Citation Nr: 21015842 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-57 523 DATE: March 18, 2021 ORDER Entitlement to service connection for bilateral glaucoma is denied. Entitlement to service connection for bilateral loss of vision, to include retinal detachment, is denied. Entitlement to service connection for hypothyroidism, to include residuals status post total thyroidectomy, is denied. Entitlement to service connection for diabetes mellitus type II is denied. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that there was an in-service event or injury to which the current bilateral glaucoma or retinal detachment/loss of vision may be related, and there is no evidence to show the Veteran continuously experienced any eye disorder since service, or manifest to a compensable degree within one year of service separation. 2. There is no in-service event to which a current hypertension disorder, hypothyroidism disorder, or diabetes mellitus type II may be related. Symptoms of hypertension, hypothyroidism, and diabetes mellitus type II did not start in service, were not continuous since service, or manifest to a compensable degree within one year of service separation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral glaucoma have not been met. 38 U.S.C. §§ 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for bilateral loss of vision, to include retinal detachment, have not been met. 38 U.S.C. §§ 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for hypothyroidism, to include residuals status post total thyroidectomy, have not been met. 38 U.S.C. §§ 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1960 to May 1962. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision dated August 2015. By way of history, in an April 2019 Board decision, the Veteran’s claims for service connection for bilateral glaucoma, tinnitus, hypertension, diabetes mellitus type II, a thyroid condition, bilateral loss of vision, and for residuals of frostbite of the bilateral feet and bilateral hands were remanded. The remand directives included requesting the National Personnel Record Center to search for the reported medical records from Grafenwoehr Training Center for the Veteran, and to obtain his VA medical records. In December 2019, the Veteran was sent a letter that the reported service medical records were requested, as well as any other records in general; but informed him that the reported records cannot be located and therefore are unavailable for review. The RO let him know that all efforts had been exhausted and any further attempts to obtain the reported records would be futile, but he could submit any records he might have. Further, records from the VA medical center between December 2017 and December 2018 were obtained; it was noted in December 2017 that he was establishing care because his VA representative told him to do so for his claims that he is appealing; therefore, the Board finds there are no earlier medical records from VA. As such, the Board determines there has been substantial compliance with the 2019 directives. Following development, in a December 2020 rating decision, the claims for service connection for bilateral upper extremity and bilateral lower extremity cold injury residuals, and for bilateral tinnitus were granted. As such, these claims are no longer in front of the Board, though the Veteran is within the one-year time frame to appeal the ratings awarded in that decision if he wishes to do so. The Board also acknowledges that in the November 2017 Form-9, the Veteran requested a Board hearing. However, in February 2019, the Veteran's representative submitted a written statement that he was withdrawing his request for a Board hearing. As such, the Board may proceed. The Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Elements of service connection may also be established by showing continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating “(1) that a condition was ‘noted’ during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316 ; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). However, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, hypertension, diabetes mellitus, and endocrinopathies (such as hypothyroidism) are all explicitly recognized as chronic. The Veteran’s eye conditions are not. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Id. 1. Service connection for bilateral glaucoma and vision loss The Veteran contends that he has bilateral glaucoma and bilateral loss of vision, to include retinal detachment, that is related to service. Specifically, he has argued that while training in Germany, an aiming stick struck his eye and that is what caused his current eye disorders. First, his private records that he submitted from October 2013 through November 2014 noted a diagnosis history for glaucoma and senile cataracts in October 2013. The examination in October 2013 marked his eyes as “EOMI” which means his extraocular movements were intact. In November 2013, he reported for his annual diabetes optometry appointment and reported no complaints with his vision. He self-reported that he has a distant history of trauma in the left eye while in the military. He was seen later that day by his ophthalmologist for his glaucoma, where he reported decreased vision in the left eye. He denied any pain, discomfort, floaters, or flashes. Following examination, it was noted he had a history of relative afferent pupillary defect in the left eye; his cornea was clear in the right eye but a mild haze nasally in the left eye; he had posterior detachment (PVD) in both eyes, but his periphery was within normal limits without retinal holes or tears or detachment in either eye. The assessment was glaucoma with a history of diabetes and cataracts in both eyes. In December 2013, it was noted his left eye was worsening and he needs a glaucoma specialist. However, although the physicians note the Veteran’s report of an eye injury from service, there is no opinion that any of his current eye disabilities are due to the alleged injury, nor is there any evidence indicating the notation of this injury came from anywhere other than the Veteran’s own self-reported history. Further, there are no other medical records in the file, and the Board notes the Veteran was advised and provided the opportunity to submit any and all evidence, to include his medical records, to support his claims. Based on the