Citation Nr: 21021375 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-17 972 DATE: April 12, 2021 ORDER Service connection for left eye optic neuropathy with optic atrophy is granted. FINDINGS OF FACT 1. The Veteran engaged in combat with the enemy in July 2011 during his service in Afghanistan during Operation Enduring Freedom, when he experienced a blast from an improvised explosive device (IED) while riding in an armored vehicle. 2. The Veteran’s left eye optic neuropathy with optic atrophy first manifested during his period of active service with the U.S. Army. The Veteran began to exhibit symptomatology supportive of the in-service onset of left eye optic neuropathy with optic atrophy in 2013, subsequent to the IED explosion. CONCLUSION OF LAW The criteria have been met for service connection for left eye optic neuropathy with optic atrophy. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(d). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from November 2009 to March 2013 in the U.S. Army. His awards and decorations include the Combat Action Badge (CAB), among others. He was stationed in Afghanistan as part of Operation Enduring Freedom from March 2011 to March 2012. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from March 2014 and March 2015 rating decisions issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). Specifically, the appeal stems from a June 2013 Application for Compensation (VA Form 21-526EZ) for service connection for a left eye condition, which is open, pending, and presently on appeal. This is because new and material evidence (pertinent medical evidence) was received during the appeal period after the March 2014 rating decision, under the provisions of 38 C.F.R. § 3.156(b). In December 2019, the Board remanded the appeal for further development. This case has since been returned to the Board for appellate review, after the AOJ substantially complied with the Board’s remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). I. VA’s Duty to Notify and Assist VA’s duty to notify under the Veterans Claims Assistance Act of 2000 (VCAA) was satisfied by an attachment provided to the Veteran included with his March 2014, June 2014, and July 2014 Applications for Compensation (VA Form 21-526EZ). See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159 (2020). This attachment advised the Veteran of the information and evidence necessary to substantiate his service connection claim on appeal. In any event, in the decision below, the Board has granted the Veteran’s claim for service connection for left eye optic neuropathy with optic atrophy. Therefore, the benefits sought on appeal have been granted in full for this particular issue. Accordingly, regardless of whether the notice and assistance requirements have been met, no harm or prejudice to the Veteran has resulted for this particular issue. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. II. Service Connection for a Left Eye Disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service — the “nexus” requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Thus, there is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board should make explicit findings regarding the competency and, if necessary, the credibility of the lay evidence of record. Miller v Wilkie, 32 Vet. App. 249, 257-262 (2020). Lay testimony is competent to describe the presence of readily observable features or symptoms of injury or illness that are not medical in nature, such as varicose veins, tinnitus, and flat feet. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 307-310 (2007). The Federal Circuit has also clarified that lay evidence can be competent for the medical diagnosis or etiology of a condition if: (1) the 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, 1376-77 (Fed. Cir. 2007). And if the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that lay evidence against other evidence of record in making its determination regarding the award of service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). At the outset, the Veteran is already service-connected for a “visual distortion” of the left eye secondary to his service-connected migraine headaches. See August 2020 rating decision. This visual distortion has been described by VA examiners as “blurred vision” occurring simultaneous to the onset of headaches, which the Veteran periodically experiences. See February 2015 and January 2020 VA headache examinations; January 2020 VA PTSD examination. The Veteran has been assigned a 20 percent rating for his visual distortion of the left eye under Diagnostic Code 6066 (for impairment of central visual acuity of 20/200). 38 C.F.R. § 4.79 (2020). However, in the present decision, the Board has also considered whether service connection is warranted for any other eye / vision condition or diagnosis identified in the record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim). That is, the Court in Clemons held that in determining the scope of a claim, VA must look to all possible diagnoses, conditions, and illnesses that a pro se non-expert claimant could have reasonably expected to have included in their claim as well as the evidence developed in processing that claim. 23 Vet. App. at 5-6. The Federal Circuit recently termed this as the “Clemons lenient-claim-scope rule.” Murphy v. Wilkie, 983 F.3d. 1313, 1318-20 (Fed. Cir. 2020). As such, the procedural history and statements by the claimant are relevant in determining the claimant’s reasonable expectations and understanding, as service connection issues may be properly bifurcated and adjudicated separately if necessary. Id. at 1319. Importantly, this rule also extends to non-mental health conditions. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009) (applying Clemons to a neurological disorder). Upon review of the evidence, service connection for a separate left eye condition - left eye optic neuropathy with optic atrophy, is granted. The first and perhaps most fundamental requirement for any service-connection claim is proof the Veteran has a current disability. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a); Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Federal Circuit Court has held that where pain causes functional impairment, a “disability” for VA compensation purposes can exist, even if there is no underlying diagnosis or pathology. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). In the present case, there is probative evidence that the Veteran meets the threshold criterion for service connection of a current left eye disability. