Citation Nr: 21025866 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 13-26 059 DATE: April 29, 2021 ORDER Entitlement to service connection for residuals of burns to the eyes is denied. Entitlement to service connection for dry eye syndrome is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had any residuals of burns to his eyes at any time during, or approximate to, the pendency of this claim. 2. The preponderance of the evidence is against finding that dry eye syndrome began during the Veteran’s active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of burns to the eyes are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for dry eye syndrome are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1971 to October 1974. This case was previously before the Board of Veterans’ Appeals (Board) in April 2016, August 2017, October 2019, and June 2020. All four times, these matters were remanded for additional development. The record now reflects substantial compliance with the remand requests. Dyment v. West, 13 Vet. App. 141 (1999). In February 2015, the Veteran testified at a Travel Board hearing before one of the undersigned Veterans Law Judges, and, in June 2019, the Veteran testified at a another Travel Board hearing before a second undersigned Veterans Law Judge. As two different Veterans Law Judges heard testimony concerning the issues on appeal, a panel of three Veterans Law Judges, including the two who presided over the hearings, must decide the issues. Accordingly, this decision is being rendered by a panel of three Veterans Law Judges. 38 U.S.C. §§ 7102(a), 7107(c). At the most recent Board hearing, which was conducted in June 2019, the Veteran was offered, but declined (on the record), an opportunity to testify at a hearing before a third Veterans Law Judge. Arneson v. Shinseki, 24 Vet. App. 379 (2011). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Residuals of burns to the eyes Dry eye syndrome The Veteran asserts that he has residuals of burns to the eyes and dry eye syndrome due to an in-service gas burner explosion. On a July 2010 claim for benefits, he indicated that he developed dry eye syndrome due to an in-service explosion that temporarily blinded him. On a June 2012 notice of disagreement, he stated that the explosion occurred when he was relighting a burner that had gone out. At the February 2015 hearing, he added that it has been about 10 years since he really started having trouble with his eyes. At the June 2019 hearing, he indicated that the burning and dryness in his eyes began during service. Initially, the Board observes that the majority of the Veteran’s service treatment records are not available. In such cases when records are missing, VA has a heightened duty to assist the veteran. Cuevas. v. Principi, 3 Vet. App. 542 (1992). In this case, the Board finds that the Veteran’s statements and testimony are sufficient to support the incurrence of in-service injuries to his eyes from a gas burner explosion. However, as will be seen below, the evidence of record does not show that he has a current disability of his eyes due to those injuries. The available service treatment records include the Veteran’s September 1974 report of medical history at separation, at which time he denied having any eye trouble, and the report of medical examination at separation, which revealed 20/20 distant vision bilaterally and a normal evaluation of the eyes. Thus, while the Veteran incurred injuries to his eyes in service, the competent evidence, such as the clinical separation examination report, tends to show that the injuries were acute and resolved prior to discharge from service. In any event, the evidence does not show that the in-service injuries resulted in a chronic disability of the eyes. Post service, the first evidence of eye problems is in an October 2001 VA medical record, which shows that the Veteran’s past medical history was positive only for a recently diagnosed scleroderma. Then, in November 2009, he was diagnosed with peripheral retinal hemorrhages of the left eye, possibly secondary to scleroderma. By August 2010, he was using lubricant ointment for dry eyes. Then, a May 2016 eye clinic note shows complaints of bilateral eye pain at night and mild dryness. Examination revealed a small corneal tear in both eyes and normal conjunctiva. Diagnoses included dry eye syndrome bilaterally and history of peripheral retinal hemorrhages of the left eye. A January 2017 VA examination revealed corrected distance vision of 20/40 or better bilaterally and corrected near vision of 20/40 or better bilaterally. There was no double vision or corneal irregularity resulting in severe irregular astigmatism. Examination of the conjunctiva and sclera revealed a small pinguecula in each eye. There were no other abnormalities. The examiner indicated that the Veteran had conjunctivitis, other conjunctival conditions, and a pinguecula bilaterally. The examiner diagnosed peripheral retinal hemorrhages of the left eye and noted that the tear break-up time was 10 seconds bilaterally. The examiner stated that no retinal hemorrhages were seen in either eye on examination and that the Veteran does not have any residuals of burns to the eyes incurred in or caused by service. The examiner concluded that the Veteran does not have a diagnosis of dry eye syndrome that was incurred in, or caused by, service. The examiner stated that the peripheral retinal hemorrhages of the Veteran’s left eye and complaints grittiness of the eyes noted in the VA treatment records do not constitute a disability and that there are retinal hemorrhages but no complaint of grittiness and no residual disability attributable to a burn injury. The examiner concluded that the Veteran has no current pathological eye diagnoses. The examiner remarked that the Veteran’s subjective discomfort is not born out via testing. While the examiner indicated that the Veteran does not have any residuals of burns to the eyes, the examiner did not address the diagnosis of dry eye syndrome in the May 2016 VA medical record or comment on his own finding of conjunctivitis that he specified as a pinguecula. Thus, the Board requested an addendum opinion. In a November 2017 addendum opinion, the examiner concluded that the dry eye syndrome noted in May 2016 was not incurred in or due to service, to include the gas burner explosion. The examiner noted that the May 2016 diagnosis of dry eye syndrome was not borne out in the examination notes, and no testing related to dry eye syndrome was performed. The examiner also noted that tear film assessment at the time of the January 2017 examination was normal. The examiner further concluded that the conjunctivitis noted at the January 2017 examination was not incurred in or due to service, to include the gas burner explosion. The examiner noted that the Veteran’s pingueculae were not previously noted and that the most common cause of pingueculae is excessive ultraviolet (UV) light exposure. The examiner stated that it is very unlikely that pingueculae would have presented themselves 40+ years after the incident. While the examiner indicated that the May 2016 notation of dry eye syndrome was not a proper assessment, the examiner’s reasoning was not clear. Further, while the examiner provided