Citation Nr: 21025662 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 10-09 371 DATE: April 28, 2021 ORDER Service connection for a right eye disability is denied. FINDING OF FACT The record does not show that the Veteran has a right eye condition. CONCLUSION OF LAW The criteria for service connection for right eye disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty in the United States Army from January 1977 to January 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in November 2017 and July 2019 and remanded for additional development. The Board acknowledges that the Veteran testified that he currently has a right eye disability due to an injury in service. However, the record shows that his injury in service and current disability is located in his left eye. The Board invites the Veteran to consider submitting a claim for his left eye condition. Service Connection The Board Veteran contends that he has right eye problems as a result of piece of metal lodged in his eye. In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). The United States Court of Appeals for the Federal Circuit held that “pain in the absence of a presently-diagnosed condition can cause functional impairment,” which may qualify as a “disability” for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Federal Circuit in Saunders, however, cautioned against the notion that “a veteran could demonstrate service connection simply by asserting subjective pain” because, to establish that a disability is present, the veteran “will need to show that... pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. “Functional impairment,” the Federal Circuit noted, is defined as the inability of the body or a constituent part of it “to function under the ordinary conditions of daily life including employment.” Id. at 1363 (quoting 38 C.F.R. § 4.10). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Right eye condition The Veteran seeks service connection for a right eye disability. In support, he testified that he had an injury in service that resulted in a scar in his right eye. See BVA hearing transcript (May 2017). In July 2019, the Board remanded this issue with instructions for the examiner to consider the Veteran’s contentions, medical and lay evidence and to indicate if there is any impairment in his right eye. In October 2020, the Veteran was provided a VA examination and the examiner noted that the Veteran had a diagnosis of corneal scar in his left eye and unspecified visual loss in his right eye. The examiner acknowledged and considered the Veteran’s competent and credible report of sustaining a right eye injury that resulted in him having corneal foreign body in his right eye while he was in service. The examiner reported, however, There is currently no impairment of his right eye or scarring or any other sign of a corneal foreign body in his right eye. Additionally, the examiner opined that is at least as likely as not incurred or caused by the claimed in-service event as the patient’s blur is correctable by spectacles. See VA medical examination (October 2020). However, the same examiner opined that additional medical examinations were needed to determine the origins of the claim condition in the Veteran’s right eye. Then, the examiner opined that the claimed condition is less likely as not incurred or caused by the claimed in-service event as a foreign body in the left eye would not reduce vision in the right eye. See VA medical examination (October 2020). In November 2020, another VA examiner opined that the condition is less likely as not incurred or caused by the claimed in-service event. The examiner stated that there is no corneal scar or pathology seen on exam of his right eye. Additionally, there is no way to determine the etiology of starburst/rusty area which he saw on his eye from approximately 1979 through 1987, as this spot is no longer on his eye. It was currently resolved and at the time the Veteran and spouse stated it was present, it was something that they saw when they looked at his eye and it did not cause any functional impairment. See VA medical examination (November 2020). The Board finds that the evidence on record does not show treatment or a diagnosis for a right eye disability or that such condition is related to service or occurred within one year after service. As such, service connection is not warranted. The Board acknowledges that the Veteran credibly provided sworn testimony about his right eye injury in service. However, the evidence on record does not show that the Veteran suffers from a right eye condition or functional impairment. In reaching this determination, the Board observes that questions of whether if the Veteran has a diagnosis of a right eye disability involves a complex medical issue to which the Veteran, as a lay person, is not competent to opine. Whether the Veteran has a right eye disability is a medically complex issue as it requires knowledge of medicine; hence, his statement does not provide an indication of a nexus to service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011); 38 C.F.R. § 3.159(a) (1-2). Therefore, service connection is not warranted since the record does not show that the Veteran suffers from a condition or functional impairment in his right eye. In light of the forgoing, the Board finds that the October and November 2020 VA examinations and the absence of medical evidence reflecting a right eye disability to be persuasive and of the greatest probative value. It is apparent that the Veteran does not have a disability in his right eye, thus, service connection is not warranted. As such, the preponderance of the evidence is against the claim of service connection. Therefore, the Veteran does not warrant service connection for a right eye disability. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- 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.