available records, the Veteran was “initially seen for testing in [March 1999]” for hearing and then returned for a followup to the hearing issues in 2000 and not again until 2003. He has not provided these records or requested VA to retrieve these records for him; nor does the record indicate these records are related to anything other than his hearing. Next, his service treatment records (STRs) do not document any treatment, complaints, or diagnoses related to his eyes in service. Rather, in his April 1962 report of medical history at separation from service, the Veteran wrote “my health is very good.” He also marked “no” to any eye trouble. He also marked “no” to the question of ever having had an illness or injury other than those already noted and “no” to having been treated at a clinic or physician or other practitioners within the past 5 years” – which contradicts his current reports that he was seen by a clinic and a field physician for the eye injury. The clinical evaluation was also noted as “normal” for all conditions, including his eyes, pupils, and ocular motility; and it was noted that he did not have any defects or diagnoses. An April 1961 examination found his visual acuity to be 20/20 in both eyes, and his field of vision was normal, and in June 1962, he was transferred to standby reserve (but no mention of any disabilities). Finally, his records show he was seen by preventative medicine and needed serology at the Communicable Disease Treatment Center, but nothing was indicated as to his eyes or having an eye injury. Further, there is no other evidence of record indicating his current eye disabilities are due to service. The probative evidence does not show that the Veteran was treated for an eye disorder within one year of service. Rather, in April 1971 – less than 10 years since separation from service – the Veteran re-applied to VA counseling for vocational and education services requesting on-the-job training to be a “compositor” and he was deemed suitable. It was noted he had utilized his Chapter 34 benefits in 1968, as well as utilized on-the-job training as a card reproducer, and was requesting another opportunity to continue his training in the printing industry as a journeyman or compositor. Importantly, he explicitly “indicated that he did not have any disability, nor had he applied for disability compensation.” Further, the Board notes that a compositor is “a person who arranges the text and pictures of a book, magazine, or newspaper before it is printed” (https://www.collinsdictionary.com/us/dictionary/english/compositor) and if the Veteran had had an eye injury/loss of vision, this likely would have been indicated as this type of job is a visual one. Further, as noted above, his private treatment records document a diagnosis of glaucoma, senile cataracts, and a hazy left eye cornea beginning in 2013, but there is no other evidence nor has the Veteran argued he was treated for these conditions prior to these dates. Therefore, any contentions that he was treated for any kind of eye injury or eye disorder soon after discharge from service, and continuously since, lacks credibility. This evidence weighs against his claim. That notwithstanding, the Veteran contends that his eye was injured when it was struck with an aiming stick in 1961 when he was training in Germany in Grafenwoehr and was treated by a medic and then had follow-up treatment at a clinic there. As such, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. 49, 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran is competent to report that he went to a clinic and that he had an eye injury and received treatment for an injury. However, there is simply no indication of an eye injury in service; the Veteran himself marked “no” to having any eye trouble on his separation examination in 1962; the clinician during the separation examination marked his eyes to be normal with no injury noted or reported; and he denied having any disabilities within the first 10 years of service when he applied for VA Chapter 34 benefits. Therefore, while the Board recognizes the Veteran’s assertions that his eye disabilities are related to service and is competent to testify as to events that occurred in military service, the Veteran is not competent to conclude that any condition he was diagnosed with in 2013 is connected to his service. Although lay persons are competent to provide opinions on some medical issues, the specific disabilities in this case, ocular issues, fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Ocular issues require specialized training and medical diagnostic testing for a determination as to diagnosis. There are many different possible ocular issues, and a layperson is not competent to diagnose among them or to provide an etiology. In addition, the Veteran is not competent to opine that his current diagnoses for glaucoma and visual loss are due to an event, injury, or disease during service as he has not been shown to have the medical expertise to provide such an opinion. Therefore, the Board finds that the Veteran’s statements of record cannot be accepted as competent evidence sufficient to establish service connection for his eye disabilities. Further, there is no competent evidence of record showing a possible link between the Veteran’s current eye disabilities and service, nor has the Veteran provided such. To the extent that the Veteran has argued that his private treatment records noting the history of trauma in the left eye while in the military resolves reasonable doubt in his favor, the Board affords this medical notation no probative weight, as there is no evidence of an in-service injury. As noted above, the Veteran’s STRs show no injury, incident or accident involving his eyes. Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board acknowledges the Veteran’s representative’s argument that there have been no VA examinations regarding his claims and that “it is not clear…whether all of his treatment records have been obtained” (see February 2021 IHP). First, the Board discussed the alleged missing service records above, and finds that there is no evidence indicating that there are any records missing, but rather that they do not exist as VA requested the specific records alleged missing as well as any other general records pertaining to this particular Veteran and it was deemed none were found. Further, the Board finds that an examination for the eye disabilities is not necessary. Even though there are diagnosed disabilities, there is no persuasive evidence establishing an in-service event or continued symptomatology from service or any indication the claimed condition is related to service to warrant a medical examiner’s nexus opinion. See 38 U.S.C. § 5103A(d); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service connection requires a nexus between a diagnosed disability and service. See 38 C.F.R. § 3.303. Here, there is simply no persuasive evidence or indication of an in-service cause or reported injury to the eye(s). There is no probative indication that any current eye disabilities may be associated with his service. There is no credible lay evidence of continuity of related symptomatology or competent evidence suggesting a link between his service and his eye disabilities. In these circumstances, there is no need for VA examinations. As such, VA examinations and medical opinions are not required in connection with the eye disability claims. The claims for service connection are denied. In reaching this conclusion, the Board considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. 2. Service connection for hypertension, hypothyroidism, and diabetes mellitus The Veteran contends that he has hypertension, hypothyroidism, and diabetes mellitus type II (DMII) that is related to service. His private and VA treatment records document a diagnosis of hypertension, hypothyroidism, and DMII. First, as to hypertension, his private records that he submitted from October 2013 through November 2014 noted a diagnosis for hypertension and DMII in October 2013. The records also noted he had papillary thyroid cancer and a thyroidectomy in October 2011. However, there are no other medical records in the file, and the Board notes the Veteran was advised and provided the opportunity to submit any and all evidence, to include his medical records, to support his claims. Next, his STRs do not document any treatment, complaints, or diagnoses related to hypertension, hypothyroidism, or DMII from service. Rather, in his April 1962 report of medical history at separation from service, the Veteran wrote “my health is very good.” He also marked “no” to high or low blood pressure, sugar in his urine, cyst or growths, gain or loss of weight, and no frequent urination. He also marked “no” to the question of ever having had an illness or injury other than those already noted. The clinical evaluation was noted as “normal” for all conditions, including his endocrine system or heart or vascular systems. The clinician also marked that the Veteran’s blood pressure was 128/82; and it was noted that he did not have any defects or diagnoses. His records also show he was seen for preventative medicine and needed serology at the Communicable Disease Treatment Center, but nothing was indicated as to high blood pressure, thyroid issues, or DMII. Finally, his March 1962 urine tests also were noted to have a normal range of specific gravity, and it was negative for albumin and sugar. Further, there is no other evidence of record indicating any of these conditions are due to service. The probative evidence does not show that the Veteran was treated for hypertension, his thyroid, or DMII within one year of service. His private treatment records document a diagnosis of hypertension and DMII beginning in 2013, and the thyroidectomy in October 2011, but there is no other evidence nor has the Veteran argued he was treated for these conditions prior to these dates. Therefore, any contentions that he was treated for hypertension, his thyroid, or his DMII soon after discharge from service, and continuously since, lacks credibility. This evidence weighs against his claim. In fact, unlike other claims he has filed, the Veteran has made no specific allegations of in-service disease or injury with regards to these claims. The evidence does not show nor has the Veteran alleged that he had hypertension, or even elevated blood pressure, in service. A diagnosis of hypertension is made when the average of 2 or more diastolic measurements on at least two separate visits are greater than 90 mm Hg or when the average of multiple systolic blood pressure readings on two or more occasions are consistently greater than 140 mm Hg. This was not shown during service or within one year of service; rather, his blood pressure at separation was 128/82. Similarly, the Veteran has not argued or provided evidence indicating his hypothyroidism or DMII were due to service other than submitting a claim for service connection. Regardless, the Veteran is not competent to opine that his current diagnoses for hypertension, hypothyroidism, or DMII are due to an event, injury, or disease during service. He has not been shown to have the medical expertise to provide such an opinion. Further, there is no competent evidence of record showing a possible link between the Veteran’s current hypertension, hypothyroidism, or DMII. The Board acknowledges the Veteran’s representative’s argument that there have been no VA examinations regarding his claims, but the Board finds that examinations are not necessary in this case. Even though there are diagnosed disabilities, there is no persuasive evidence establishing an in-service event or continued symptomatology from service to warrant a medical examiner’s nexus opinion. See 38 U.S.C. § 5103A(d); see also McLendon, 20 Vet. App. 79. Here, there is simply no persuasive evidence or indication of an in-service cause for hypertension, hypothyroidism, or DMII. There is no probative indication that these disabilities may be associated with his service. There is no credible lay evidence of continuity of related symptomatology or competent evidence suggesting a link between his service and his hypertension, hypothyroidism, or DMII. Despite the Veteran and his representative stating the etiology of the diseases occurred in service, this cannot be given weight as the etiology of these conditions cannot be diagnosed by a layperson. Jandreau, 492 F.3d 1372, 1377. In these circumstances, there is no need for VA examinations. As such, VA examinations and medical opinions are not required in connection with these claims. Therefore, the claims for service connection are denied. 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 claims, that doctrine is not applicable. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.