an opinion on whether the Veteran’s conjunctivitis was related to the in-service burn incident, he provided no rationale for the opinion. Thus, the Board requested a new examination and opinion. A December 2019 VA examination revealed corrected distance and near vision of 20/20 bilaterally. There was no double vision or corneal irregularity resulting in severe irregular astigmatism. Examination revealed no abnormalities in either eye. The examiner indicated that the Veteran had dry eye syndrome in both eyes but no associated decrease in visual acuity or other visual impairment. The examiner provided diagnoses of hyperopia and presbyopia. The examiner stated that there is no eye condition or dry eye cause for visual impairment or disability and noted that the Veteran has refractive error and age-expected presbyopia. The examiner noted that the Veteran’s tear break-up time is lower than average and correlates with dry eye symptoms, but there are no other associated ocular findings. The examiner observed that the Veteran’s current level of dry eye symptoms is most likely age related and not associated with his time in service. While the examiner provided an adequate opinion on whether the Veteran’s dry eye syndrome is related to the in-service gas burner explosion, the examiner did not provide an opinion on whether the Veteran’s diagnosed conjunctivitis is related to service. Thus, the Board requested an addendum opinion. In a July 2020 addendum opinion, the examiner acknowledged the notation of a small pinguecula under the category of conjunctiva and sclera in the January 2017 examination report. The examiner stated that a pinguecula is due to chronic UV exposure, not related to service, and not the same as conjunctivitis. The examiner thus stated that there is no diagnosis of conjunctivitis. The examiner also stated that a pinguecula does not cause conjunctivitis and is not a result of conjunctivitis. The examiner further stated that a pinguecula does not cause dry eye and is not a result of dry eye. Initially, the Board observes that the Veteran has peripheral retinal hemorrhages of the left eye. However, the January 2017 examiner stated that they do not constitute a disability, and the December 2019 examiner noted that the Veteran has refractive error and age-expected presbyopia. Thus, there is no evidence that the Veteran’s peripheral retinal hemorrhages have resulted in a decrease in visual acuity or other visual impairment. As such, they are akin to a laboratory finding and do not amount to a chronic disability for VA compensation purposes. Given the above, while the majority of the Veteran’s service treatment records are regrettably unavailable, his separation examination does not show an eye disability at that time and his post-service treatment records do not show that he had an eye disability during or proximate to service. There is no evidence of an eye disorder until October 2001, over 25 years after his separation from service, and he reported at that time only a recent diagnosis of scleroderma. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, there is no indication of dry eye syndrome until the use of eye drops in August 2010, over 35 years after his separation from service. Thus, the Board finds that an eye disability did not have its onset during service or for many years thereafter. Moreover, the medical opinion evidence does not show that the Veteran currently has any residual disability due to the in-service gas burner explosion. While the Board acknowledges that he injured his eyes during the explosion in service, the evidence of record does not show that he currently has any residual disability from those injuries. Both January 2017 and December 2019 examiners concluded that the Veteran does not have any residuals of burns to the eyes. The December 2019 examiner explained that the Veteran has not had conjunctivitis during the appeal period but rather only pingueculae, which are not considered conjunctivitis. The examiner noted that pingueculae are due to chronic UV light exposure and thus opined that the Veteran’s pingueculae are not due to the in-service explosion. This conclusion is supported by the January 2017 examiner’s assessment that the most common cause of pingueculae is excessive UV light exposure and that if the Veteran’s pingueculae were due to the in-service incident, then they would have presented themselves much sooner than 40 years. The December 2019 examiner further noted that a pinguecula does not cause conjunctivitis or vice versa. The December 2019 examiner acknowledged that the Veteran does have dry eye syndrome, as indicated by a lower than average tear break-up time, but concluded that his current level of dry eye symptoms is age-related and not due to the in-service explosion. This conclusion is supported by the May 2016 eye clinic note showing complaints of mild eye dryness and by the January 2017 examiner who stated that the Veteran’s tear break-up time was essentially normal, both of which suggest that his dry eye syndrome is mild or at worst moderate, with no indication of in-service onset or any acceleration by the in-service explosion 35 years earlier. A lay person is competent to give evidence about observable symptoms such as eye pain and dryness. Layno v. Brown, 6 Vet. App. 465 (1994). A lay person is also competent to address the etiology of a disability in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the record dates the onset of symptoms to over 25 years after separation from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his eye disabilities. As discussed above, the medical evidence shows that he does not have an eye disorder related to active service. Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To the extent that the Veteran is claiming to have experienced continuous eye pain and dryness since service, he is not found to be credible. Again, there is no competent medical evidence of symptoms until over 25 years after separation from service. The initial medical records of eye treatment do not indicate an in-service onset of symptoms. There also appears to be a discrepancy in his testimony as to the onset of symptoms, dating symptoms to 2005 at the February 2015 hearing but dating symptoms to service at the June 2019 hearing. Given the above, the Board finds that the statements alleging or implying continuity of symptoms are not credible in this case. Therefore, continuity of symptomatology is not established by either the competent evidence or the Veteran’s own statements as the latter lack credibility. In light of the above, the Board finds that the preponderance of the evidence of record is against finding that the Veteran has had any residuals of burns to the eyes at any time during or approximate to the pendency of the claim. The Board also finds that the preponderance of the evidence is against finding that his dry eye syndrome began during active service, or is otherwise related to an in-service injury or disease. Accordingly, the Board concludes that service connection for residuals of burns to the eyes and dry eye syndrome is not warranted. As the preponderance of the evidence is against the claims, the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, 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.