Citation Nr: 21026049 Decision Date: 04/28/21 Archive Date: 04/29/21 DOCKET NO. 16-29 570 DATE: April 28, 2021 ORDER Service connection for a left eye disability is denied. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of VA gall bladder surgery in October 2013 is remanded. FINDING OF FACT The weight of the evidence is against finding that a current left eye disability 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 disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1978 to February 1982, April 2003 to July 2003, and from January 2011 to February 2012. This matter is before the Board of Veterans’ Appeals (Board) on appeal from November 2014 and October 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, a hearing was held before the undersigned. A transcript of the hearing is of record. The case was previously before the Board in June 2019 and August 2020 when it was remanded for further development. Service Connection-Left Eye Disability The Veteran is seeking service connection for a left eye disability, which she contends was the result of working in the post office when deployed to Kosovo in 2011. She states that the mail and boxes came in fiberglass bags which shredded and mixed with the dust and would get into her eyes and cause blurred vision and sharp pain. 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) 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). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. For example, lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing observable symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In rendering a decision on appeal, 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA treatment records show the Veteran having left eye diagnoses, including open angle glaucoma, uveitis, and dry eye syndrome. Service treatment records show that in April 2011, the Veteran was treated for pain in the right eye and the record generally indicates there was redness and irritation in the eyes. It was noted that the left eye conjunctiva exhibited no abnormalities. During glaucoma screening in June 2011, she was assessed as having asymmetric intraocular pressure. In January 2012, it was noted that the Veteran had pinguecula in each eye. It was specifically indicated there was no glaucoma, no strabismus, and no eye trauma. In a May 2012 post-deployment health assessment, the Veteran indicated that she had watery, red eyes. The Board concludes that, while the Veteran has a current diagnosis of a left eye disability, and evidence shows that the Veteran had pinguecula and complained of watery red eyes in service, the preponderance of the evidence weighs against finding that the Veteran’s current diagnosis of a left eye disability began during service or is otherwise related to an in-service injury, event, or disease. In a February 2005 VA eye consult, the Veteran complained of blurred vision when reading the paper. She was assessed as having presbyopia in each eye. In an April 2012 VA eye consult, it was noted that the Veteran had Lasik surgery in 2005 and she stated she had a lot of problems with her right eye being red at times. It was indicated that the Veteran stated that she did not have any past eye injuries. She was assessed as having presbyopia. A June 2013 VA general medical examiner noted no symptoms in the left eye but there was a pterygium. Reaction of pupils to light and accomodation and gross visual field assessment were normal. There were no other abnormalities of the fundus, lids and eyebrows, and conjunctivae. A June 2013 VA eye examiner diagnosed the Veteran with glaucoma left eye > right eye, diagnosed in service and visual field defect left eye, caused by glaucoma. It was indicated that she was diagnosed in Landstuhl as “pre glaucoma/ocular hypertension.” The examiner stated there is “S/C caused eye visual impairment or disability.” In an October 2013 Physical Evaluation Board counsel memorandum, the Veteran indicated that she had recurrent eye infections and that her eyes are constantly red and itchy and get more irritated when she is in an area that is dusty or smoke filled which limited her ability to perform her duties. A March 2016 VA eye examiner provided an assessment of primary open angle glaucoma left eye, posterior vitreous detachment left eye, and dry eyes. No opinion was provided. An August 2019 VA examiner diagnosed the Veteran with bilateral recurrent non-granulomatous anterior uveitis, bilateral Lasik procedures, and primary open angle glaucoma each eye. The examiner opined that the Veteran’s left eye conditions were less likely than not related to service, including exposure to shredded fiberglass and dust from working in the post office while deployed to Kosovo. The examiner stated that shredded fiberglass, dust, or dirt would have abraded the affected eye and would have resulted in observable fluorescein staining, which did not occur. The notes were conclusive that there was no trauma to include foreign bodies entrapped under the Veteran’s eyelids. In a November 2020 addendum opinion, the examiner clarified that the Veteran’s service treatment records indicated in January 2012 that there was bilateral pinguecula. In addition, in April 2011, the Veteran was diagnosed with a pterygium, but the diagnosis was changed from pterygium to pinguecula right eye. On follow-up one day later, eye exam records noted a clear conjunctiva and cornea but was assessed with pinguecula right eye. In view of the final diagnosis, this suggested that the Veteran had bilateral pinguecula with normal cornea in each eye. The April 2011 examinations as well as the January 2012 examination noted that the cornea was normal except for “normal Lasik scars, [each eye].” The Lasik scars were subepithelial and were noted on slit lamp exam. Any