Citation Nr: 21015780 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-10 677 DATE: March 18, 2021 ORDER Entitlement to service connection for a right eye disability to include sub-macular cysts of the right eye, a macular hole, cataracts, and dermatoheliosis of the right and left upper eyelids, is denied. FINDINGS OF FACT A right eye disability manifested more than one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for a right eye disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1970 to May 1976. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in January 2019, and the transcript is of record and now part of the claims file. The Board remanded the issues on appeal for additional development in October 2020. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board points out the claims file contains a November 2020 letter from the Veteran’s attorney-representative listed in the header of this decision that stated that he represented the Veteran only for the issue noted above, but then ending his letter indicating that he was withdrawing as representation. The Board acknowledges the seeming confusion but also notes that the Veteran’s attorney had submitted a substantial brief in support of the Veteran’s claim only three weeks prior. A review of this information leads the Board to the conclusion that the attorney listed above remains as the representative of the Veteran for this issue on appeal. In any event, the Board also notes this Veteran’s attorney did not follow the procedures outlined in 38 C.F.R. § 20.1305 necessary to withdraw from representation, and as such, the attorney listed above remains the Veteran’s only authorized representative. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection for Right Eye Disability Legal Criteria for Service Connection 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, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’’ in order to prevail.” 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. Evidence and Analysis – Right Eye Disability The Veteran is asserting that his right eye disability originates during his military basic training when he was learning to fire the M-16 rifle on a rifle range. The claims file includes a buddy statement provided in May 2013 from someone who was in basic training with the Veteran in February and March 1970 and remembers the Veteran “getting hit in the head and his right eye when his rifle had a kickback during a rapid fire exercise.” This buddy also said he could not recall the extent of any injury or treatment at the time, and that at the time, he didn’t think the injury was anything to worry about at the time. The Veteran’s service treatment records include a December 1969 pre-induction examination and a December 1975 separation examination. Those examinations and the remainder of any active service or reserve service treatment notes are silent for any eye complaints outside of May 1973 treatments for left eye conjunctivitis, which was treated with topical antibiotics. The service medical provider at the time indicated that the conjunctivitis condition resolved without any permanent problems. After leaving active service in May 1976, there is no medical evidence relating to the Veteran’s eyes until almost 33 years later. The Veteran received private eye care and examinations beginning in January 2009 from Kaiser Permanente, his health care provider at the time. The January 2009 eye examination, by an optometrist, diagnosed a macular defect but also stated there was no evidence or history of any eye trauma or eye surgery. The Veteran received a comprehensive physical examination in June 2010 and neither the Veteran or the examiner made any mention of eye problems or complaints. In March 2011, Dr. T.L., an optometrist, noted mild cataract development in each eye and a macular drusen in the right eye. After a referral for possible macular degeneration, Dr. K.R. noted a macular defect in the right eye and cataract development in each eye, along with a fundoscopic examination revealing a macular scar or cyst in the right eye. The Veteran received a December 2011 VA eye examination from a VA-contracted ophthalmologist. This examiner reviewed the Veteran’s entire claims file, and after examination, diagnosed dermatochalasis of both upper eyelids, cataracts in each eye, a sub-macular cyst of the right eye, and unspecified macular degeneration in the right eye. This VA examiner provided an opinion for service connection, saying the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that the Veteran’s current ocular conditions have no relationship to the ocular conditions during his active service. The examiner noted the persistent ocular infections in active service that resolved with no further complications from May 1973. The examiner also stated that the dermatochalasis, cataracts, and macular degeneration are at least as likely as they are not associated with the aging process and not to any event from active service. The Veteran continued to receive physical examinations and periodic eye examinations. In May 2012, the Veteran received a comprehensive annual physical examination, and neither the Veteran nor the physician examiner noted any eye problems. The Veteran received an eye examination focused on his left eye in October 2017 for a separate claim relating to possible diabetes, but no mention of right eye disease or conditions was made in that examination. The following month, the Veteran received another eye examination from a different optometrist who noted “macular atrophy in the shape of a macular hole with … changes in the right eye.” This private examiner also noted cataracts and dermatochalasis in each eye. VA treatment notes from February 2020 note the presence specifically of a macular hole, though not macular degeneration, and that the Veteran said he has a traumatic brain injury from a motor vehicle accident. Cataracts and astroid hyalosis were noted and considered to be stable. All of the medical providers referred to the Veteran’s right eye diagnoses as age-related, without further comment. VA provided another eye examination by a VA optometrist for the Veteran’s claim in January 2021. This examiner reviewed the Veteran’s entire claims file, and after examination, diagnosed a macular hole in the right eye, dermatochalasis of both upper eyelids, posterior subcapsular cataract in the right eye, astroid hyalosis of the left eye, and preoperative cortical cataracts in the periphery of each eye. The examiner found a contraction of the visual field in each eye but not a complete loss of the visual field in either eye. The Veteran has not had any incapacitating episodes attributable to an eye condition in the last 12 months. The examiner noted specifically that there is no diagnosis of macular degeneration in either eye because there are no signs, symptoms, or findings to support a diagnosis. This VA examiner provided an opinion for service connection, saying the claimed condition was less likely than not, less than 50 percent probability, incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that the Veteran’s current ocular conditions have no relationship to the claimed incident or conditions during his active service. The examiner discussed in great detail the Veteran’s eye conditions, to include the Veteran’s history and his statements that a gun recoil injury from firing a military rifle during active service caused macular degeneration. The examiner noted there is no macular degeneration and the correct medical diagnosis is a macular hole, described as a small break