Citation Nr: 21015651 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-42 900 DATE: March 18, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to a 10 percent rating, but not higher, for left eye pseudophakia with corneal and conjunctival scarring is granted. Entitlement to an initial compensable rating for dry eye syndrome is denied. REMANDED Entitlement to service connection for a right wrist disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the lumbar spine disability began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran’s left eye pseudophakia with corneal and conjunctival scarring results in visual acuity of 20/70. 3. The Veteran’s bilateral dry eye syndrome is not a lacrimal apparatus disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a 10 percent rating, but not higher, for left eye pseudophakia with corneal and conjunctival scarring are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.79, Diagnostic Codes 6027, 6066. 3. The criteria for a compensable rating for bilateral dry eye are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.79, Diagnostic Codes 6025, 6099. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1998 to April 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2015 and September 2016 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. In November 2019, the Board remanded the case for further development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. 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. Alemany v. Brown, 9 Vet. App. 519 (1996). 1. Entitlement to service connection for a lumbar spine disability. The Veteran contends his back pain began during service after a motor vehicle accident in 2000. His back slammed against the back of the seat, and he has experienced back pain since that time. The service treatment records show complaints of pain in the small of his back after a motor vehicle accident in a 5 ton truck, and soft tissue injuries were noted. See August 2000 service treatment record. The post-service records show back pain with flare-ups of pain radiating down the right leg. In a July 2017 treatment note, the Veteran denied any recent injury or strain. See July 2017 VA treatment record. At a May 2017 VA examination, the Veteran was diagnosed with thoracolumbar spondylosis. The examiner found the lumbar spine disability was less likely than not related to service. Although the Veteran was seen three times for a back strain, the separation examination did not contain any complaints of a back injury or persistent pain. The examiner reasoned that there were no other medical records showing any back disability since service. At the June 2019 Board hearing, the Veteran testified that he began to experience more back pain in 2011 after he purchased a piece of property and started to engage in more physical work. At a January 2020 VA examination, the Veteran was diagnosed with a lumbosacral strain and degenerative arthritis. The examiner found the lumbar spine disability was less likely than not related to service. Although the service medical records showed the Veteran was diagnosed with a muscle strain, the separation examination was silent for any back complaints. The examiner noted that the Veteran reported long-standing back pain, but the record did not show any treatment until December 2018, and the x-rays showed degenerative arthritis. Further, medical literature supports the fact that most back strains resolve without further sequelae and that lumbar strains do not cause lumbar degenerative arthritis. The Board notes that the examiner also indicated that the back disability was at least as likely as not incurred in or caused by service. However, the reasoning provided demonstrates this notation was a scrivener’s error. After a review of the evidence of record, the Board finds that entitlement to service connection for a lumbar spine disability is not warranted. The Board acknowledges the Veteran’s lay statements linking his lumbar spine disability to service, including reports of chronic back pain since service, and increased pain in the last 10 years. The Veteran is competent to report purported symptoms such as experiencing chronic pain during and after service, and the effect of that pain on his activities. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran’s detailed contentions regarding his in-service truck accident and symptomatology, as well as post-service symptomatology, have been considered. However, as a layperson, he is not competent to opine as to the etiology of any current disorder as that determination requires medical expertise. Jandreau v. Nicolson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Board finds it highly unlikely that the Veteran did not seek treatment for symptoms if he had ongoing symptoms since 2000 until the record reflects he reported such in 2017, 15 years after service separation. Thus, he is competent to report his symptoms but his statements regarding continuing symptoms are less probative. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006). The Board finds the January 2020 VA examiner’s medical opinion the most probative evidence of record. The examiner opined that the Veteran’s current lumbar spine disability was not etiologically related to service. The Board finds the examiner’s medical opinion well supported, including consideration of the Veteran’s service treatment records showing treatment for lumbar spine pain and a muscle strain. In this regard, the examiner explained that medical literature supports the fact that most back strains resolve without further sequelae and that lumbar strains do not cause lumbar degenerative arthritis. The January 2020 opinion demonstrates that the examiner considered the Veteran’s contentions regarding continuous symptomatology. The January 2020 opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion is also shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation as to why the Veteran’s contentions about the etiology of his lumbar spine disability is less likely than not related to service. The Veteran has not submitted any contrary objective medical evidence specifically suggesting that his lumbar spine disability was caused by service. The Board is not free to substitute its own judgment for that of medical experts. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board finds that the January 2020 opinion is highly probative. Therefore, the Board finds that the Veteran’s lay assertions in the present case are outweighed by the January 2020 VA medical examiner’s opinion, who determined that the there was no nexus between the Veteran’s current lumbar spine disability and service. The Board affords probative value to the separation reports which do not reflect any back pain. The Board finds it instructive that the clinician who conducted the Veteran’s separation examination found no current back trouble or sequelae since his in-service treatment. Therefore, as the clinician specifically addressed the current symptomatology, had the Veteran been experiencing chronic back pain, the clinician would have included such complaints in his findings. The Board finds it further instructive that first post-service medical record contained in the claims file shows the Veteran provided complaints of current medical conditions, but did not report any chronic back pain. Furthermore, there is no medical opinion of record relating any current lumbar spine disability to the Veteran’s service. The only evidence of a relationship between the Veteran’s lumbar spine disability and his service are his lay statements. The Board finds that the question regarding the potential relationship between any lumbar spine disability and the Veteran’s service to be complex in nature. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428 (2011), the Veteran is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran does not possess the medical knowledge to attribute any lumbar spine disability to his service and his contentions regarding this issue are not competent, and therefore not probative. Accordingly, the Board the preponderance of the evidence is against the claim for service connection for lumbar spine disability. The claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). 2. Entitlement to a 10 percent rating, but not higher, for left eye pseudophakia with corneal and conjunctival scarring. 3. Entitlement to an initial compensable rating for dry eye syndrome. The Veteran contends the bilateral eye disabilities warrant a higher rating. In an August 2020 rating decision, the Veteran was assigned a noncompensable rating for bilateral dry eye syndrome under Diagnostic Code 6025 with an effective date of June 20, 2019. The Board notes that the Veteran has a separate rating for the left eye scar that is no longer on appeal. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 83 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Both the former and revised criteria distinguish preoperative and postoperative cataracts. For preoperative cataracts, the former criteria instructed to evaluate based on visual impairment and the revised criteria instruct to evaluate under the General Rating Formula for Diseases of the Eye. For postoperative cataracts, both the former and revised rating criteria distinguish between pseudophakia and aphakia. The Board notes that the General Rating Formula for Diseases of the Eye instructs to evaluate a condition based on visual impairment or its rating criteria for incapacitating episodes. Thus, the primary difference between the former and revised criteria is consideration of incapacitating episodes. With regard to visual impairment, the amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. The General Rating Formal for Diseases of the Eye instructs to rate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. A 10 percent rating is warranted where there are documented incapacitating episodes requiring at least one but less than three treatment visits for an eye condition during the past 12 months. A 20 percent rating is warranted where there are documented incapacitating episodes requiring at least three but less than five treatment visits for an eye condition during the past 12 months. A 40 percent rating is warranted where there are documented incapacitating episodes requiring at least five but less than seven treatment visits for an eye condition during the past 12 months. A 60 percent rating is warranted where there are documented incapacitating episodes requiring seven or more treatment visits for an eye condition during the past 12 months. The rating of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). To determine the rating for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, visual acuity and visual field defects are evaluated separately, and then combined under the provisions of § 4.25. The rating of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76(b)(4). Subject to the provisions of 38 C.F.R. § 3.383(a), if visual impairment of only one eye is service-connected, the visual acuity of the other eye will be considered to be 20/40 for purposes of rating the service-connected visual impairment. 