Citation Nr: 21025617 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-19 187 DATE: April 28, 2021 ORDER Entitlement to service connection for a left eye disorder is denied. REMANDED The issue of entitlement to a compensable rating for eczema is remanded. The issue of entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD), is remanded. The issue of entitlement to service connection for bilateral hearing loss is remanded. The issue of entitlement to service connection for tinnitus is remanded. The issue of entitlement to service connection for a psychiatric disorder, to include depression, is remanded. The issue of entitlement to service connection for a right knee disorder is remanded. FINDING OF FACT The preponderance of the evidence is against finding that a left eye disorder began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a left eye disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to September 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a Board hearing conducted by a Veterans Law Judge who has retired from the Board. A transcript of that hearing is included in the record. In March 2019, the Board remanded the case for additional development. The case is again before the Board for appellate review. In March 2021, the Board sent notice to the Veteran that the Judge who conducted his Board hearing was no longer employed by the Board and in accordance with 38 C.F.R. § 19.3 (b) afforded the Veteran an additional opportunity to have a hearing before another Veterans Law Judge. The Veteran selected the response, “I do not wish to appear at another Board hearing. Please consider the evidence of record.”   Entitlement to service connection for a left eye disorder The Veteran contends that he has an eye disorder that began during active duty. 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; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The question for the Board is whether the Veteran has a current disorder that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s service treatment records (STRs) indicate that in April 1977, while aboard the USS Truett (DE 1095), the Veteran was seen in sick bay with complaints of burning in his eye and stated that he had been traumatized with hot welding slag in his left eye. On examination, there was a gray area of foreign object in the center of the cornea, but the provider could not determine whether it was a scar, foreign object, or an abrasion. The Veteran was sent for further evaluation at which time it was thought that the area on cornea of the left eye was due to protein coagulation from hot metal rather than from foreign body. Neosporin was instilled, and he was given an eye patch. On the clinical examination for separation from service in August 1977, the Veteran’s eyes were evaluated as normal, and his vision was 20/20. Further, on the report of medical history completed by the veteran in conjunction with his separation physical, the veteran denied ever having eye trouble. On VA examination in May 1978, the Veteran’s eyes were evaluated as normal; no vision test was conducted. The Veteran underwent VA examination in October 2013 at which time the examiner noted that while on active duty in the Navy, the Veteran had a welding slag that went into the left eye on one occasion. The examiner also noted the Veteran’s report that, on another occasion, following service, the Veteran sustained a shrapnel wound to the left side of his face from a weapon malfunction and accidentally discharged bullet. The examiner stated that the scars on the face were due to shrapnel wounds; and that nuclear sclerotic cataracts and superior visual field cut appeared to be age-related and not related to shrapnel wounds or welding slag. The Veteran was seen as a new VA patient in October 2014 at which time he reported a gunshot wound to his left upper eyelid due to an accident while cleaning his 9-mm pistol which required surgery. The Veteran testified in June 2018 that during service, he was welding and he went to chip some slag off of the side and it went up underneath the glasses into his eye; that he sought treatment; and he was given liquid drops and an eye patch. The Veteran testified that the first time that he sought treatment for his eye after service was around 1985 after the accident involving the gun. The Veteran underwent VA eye examination in September 2020 at which time his left cornea was normal. He was diagnosed as having bilateral upper lid dermatochalasis and bilateral cataracts. The examiner noted that the veteran had bilateral upper lid blepharoplasties done at the beginning of September; however, a residual dermatochalasis was still present bilaterally. The examiner also noted that the Veteran had age-related cataracts that were not related to the welding slag. Based on the foregoing evidence, the Board concludes that the evidence shows that the Veteran has current eye disorders. Further, the evidence shows that he injured his eye during service. However, the preponderance of the evidence weighs against finding that the current problems began during service or are otherwise related to the in-service injury. See Shedden, supra. Although the Veteran believes he has a current left eye disability that is related to an in-service injury, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the opinions of the VA examiners that the Veteran’s nuclear sclerotic cataracts, superior visual field cut, and bilateral upper lid dermatochalasis were not related to the in-service left