in the macular in the right eye, in the center of the retina. The macular hole was noted to cause blurred and distorted central vision, and commonly affects people over the age of 55, with the vast majority of cases developing spontaneously without any obvious cause. The examiner noted there are several conditions that can increase the risk of a macular hole developing, to include vitreous traction, injury or trauma, diabetic eye diseases, a high degree of myopia, macular pucker, essentially the formation of a scar tissue layer over the macula, and retinal detachment. The examiner then addressed the specific theory of the Veteran, that the rifle recoil from a service incident in 1970 caused his macular condition in the right eye. The examiner noted, speaking in general terms, that a traumatic macular hole is a full thickness defect of the neuroretina within the fovea, and occurs after a mechanical ocular blunt force injury. It would cause major visual loss directly and would be associated with retinal edema and hemorrhage, vitreous hemorrhage, choroidal rupture, photoreceptor damage, retinal tears and dialysis, or retinal detachment. The examiner then related that a traumatic macular hole is usually related to sports, recreation or work, often by the impact of ball at high speed, or blows with kicks or fists. The macular hole then appears immediately after the injury in most cases, or at the latest, within weeks of the trauma. The examiner then pointed out that the gap in time here in this case is 44 years between the service incident and the earliest possible diagnosis of the macular hole; had the rifle recoil injury caused any macular damage, it would have occurred within several weeks of the original injury back in 1970. The examiner then addressed the other eye conditions, pointing out they do not derive from traumatic injury but rather from periocular aging, which causes weakening of the connective tissue and loss of elasticity. The examiner noted this was the likely cause of the dermatochalasis and the cataracts. The examiner also addressed the astroid hyalosis, noting that trauma is not known as a cause for that condition, and in any event, does not affect the vision, thought the floating opacities in the vitreous humor can be personally annoying. The Board finds the December 2011 and January 2021 VA examination reports and opinions to be of great probative value. Indeed, the examiner considered the Veteran’s contention, the claims file, and clinical medical evidence before providing a negative opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiner’s negative opinion was supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran’s contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). The Board notes that a previous adjudication of this claim by the United States Court of Appeals for Veterans Claims (Court or CAVC) noted the December 2011 examiner had stated he could “only speculate that the traumatic injury is as likely as it is not the source of the development” of a right eye disability,” and remanded to the Board for consideration of that statement in that examiner’s opinion. To respond directly to the Court’s point, the reason for the speculation per that examiner is that there is no medical record of the service eye injury to evaluate, and therefore, the examiner was unable to say whether the Veteran’s theory of the cause of his right eye disability was the rifle recoil incident from service. The use of the words “possible,” “may,” or “can be” make a doctor’s opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127–28 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)) (medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor’s statement framed in terms such as “could have been” is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (“may or may not” language by physician is too speculative). It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). The Board also notes the guidance of Jones v. Shinseki, 23 Vet. App. 382, 390-91 (2010) (explaining that an inconclusive medical opinion must be “adequately explained by the examiner or otherwise apparent in the Board’s review of the evidence”). The Court in that case stated “it must be clear, from either the examiner’s statements or the Board decision, that the examiner has indeed considered ‘all procurable and assembled data,’ by obtaining all tests and records that might reasonably illuminate the medical analysis.” Id. at 390. Here, however, the problem is that there is no medical record from service of the rifle recoil injury that allegedly occurred in 1970, or leaving service in May 1976, and there is not one medical record or piece of evidence until 2009 relating to any right eye disability. The examiners previously discussed have stated that any traumatic injury to the eye would have manifested in weeks, and not over a gap of 44 years. The Board acknowledges that the Veteran is competent to testify as to his beliefs that his disabilities are related to service, to include the testimony provided in a hearing with the undersigned VLJ in January 2019. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; “[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran is competent to testify about his symptoms relating to his claimed right eye condition. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of a right eye condition. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value as to the etiology of his claimed right eye condition. The Board notes in particular the Veteran’s statement during his Board hearing that he “forgot” about his active service eye injury involving the service rifle until several decades later. The Board also notes from VA treatment notes that he has also attributed his eye problems to diabetes or a traumatic brain injury from a motor vehicle accident, inconsistencies which go to undermine the Veteran’s credibility. See Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam). In addition, the Board finds that the gap in time between the Veteran’s last date of active service, in May 1976, to his initial evaluation by any medical provider regarding a right eye condition in January 2009 to be probative of a lack of nexus between the diagnosed current disability and active service. A negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There are no competent medical opinions of probative value in favor of a positive nexus to active service from any VA examiner or medical treatment provider from any source. Upon review of the record, the Board concludes that entitlement to service connection for a right eye disability is not warranted. The Board notes current diagnoses of dermatochalasis of both upper eyelids, cataracts in each eye, a sub-macular cyst of the right eye, and a macular hole in the right eye, and thus the requirement for a current disability is shown. The Board acknowledges the Veteran’s contentions, and the Veteran’s post-service statements are noted. However, the service medical records to include the separation physical of December 1975 are silent for any existing eye or related injury at the time of separation, and, and there is no competent evidence to tie the current assertion to any in-service disease or injury. The Board thus finds the Veteran fails the third prong of the test for entitlement to direct service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran’s claimed right eye disability was not incurred in service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a right eye disability on a direct basis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.