38 C.F.R. § 4.75(c). Diagnostic Code 6025 pertains to disorders of the lacrimal apparatus. A 10 percent rating is warranted for unilateral involvement and a 20 percent rating is warranted for bilateral involvement. Under Diagnostic Code 6066 for Impairment of Central Visual Acuity, vision of 20/70 in one eye (service-connected left eye) with vision of 20/40 in the other eye (non-service connected right eye is considered 20/40 for rating purposes) warrants a 10 percent rating. Turning to the relevant evidence, the VA treatment records show visual acuity of 20/60, at worst, with no visual field defects or incapacitating episodes. At a June 2015 VA examination, the Veteran reported difficulty reading with his left eye since cataract surgery in 2002. Corrected distance measured 20/40 or better. The pseudophakia, and corneal and conjunctival scarring did not cause any decrease in visual acuity or other visual impairment. There was no visual field defect or any incapacitating episodes. At a February 2016 VA examination, corrected distance measured 20/40. The pseudophakia, and corneal and conjunctival scarring did not cause any decrease in visual acuity or other visual impairment. The examiner noted visual fatigue, headaches, and intermittent blur when working on computers and reading. There was no visual field defect or any incapacitating episodes. At a January 2020 VA examination, the Veteran reported dryness, glare, and fluctuating vision. He treated the eye disabilities with several pairs of glasses to accommodate the pseudophakia and artificial tears for the dry eye syndrome. His corrected distance measured 20/40. The post-operative cataract caused a decreased in visual acuity with glare. There was no aphakia or dislocation of the crystalline lens. The bilateral dry eye syndrome also caused decrease in visual acuity, but it was not a lacrimal apparatus disorder. There were peripheral corneal opacities, conjunctival scarring, and surface irregularity. The corneal and conjunctival conditions were visually insignificant and did not cause a decrease in visual acuity. The impact of the scar was glare and blur due to more pronounced dry eye syndrome that interferes with computer work and driving at night. The examiner indicated that the current level of severity of the eye disabilities was moderate with a reduction in best corrected distance to 20/25 in the left eye. There was no visual field defect or any incapacitating episodes. Based on a review of the evidence of record, the Board finds that a 10 percent rating, but not higher, for the left eye pseudophakia with corneal and conjunctival scarring is warranted. The probative evidence of record, to include the Veteran’s VA examinations and his VA treatment records, reflect a decrease in visual acuity of 20/70 at the worst, which equates to a 10 percent rating. As the left eye did not demonstrate a greater decrease in visual acuity, a 20 percent rating is not warranted. Further, there is no evidence of incapacitating episodes or impairment of muscle function. In addition, the Board finds that a compensable rating for bilateral dry eye syndrome is not warranted. While the dry eye may have caused some decreased visual acuity, it was not a lacrimal apparatus disorder, as required for a compensable rating. Since bilateral dry eye syndrome are not due to a lacrimal apparatus disorder, a compensable rating is not warranted. Accordingly, the Board concludes that there is no basis for a rating higher than 10 percent for the left eye disability or a compensable rating for the bilateral dry eye syndrome. The Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating higher than 10 percent for the left eye disability and a compensable rating for bilateral dry eye syndrome, the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right wrist disability is remanded. The November 2019 Board remand specifically instructed the examiner that the Veteran is competent to report continuous right wrist symptomatology. At a January 2020 VA examination, the examiner diagnosed a right wrist strain. The Veteran reported worsening wrist pain since the in-service accident, especially at night and with prolonged typing. The examiner opined that the wrist disability was less likely than not related to service. The examiner noted that a review of post-service records did not indicate any ongoing treatment for a wrist or peripheral nerve disability, including carpal tunnel syndrome, until December 2018. In 2019, the Veteran was treated in occupational therapy and given a splint. Further, the separation examination was silent for a wrist or peripheral nerve condition. Therefore, the examiner explained that it was less likely than not that the Veteran’s current right wrist condition was incurred as a result of service. The Board finds the January 2020 VA examination incomplete, because the examiner based the opinion on the lack of documentation of ongoing right wrist pain and did not consider the Veteran’s lay statements of continuous symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner did not consider the Veteran’s lay contentions that his right wrist complaints have persisted throughout the years. Thus, the Board finds that a remand is necessary to provide the Veteran with a VA addendum opinion to determine the nature and etiology of his right wrist disability. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matter is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file, to specifically include Kaiser Permanente records. 2. Obtain an addendum to the January 2020 VA examination with an appropriate examiner to determine the nature and etiology of his right wrist disability. The Veteran should be scheduled for a physical examination if deemed necessary. The examiner should provide an opinion whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the right wrist disability had its onset during service or is otherwise etiologically related to active service, to include an August 2000 motor vehicle accident. The examiner should assume that the lay statements of record and June 2019 Board hearing testimony, to specifically include statements regarding continuous right wrist symptomatology since service, are credible for the limited purpose of providing the requested medical opinions. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Kass, 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.