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Specifically, a VA optometrist at a recent September 2020 VA eye examination diagnosed the Veteran with left eye optic neuropathy with optic atrophy. On examination, a visual field defect showed central scotoma in the left eye consistent with optic neuropathy with optic atrophy. The functional impact of the disability was a decrease in vision and a defect in the visual field causing difficulty reading and difficulty driving for a long time. VA ophthalmology treatment notes dated from 2013 to 2019 also assessed the same diagnosis of optic neuropathy of the left eye. As such, the first element of service connection (existence of a current disability) is met here. The remaining question is whether the Veteran’s current left eye optic neuropathy with optic atrophy first manifested during active duty from 2009 to 2013 or is otherwise related thereto. As to the second requirement of in-service incurrence, under 38 U.S.C. § 1154(b), there is a relaxed evidentiary standard for proving the onset or aggravation of an injury or disease during combat. The combat rule serves to satisfy the incurrence element of a service-connection claim, but it is not a presumption of service connection. It means that, generally, VA will accept as true a combat veteran’s report of injury or disease in service, even if there is no official record of the incident, as long as the report is consistent with the circumstances, conditions, or hardships of such service. The in-service incurrence of such injury or disease, however, may be rebutted by clear and convincing evidence to the contrary. See 38 C.F.R. §§ 3.304(d) (general combat rule); 3.304(f)(2) (PTSD combat presumption). However, the provisions of 38 U.S.C. § 1154(b) do not establish a presumption of service connection but eases the combat veteran’s burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Caluza v. Brown, 7 Vet. App. 498 (1995). That is, the statute provides a basis for determining whether a particular injury was incurred in service, but not a basis to link the injury etiologically to the current condition. Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007). As to the second requirement of in-service incurrence, the Veteran’s receipt of the Combat Action Badge (CAB) as documented by his DD Form 214 confirms his participation in combat with the enemy in Afghanistan as part of Operation Enduring Freedom from March 2011 to March 2012. He has described worsening vision and other eye symptomatology in the left eye that developed after he experienced a blast from an improvised explosive device (IED), while travelling in an armored vehicle in Afghanistan in July 2011. See June 2013 statement accompanying service connection claim; November 2020 VA Form 9; and December 2020 Veteran statement. It follows that his lay statements are sufficient to show the incurrence or aggravation of an eye injury or disease during combat. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). There is no clear and convincing evidence to the contrary. Although the occurrence of an in-service eye injury is confirmed through satisfactory evidence of combat during an IED explosion, the Veteran must still present evidence of a nexus linking his in-service eye injury (or aggravation of a preexisting eye injury) to a current diagnosis of left eye optic neuropathy with optic atrophy. Dalton, 21 Vet. App. at 36-37. A July 2011 STR evaluation documented the Veteran’s exposure to an IED blast in Afghanistan. At the time, his eyes were normal and there were no vision complaints related to the IED blast. However, at a January 9, 2013 STR report of medical history at separation, the Veteran reported he had trouble seeing out of his left eye after the IED explosion. STR routine / new patient eye examinations dated in January 2013 noted trauma to the left eye after an explosion in 2011, with worsening left eye vision since that time. On examination in January 2013, corrected distant left eye visual acuity was 20/200. In the left eye, a reticular type retinal degeneration of 360 degrees was observed. There was significant retinal nerve fiber layer (RNFL) thinning in the left eye. Importantly, this was the first diagnosis in the record for left eye optic atrophy. A January 18, 2013 STR separation examiner listed significant or disqualifying defects of left eye optic atrophy. Thus, the above STRs provide some clinical evidence in support of the in-service incurrence of left eye optic neuropathy with optic atrophy or similar ocular pathology. See 38 C.F.R. § 3.303(a). As to the third requirement of a nexus, most importantly, there is probative medical evidence of a nexus or link between the Veteran’s current left eye optic neuropathy with optic atrophy and his documented in-service visual symptoms and IED explosion. Holton, 557 F.3d at 1366. See also 38 C.F.R. § 3.303(a), (d). Specifically, a favorable nexus is shown by VA ophthalmology treatment notes dated from 2013 to 2019, which repeatedly provide a nexus to service for the Veterans’ current optic neuropathy of the left eye, based on the Veteran’s credible reported history. They consistently discussed the Veteran’s reported history of decreased vision and other eye problems slowly worsening after involvement in an IED blast in Afghanistan in 2011. These VA ophthalmology treatment notes dated from 2013 to 2019 observed that the Veteran’s left eye exhibited a diffuse pallor, worse temporally. He had severe temporal thinning in most quadrants of the left eye. A November 2014 VA addendum note, and various VA treatment notes thereafter found that this left eye condition was likely due to trauma. The Court has held that VA cannot reject a medical opinion or medical evidence simply because it is based on a history supplied by the veteran and that the critical question is whether that history was accurate. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); see, e. g., Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on a veteran’s statement renders a medical report incredible only if the Board rejects the statements of the veteran). Here, the Veteran’s reported history of left eye problems in-service and continuing immediately post-service is for the most part accurate and verified by his STRs and VA treatment records. The above VA clinical personnel properly considered the Veteran’s reported lay history, which the Board has found to be credible and supported by clinical evidence of record. These VA eye physicians were “informed of the relevant facts” and correct medical history in rendering their medical conclusions for left eye optic neuropathy with optic atrophy. