  The examiner noted that the Veteran previously suffered from eye pain in May 2011 that resolved itself.  The examiner opined that it is at least as likely as not that the Veteran’s eye pain was caused by or a result of his dry eyes, and that the Veteran’s eye disabilities were also not caused by or a result of his military service, including the reported splash of gasoline in the Veteran’s eyes while in service.  The Board notes that the Veteran’s April 10, 1968, service treatment record reflects such occurrence as “gasoline in the eyes; irrigation of the eyes with 400 cc of sterile water; no pain reported.”  However, the examiner did not provide an adequate explanation in support of his negative nexus opinion, especially considering this fact.  Consequently, this led to the Board’s April 2018 remand. 

Following the Board's April 2018 remand, the Veteran was provided a full VA eye examination in January 2019.  The Board notes that it finds this examination in substantial compliance of its prior April 2018 remand directives, thus has attributed it with a high probative weight.  Stegall v. West, 11 Vet. App. 268 (1998).

Following a review of the complete record and an examination of the Veteran, the January 2019 VA ophthalmologist acknowledged the Veteran’s prior diagnoses of refractive error and bilateral incipient senile cataracts but commented that no mild dry eyes was noticed during his examination.  In terms of anatomical loss, the examiner reported that the Veteran does not have any such loss, including light perception or extremely poor vision or blindness in either eye, but acknowledged that the Veteran has reduction in visual acuity which he attributed solely to the Veteran’s refractive error diagnosis. 

Further, with regards to a nexus for the Veteran’s refractive error eye disability, the examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran’s eye disability is related to the Veteran’s military service, based on the following rationale: 

As per VBMS files review, previous c&p eye evaluation 2011 -review, veteran interview and ophthalmology evaluation: service treatment records -separation report of medical examination-<separation report of medical; examination 29 aug 1968 item #29 no eye trouble- visual acuity uncorrected 20/20 in both eyes far and near.  progress note with evidence of gasoline splash in the eye.  he was properly irrigated, no pain or any other complication. service treatment records are silent for complication or sequela after the gas incident. -upon today evaluation reduction in visual acuity is due to refractive error. veteran presents with hyperopia/astigmatism/presbyopia. **presbyopia is the normal loss os near focusing ability that occurs with normal aging in the eye, as we age there is a gradual thickening of the crystalline lens and loss of elasticity in the eye causing defective accommodation and inability to focus sharply at near vision.  it becomes apparent in the middle ages around 40 years.

Furthermore, the examiner noted that “[r]efractive error are to be considered congenital and developmental in origin.” 

He also reported that any loss of vision would be caused by or as a result of the Veteran’s refractive error and that his symptoms (bilateral eye pain 6/10 OD 3/10 OS) which lasted 30 days and resolved by itself, were also at least as likely as not (50 50 probability) caused by or a result of dry eyes.  Thus, the Board finds that even assuming that the Veteran presented with mild dry eyes at the time of his previous examination, this examiner does not believe that the Veteran has any vision loss that is attributable to this condition and that the eye pain he experienced in service is also not related to it based on the explanation provided.  

With respect to the Veteran’s senile nuclear sclerosis eye disability, the examiner made a finding of a negative nexus on the basis that this is to be expected in someone of the Veteran’s age (a 70 years old person), which can be corrected to 20/20 for both eyes, citing to medical studies which demonstrate that 95 percent of persons near 65 years or older will present some degree of crystalline lens opacification, producing light scattering and blurring of vision. 

As to the Veteran’s open angle glaucoma diagnosis, the examiner also opined that such disability is not related to the Veteran’s military service, including the Veteran’s report of the gasoline splash in his eyes, on the basis that “[G]laucoma is a neurodegenerative disease affecting the ganglionar cell with subsequent damage to the axonal fiber of the optic nerve.  it usual presents around 40 years of age or older, can have positive family history, is characterized by increase ocular pressure above 22 mm hg, increase c/d ratio, glaucomatous nerve damage and visual field peripheral defects.”  

