Citation Nr: 21015228 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 10-06 536 DATE: March 17, 2021 ORDER Entitlement to service connection for residuals of a flash burn to the eyes for accrued benefits/substitution purposes is denied. REMANDED Entitlement to service connection for pneumonia is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. FINDING OF FACT The Veteran does not have diagnosed residuals of a flash burn to the eyes. CONCLUSION OF LAW The criteria for service connection for residuals of a flash burn to the eyes have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1971 to august 1974. The Veteran died in November 2014. The Appellant is the surviving spouse of the Veteran. This case is on appeal to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in February 2009. In April 2020, the AOJ accepted the Appellant as a substitute for the Veteran for purposes of adjudicating the service connection issues on appeal to completion. This case was most recently before the Board in October 2020, at which time it was remanded to the AOJ for additional development. With respect to the claim for residuals of a flash burn, the Board finds that the AOJ substantially complied with remand directives, and the issue is ready for adjudication. Unfortunately, as explained in more detail below, the remaining issues must again be remanded. 1. Entitlement to service connection for residuals of a flash burn to the eyes Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110. Service connection can be established by evidence that shows “(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-the so-called “nexus” requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Generally, refractive errors are not diseases for VA compensation purposes. 38 C.F.R. §§ 3.303 (c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Refractive errors are defined to include astigmatism, myopia, hyperopia, and presbyopia. In the absence of a superimposed disease or injury, service connection may not be granted for refractive errors of the eyes, even if visual acuity decreased in service, as these are not diseases or injuries within the meaning of applicable legislation relating to service connection. Thus, VA regulations specifically prohibit service connection for a refractive error of the eye unless such a defect was subjected to a superimposed disease or injury that created additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (July 18, 1990). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may only be awarded to an applicant who has a disability existing on the date of application or at any time during the appellate period, not for past disability. Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997)); Romanowsky v. Shinseki, 26 Vet. App. at 294. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Turning to the evidence, the Board initially notes that the Veteran’s service treatment records (STRs) are silent for any diagnosed eye disabilities or residuals from a flash burn. At an entrance examination in May 1971, a clinical evaluation of all the Veteran’s body systems was normal. Clinical evaluations of all the Veteran’s body systems were also normal at examinations in September 1971 and at separation in July 1974. At each examination, vision in both eyes was noted to be 20/20. The Veteran was afforded a VA examination for non-service connected pension in February 2009. He reported experiencing a flash burn to the left eye in 1972, and reported that he lost fifty percent of his vision in the left eye and wore glasses. The examiner did not diagnose any eye disability. The Veteran underwent a VA examination for eye conditions in August 2013. He was diagnosed with flash burns or welders’ keratitis, neoplasm of the retina of the right eye, and dermatochalasis. The examiner indicated that the Veteran’s flash burn healed without sequelae and the flash burn did not cause a problem in the left eye in 1972. The Veteran’s droopy eyelids were surgically improved, and were unrelated to his time in the military. They were genetically droopy. A lesion of unknown etiology or pathology was in the right eye. The Veteran’s best corrected vision was 20/25 in each eye. He had uncorrected vision in the left eye of 2/100. The Veteran did not have light perception only, extremely poor vision, or blindness in either eye. A supplemental opinion was provided later in August 2013. The examiner reviewed the physical examination and findings from the earlier August 2013 examination, and opined that it is less likely than not that there is a nexus between the Veteran’s eye conditions and flash burns. The examiner indicated that the Veteran’s flash burns healed without sequelae. An opinion was obtained in July 2020. The examiner reviewed relevant records, and explained that flash burn keratitis heals rapidly, usually within 72 hours, and does not commonly cause scarring or long-term damage. Subsequent eye examinations revealed no scarring or damage to the corneas. Uncorrected visual acuity is not a good source to determine the health of the eyes, and given that the Veteran had corrected vision to 20/25 suggests that the difference in acuity between the left and right eye was simply due to his refractive error. Therefore, it was less likely than not that the Veteran had a residual eye disability or vision condition due to his flash burn keratitis in service. Another opinion was provided in November 2020. The examiner indicated that the Veteran’s retinal lesion was pretty consistent, and can be caused by head trauma, pathologies, and congenital conditions. However, there was no indication of a military head trauma considerable enough to leave a retinal scar. The records reviewed indicated that the Veteran denied head trauma. The retinal lesion had a pathology of unknown etiology, but was less likely caused by flash burns. The examiner explained that a flash burn can affect the anterior segment of the eye, but it would less likely impact the retina. As outlined above, the pertinent legal criteria require that the evidence