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges an unfavorable September 2013 VA eye examination and opinion from a VA optometrist. This VA examiner opined there was no evidence that the in-service IED caused the Veteran’s left eye optic atrophy to develop. However, the Board finds this September 2013 VA medical opinion for the left eye is flawed. It fails to address that the first diagnosis for left eye optic atrophy in the record was rendered by military optometrists during service in January 2013. Regardless of the precise cause and precise nature of the Veteran’s left eye optic atrophy, in order to establish service connection, it is not necessary that the disability actually be “caused” by active service or that a specific etiology be identified; rather, it is only necessary that the left eye disability be “incurred coincident with service” by affirmative evidence showing “inception” during service. See 38 C.F.R. § 3.303(a). In other words, competent and credible medical or lay evidence demonstrating the “onset” of the Veteran’s currently diagnosed left eye optic neuropathy with optic atrophy during service is satisfactory in establishing service connection. Causation by service is not required. As discussed in detail above, both in-service and post-service diagnoses for left eye optic neuropathy with optic atrophy have been documented in the clinical evidence of record. The Board acknowledges the existence of another unfavorable September 2020 VA eye examination and medical opinion with an October 2020 VA addendum opinion proffered by a VA optometrist. After a discussion of various in-service and post-service clinical records, the VA optometrist opined there is clear and unmistakable (i.e. undebatable) evidence that the Veteran’s left eye optic atrophy and left eye strabismus preexisted his entrance into active military service. The VA optometrist then added that the Veteran’s left eye optic atrophy and left eye strabismus clearly and unmistakably was not aggravated beyond its natural progression by the in-service IED explosion. In this respect, in this case, where no preexisting left eye optic atrophy or left eye strabismus was noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (1) these particular left eye conditions preexisted service and (2) these particular preexisting conditions were not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). This statutory provision is referred to as the “presumption of soundness.” Horn, 25 Vet. App. at 234. If the government rebuts the presumption of soundness by demonstrating both the preexistence and non-aggravation of the condition in question, then the veteran is not entitled to service-connected benefits. In other words, the findings of the October 2020 VA addendum opinion, if supported by clear and unmistakable evidence, would mean the Veteran’s left eye claim on appeal would be denied. However, the Board finds that the unfavorable September 2020 VA medical opinion with an October 2020 addendum opinion is flawed as well. That is, the preexistence of left eye optic atrophy prior to entrance into active duty in 2009 is not fully supported and at times inconsistent with other clinical evidence of record. Importantly, the preexistence of left eye optic atrophy must be “undebatable” in order to constitute clear and unmistakable evidence. “Clear and unmistakable evidence” is an “onerous” evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood). In particular, the April 2009 STR entrance examination concluded that corrected left eye distant vision was 20/200, confirming decreased vision of the left eye at entrance. Also, the April 2009 STR entrance examiner assigned a numerical designation of “2” under the “E” category for “eyes” on the Veteran’s physical profile, i.e., PULHES. PULHES is the six categories into which a physical profile is divided. A rating of “2” for the left eye at entrance is indicative of limitations necessitating assignment restrictions. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). However, the specific left eye condition causing these limitations was not “noted” at the April 2009 STR entrance examination. In this regard, to be “noted” within the meaning of the presumption of soundness statute, the specific condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304(b); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). That is, no left eye optic atrophy was noted or identified at the entrance examination. However, in a November 19, 2009 STR treatment record, dated only one day after the Veteran’s official entrance into service, a military eye examiner diagnosed the Veteran with refractive error / myopia and strabismus (squinting) for the left eye. (The VA examiner failed to discuss this pertinent STR). Moreover importantly, no diagnosis was rendered in the November 2009 STR for left eye optic neuropathy with optic atrophy. No diagnosis was rendered for this condition until four years later - upon separation from service in January 2013. Other STRs dated from 2010 to 2013 reported that prior to service when the Veteran was 10 to 15 years old, he suffered blunt force trauma to the left eye when he was struck with a mango, for which he was hospitalized sometime between 1996 to 2003. VA ophthalmology treatment notes dated from 2013 to 2019 also document this past medical history of a pre-service injury to the left eye, causing decreased vision. In light of the above evidence, the Board concludes it is undisputed the Veteran had a preexisting left eye condition prior to active duty (left eye refractive error and left eye strabismus). But the evidence of record is not clear and unmistakable in demonstrating that left eye optic neuropathy with optic atrophy preexisted the Veteran’s entrance into service. In other words, the evidence of record is debatable as to whether the Veteran’s left eye optic neuropathy with optic atrophy preexisted his military service. Cotant, 17 Vet. App. at 131. Thus, the proper analysis for the Veteran’s left eye optic neuropathy with optic atrophy remains one of direct in-service incurrence, which the Board has already granted above. Horn, 25 Vet. App. at 236-37; Wagner, 370 F.3d at 1096. Accordingly, resolving doubt in the Veteran’s favor, service connection for left eye optic neuropathy with optic atrophy is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. R.R. WATKINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. Rubin, 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.