Finally, with regards to the Veteran’s mild dry eyes diagnosis, the examiner reported that there is no evidence of dry eye at present based on an external slit lamp examination.  Further, that there are no findings of superficial scarring or effects on superficial conjunctival or corneal tissues and no abnormal fluorescein stating of cornea.

As the January 2019 examination was rendered after a review of the record, completion of a physical examination, and accompanied by full rationale which cites to medical principles and facts congruent with the evidence within the Veteran's file, the Board finds it highly probative and affords it significant probative weight. 

On the other hand, although the Board notes that the Veteran is considered competent and credible to report symptoms which he perceives through his senses, such as difficulty seeing and focusing on objects that are near to him or far away, he does not have the type of medical training necessary to attribute these symptoms to any specific medical disability or occurrence, including the “shower of fuel” in his eyes while in service, as he contends.  

By contrast, the January 2019 VA examiner is competent to do so, and the diagnoses of record pertaining to the eyes, hypermetropia, astigmatism, presbyopia, are refractive errors of the eyes, which are not diseases or injuries within the meaning of the applicable legislation.  38 C.F.R. § 3.303(c), 4.9.  There is also no indication that there was any superimposed injury or disease during service.  As noted by the examiner, following the splash of gasoline in the Veteran’s eyes while in service, his eyes were thoroughly irrigated with sterile water, and there was no subsequent complaint of eye irritation, including pain following this incidence, and at the time of his military separation. 

Further, the Veteran has also not shown any continuity of symptomology of his eye, post service, as all of the Veteran’s currently diagnosed eye disabilities were diagnosed in October 2010/August 2011, almost forty years post service, and the cause of the Veteran’s current vision acuity is reported by the January 2019 examiner as due to his refractive errors of the eye, which are congenital or developmental defects.  As to the Veteran’s other eye disabilities, the examiner has also supported his negative nexus opinion with persuasive medical evidence.

As such, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 

Consequently, the Board finds that the preponderance of the objective and probative medical evidence of record is against the Veteran's claim for service connection for refractive error, mild dry eyes, and bilateral incipient senile cataracts, claimed as bilateral eye disorder, and as such, his claim must be denied.

REASONS FOR REMAND

1. Entitlement to service connection for hypertension, secondary to exposure to herbicides, is remanded.

2. Entitlement to service connection for erectile dysfunction (ED) is remanded.

The Board finds the January 2019 VA examiner’s opinions with regards to these issues inadequate, particularly the respective nexus opinions finding a lack of nexus between the Veteran’s military service and his current disabilities of hypertension and erectile dysfunction, as secondary to his exposure to herbicides, specifically, Agent Orange. 

This is because the examiner appears to base his negative nexus opinions for direct service connection solely on a lack of evidence of complaints or treatments in the Veteran’s service treatment records (STRs) and the period within a year of his military discharge. 

On secondary service connection due to aggravation from the Veteran’s coronary artery disease, the examiner also did not provide a rationale, just a conclusory opinion that the Veteran’s conditions are “[n]ot pathophysiological related or related to exposure to herbicide in service.”

Therefore, the Board finds both negative nexus opinions inadequate, and as such, must remand for comprehensive opinions supported by medical facts or data.  When VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

3. Entitlement to service connection for a spine disorder is remanded.

The Veteran contends that at least one of his current low back diagnosed disabilities had its onset during his active duty service, particularly as a combat Veteran, and that such disability has continued since then to the present.  See, March 2011 VA 21-4138 Statement In Support of Claim. 

However, during the Veteran’s November 2016 VA examination for his spine, the examiner cites to a lack of documentation of a diagnosis of either degenerative disc disease and/or chronic myositis paralumbar spine muscle, and any related treatments in the Veteran’s service treatment records (STRs) as a basis for his  negative nexus opinion, even though he acknowledged the Veteran’s in-service report of recurrent back pain.