eye injury. As the preponderance of the evidence is against the claim of entitlement to service connection for an eye disorder, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a compensable rating for eczema The Veteran underwent VA examination in March 2017 at which time the Veteran had red plaque lesions on his scalp noted to be eczema. The Veteran reported being treated with a topical corticosteroid, specifically betamethasone cream, for a total duration of six weeks or more but not constant. The Veteran’s eczema involved less than five percent of total body area. VA treatment records indicate that the Veteran also has eczema on his hands. At the June 2018 Board hearing, the Veteran testified that the eczema on his hands caused constant pain and that it affected his arms, into his tattoos, as well as his head. When a condition has a history of flare ups, an examination is inadequate when it is not taken during an active phase. Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). Therefore, a remand is required to conduct another VA examination which accounts for symptoms during a flare-up. 2. Entitlement to service connection for a respiratory disability, to include COPD The Veteran testified that during the summer of 1977, during service, he spent three months in the hospital in Portsmouth, Virginia, at which time he underwent a procedure in which the providers went into his lungs through his nose and cut out a bunch of cysts.” It does not appear that VA has attempted to obtain these treatment records from the in-service hospitalization. In addition, in August 2015, the Veteran was seen by Dr. P.Y., who noted that the Veteran was there to talk about his VA disability and specifically that he had been unable to gain any ground and would like to get second opinions on several issues, including COPD. The Veteran was referred to respiratory consultants for a second opinion. It does not appear that VA has attempted to obtain any such consultation report. Finally, Social Security Administration (SSA) records include a General Medical Source Statement by Dr. A.S., the Veteran’s treating physician, who noted that she had been treating the Veteran for, inter alia, COPD, and that she had been treating him since 2000. It does not appear that VA has attempted to obtain treatment records from Dr. A.S. prior to 2009. A remand is required to allow VA to request these potentially relevant records. 3. Entitlement to service connection for a psychiatric disability, to include depression 4. Entitlement to service connection for bilateral hearing loss 5. Entitlement to service connection for tinnitus 6. Entitlement to service connection for a right knee disability As noted above, SSA records include a General Medical Source Statement by Dr. A.S who noted that she had been treating the Veteran for, inter alia, PTSD, anxiety, and depression. In August 2015, the Veteran was seen by Dr. P.Y., who noted that the Veteran was there to talk about his VA disability as well as to request second opinions on several issues, inter alia, COPD, hearing loss, depression, anxiety, and right knee pain. It does not appear that VA has attempted to obtain treatment records from Dr. A.S. or Dr. P.Y. since March 2016 or from any of the private physicians who conducted consultations for second opinions. A remand is required to allow VA to request these potentially relevant records. Lastly, with regard to hearing loss, the RO should provide the Veteran a new examination to determine whether he has current hearing loss disability under 38 C.F.R. § 3.385. The most recent audiology report dated in October 2013 indicates no such disability. The matters are REMANDED for the following action: 1. Obtain records of any inpatient treatment at the Naval Hospital in Portsmouth, Virginia in 1977. Document all requests for information as well as all responses in the claims file. 2. Ask the Veteran to complete a VA Forms 21-4142 for any medical records from North Memorial Health for treatment prior to 2009 and since March 2016. 3. Ask the Veteran to complete VA Forms 21-4142 for any other private physicians and/or facilities who have treated or provided consultations to the Veteran for his eczema, hearing loss, tinnitus, respiratory disorder, psychiatric disorder, and left knee disorder. 4. Schedule an examination to determine the current severity of service-connected eczema. The report should address the severity, frequency, and duration of any flare-ups. To the extent possible, the examiner should provide a full description of the disability and report all signs and symptoms during a flare-up based on the Veteran’s descriptions and any photographs provided. 5. Schedule an examination to determine the nature and etiology of any current hearing loss disorder. After reviewing the claims folder, interviewing the Veteran, and examining him, the examiner should answer the following questions: (a). Does the Veteran have a hearing loss disorder under 38 C.F.R. § 3.385? (b). If so, is it at least as likely as not (i.e., probability of 50 percent or greater) that the hearing loss disorder had its onset during service, or is related to a disease, event, or injury during service? (Continued on the next page) Please explain in detail any opinion provided and the supporting rationale and, in doing so, ensure that the lay assertions from the Veteran have been considered. C. J. McEntee Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Olson, Patricia 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.