establish a disability. This criterion is not met in this case. The competent evidence shows that the Veteran did not have a diagnosed disability related to a flash burn, and did not have one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). First, the February 2009 examiner did not diagnose a residual eye disability, and the August 2013 examiners concluded that the Veteran’s flash burns healed without sequelae. Second, when taken together, the July 2020 and November 2020 examinations indicate that a flash burn affects the cornea, not the retina, and the Veteran was not diagnosed with a corneal disability, such as scarring. Third, the July 2020 examiner explained that flash burns commonly heal within 72 hours. While individually, each examination had some limitations by not addressing certain diagnoses, the record as a whole now contains opinions addressing all the Veteran’s eye diagnoses. The competent evidence thus shows no residuals from the Veteran’s flash burns. Without a disability, service connection may not be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Therefore, the Board finds that service connection for residuals of flash burns is not warranted. While the evidence establishes that, during the appeal, the Veteran had droopy eyelids, refractive errors, and a retinal lesion, the competent evidence shows that the Veteran’s diagnoses are associated with his in-service flash burn such that they may be considered residuals. First, The August 2013 examiner indicated that the Veteran’s eyelids were genetically droopy and unrelated to flash burns. In addition, given that the July 2020 examiner explained that flash burns affect the cornea, the Board can conclude that there is not enough competent evidence to establish a nexus between droopy eyelids and service. Second, the Veteran’s refractive error is not a disease or injury within the meaning of applicable legislation for VA compensation purposes. No examiner diagnosed the Veteran with eye disability related to the flash burn, and no pathology was noted. Moreover, the July 2020 examiner indicated that the Veteran’s difference in visual acuity between the left and right eye was due to refractive error, and not the flash burn. Therefore, the Board finds that the competent evidence is against a finding that refractive error was subject to a superimposed disease or injury that caused additional disability. Finally, the competent evidence shows no nexus between the Veteran’s retinal lesion and the flash burn. Specifically, the November 2020 examiner provided a negative opinion indicating that the flash burn impacted a different part of the eye. While the record shows that the Veteran thinks he had an eye disability related to in-service flash burns, there is no evidence to suggest that the Veteran or Appellant is competent to diagnose flash burn residuals or provide a nexus opinion. The issue is medically complex, as it requires the interpretation of symptoms and medical findings by a trained medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given that the medical professionals have not provided any diagnosed residuals in the available records, the Board must rely on the competent medical evidence before it in concluding that the criterion of a current disability is not met. The Board gives the competent medical evidence, including the February 2009, both August 2013, the July 2020, and November 2020 VA examinations, significant weight in this regard. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).   REASONS FOR REMAND 1. Entitlement to service connection for pneumonia is remanded. The Board is obligated to ensure AOJ compliance with remand directives. Stegall v. West, 11 Vet. App. (1998). The October 2020 remand required the AOJ to obtain a medical opinion regarding the Veteran’s claim for pneumonia because the May 2020 VA opinion was based on an inaccurate factual premise. A review of the record shows that an opinion regarding the Veteran’s pneumonia was not obtained. Therefore, another remand is required. 2. Entitlement to service connection for COPD is remanded. The December 2020 VA opinion, which was provided after the October 2020 Board remand noting that an April 2014 opinion was too vague for adjudication, does not address the Veteran’s contention. The Veteran submitted numerous articles indicating specific chemicals and nerve agents to which he was exposed in service, and argued that his shortness of breath and COPD are related to the chemicals. Therefore, a remand is necessary for an opinion addressing this evidence and contention. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate VA examiner to determine the etiology of the Veteran’s pneumonia. Following review of the record, the examiner should respond to the inquiry below. (a.) The examiner must identify any residuals of the Veteran’s in-service pneumonia, bronchitis, or wheezing. (b.) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s pneumonia is etiologically related to or caused by service, including in-service pneumonia or wheezing. 2. Obtain an opinion from an appropriate VA examiner to determine the etiology of the Veteran’s COPD. Following review of the record, the examiner should respond to the inquiry below. (a.) The examiner must review and address the articles submitted by the Veteran regarding the specific chemicals and nerve agents he was exposed to in service, and note that the AOJ indicated that the Veteran was “confirmed to have been exposed to chemicals.” (b.) The examiner must specifically address the contention that the Veteran’s COPD is related to his handling, firing, storing, and moving chemicals and nerve agents during service. (c.) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s COPD is etiologically related to or caused by service, including in-service pneumonia, bronchitis, wheezing, or exposure to nerve agents or chemicals. A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. (Continued on the next page) T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, 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.