In short, the examiner failed to explain why the Veteran’s recurrent back complaints in-service are not related to any of his currently diagnosed back disabilities.  Therefore, the Board finds that the current VA medical opinion of record is inadequate to determine whether the Veteran’s current spinal disabilities are etiologically related to his military service.  38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 

4. Entitlement to special monthly compensation (SMC) based on loss of use of a creative organ is remanded.

The Board finds this claim is inextricably intertwined with the Veteran’s above service connection remanded claim for erectile dysfunction, since it is the basis for the loss of use of a creative organ. 

Accordingly, the Board will defer any action with respect to the Veteran’s SMC claim based on loss of use of a creative organ until the completion of the development of his remanded service connection claim for erectile dysfunction.  Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).

The matters are REMANDED for the following action:

1. Provide the Veteran with the opportunity to submit additional information and/or documentation in support of his service connection spine disorder claim, such as statements from his spouse or a friend evidencing such low back pain during and/or since his military service. 

2. Schedule the Veteran for a new examination from a VA examiner (other than the one that conducted the November 2016 examination) in connection with the Veteran’s claim for service connection for spine disability.  The Veteran's claims file, to include a copy of this remand, his treatment records for his spinal disabilities and any additional pertinent records submitted by the Veteran, should be provided to the examiner, and the examiner must indicate in his or her report that they were reviewed. 

The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran’s spinal (lumbar) disability had its onset in service or is otherwise related to his active military service, to include the Veteran’s combat mission in Vietnam and his in-service complaint of recurrent back pain. 

The examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.

A complete rationale must be provided for all findings and conclusions reached.  The examiner should discuss any lay statements made by the Veteran with respect to the etiology of his claimed spinal disability.  

The examiner must also sufficiently explain the medical significance (if any) of the absence of documented evidence of specific injury/trauma, including any supporting medical data or treatises with respect to whether the nature of the Veteran’s current spinal disability could or could not have resulted from his military service.  

If the examiner cannot provide an opinion without resorting to mere speculation, a complete explanation as to why this is so should be provided.  If the inability to provide a more definitive opinion is the result of a need for additional information, the additional information that is needed should be identified.

3. Obtain a VA examiner’s opinion with respect to the Veteran’s hypertension and erectile dysfunction disabilities.  The complete electronic record, including this Remand, must be made available to, and reviewed by the VA examiner prior to conducting the examination.  All necessary studies and tests should be conducted.  Thereafter, the examiner is requested to provide responses to the following questions: 

a)	Is it at least as likely as not (50 percent probability or higher) that the Veteran’s erectile dysfunction is etiologically related to the Veteran’s military service, to include his exposure to herbicides? 

b)	Is it at least as likely as not (50 percent probability or higher) that the Veteran’s hypertension is etiologically related to the Veteran’s military service, to include his exposure to herbicides? 

The examiner should note that the Veteran is presumed to have been exposed to herbicides, specifically Agent Orange, in-service.

c)	With regards to secondary service connection, is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is proximately due to or was permanently worsened (aggravated) by the Veteran's service-connected coronary artery disease (CAD) or any of his other service-connected disabilities (i.e. PTSD and GERD)? 

For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount (quantified if possible) of aggravation beyond the baseline symptomatology by the aggravation.

d)	With regards to secondary service connection, is it at least as likely as not (50 percent probability or greater) that the Veteran’s erectile dysfunction was caused OR permanently aggravated by his service-connected hypertension and/or coronary artery disease (CAD) or any of the Veteran’s other service-connected disabilities (i.e. PTSD and GERD)?  

A complete and clear rationale must be provided for all findings and conclusions reached.  If the examiner determines that an opinion cannot be provided without resort to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined.  

The AOJ should ensure that any additional evidentiary development suggested by the examiner(s) is undertaken so that a definite opinion can be obtained for all these examinations. 

 

 

Michael J. Skaltsounis

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J.B. King, 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.