superficial (epithelial) defects such as those caused by foreign bodies, fiberglass, or other objects, would have been noted by the examinations in the description of the cornea. Taken together, the August 2019 VA examination and November 2020 addendum opinion establish that the Veteran’s current left eye disability is not at least as likely as not related to an in-service injury, event, or disease, including from fiberglass bags which shredded and mixed with dust. The examiner indicated that the Veteran had bilateral pinguecula with normal cornea in each eye. There was no abrasion in the left eye, and no observable fluorescein staining. Any superficial (epithelial) defects such as those caused by foreign bodies, fiberglass, or other objects, would have been detected in an examination of the cornea, but it was not detected. Therefore, there was no eye injury in service resulting from exposure to foreign bodies. The August 2019 opinion and the November 2020 addendum opinion are probative because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no other evidence of an event or trauma to the eyes in service, and the Veteran has not contended that there was such. The Board notes that the June 2013 VA eye examiner diagnosed the Veteran with glaucoma left eye > right eye, diagnosed in service and visual field defect left eye, caused by glaucoma. The examiner also diagnosed the Veteran with pinguecula right eye. The examiner stated that the Veteran had glaucoma that was diagnosed in Landstuhl as “pre glaucoma/ocular hypertension.” The examiner also stated there is “S/C caused eye visual impairment or disability.” It is unclear as to what was meant by the last statement, and the examiner did not specify which eye was involved and provided no rationale for that statement. Therefore, this statement is not afforded probative weight. Also, while service treatment records show pre-glaucoma/ocular hypertension under the “Problems” section; pre-glaucoma is a diagnosis of a potential disability. Simply put, this indicates that the Veteran may, conceivably, develop glaucoma at some point in the future. For VA purposes, such a statement does not indicate a current disability. This is so because a speculation about a disability that the Veteran may develop in the future cannot qualify as a present impairment of his earning capacity. In addition, ocular hypertension was included as an assessment in April 2011, when the Veteran was seeking treatment for pain in the right eye. Therefore, the June 2013 VA examiner’s opinion that the Veteran was diagnosed with left eye glaucoma in service is not afforded probative weight. The Board acknowledges that the Veteran believes her current left eye disability is related to an in-service injury, event, or disease. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships, pathology, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she 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 VA examiner’s opinions. As the preponderance of the evidence is against the claims for service connection for a left eye disability, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). REASONS FOR REMAND Entitlement to compensation under 38 U.S.C. § 1151 The Veteran seeks entitlement to compensation under 38 U.S.C. § 1151 for residuals of VA gall bladder surgery in October 2013. During her December 2018 Board hearing, she stated that she underwent a VA ultrasound during which a radiologist indicated that she had a gall bladder full of gallstones. During surgery to remove her gall bladder it was discovered that she was born without a gall bladder. The Veteran stated that as a result of the unnecessary surgery she has more severe right upper quadrant pain which is so painful that it causes her to double over and lose her breath. She indicated that the pain medication she uses for her back pain sometimes helps to alleviate her right upper quadrant pain. She also indicated that the radiologist who stated that she had a gall bladder continues to stand by that finding. In the August 2020 remand, it was indicated that the VA examination in August 2019 failed to address why the symptoms the Veteran contends constitute additional disabilities are not additional disability caused by the October 2013 VA treatment furnished the Veteran. Therefore, an additional opinion was requested. A VA medical opinion was obtained in October 2020. The clinician indicated that residuals of VA gallbladder surgery was not caused by or worsened as a result of VA treatment. While the Veteran did have right upper quadrant pain in 2015 and 2019, the record did not support that the pain was new in onset or worse than prior to the October 2013 surgery. The clinician indicated that the July 2020 VA treatment record indicated chronic upper right quadrant pain as a current medical complaint, but without any details about ongoing concerns. Therefore, no additional disability could be confirmed. However, the clinician did not take into account the Veteran’s testimony in her December 2018 Board hearing that as a result of the October 2013 surgery she has more severe right upper quadrant pain which is so painful that it causes her to double over and lose her breath, and that the pain medication she uses for her back pain sometimes helps to alleviate her right upper quadrant pain. Also, while the clinician indicated that there were no details about ongoing concerns in the July 2020 VA treatment records, the records indicated that hydrocodone helped with her chronic right upper quadrant pain. The United States Court of Appeals for Veterans Claims (Court) has held that a VA medical opinion lacks probative value when the examiner fails to address a veteran’s lay reports of medical history and symptoms, unless the Board has adequately explained why such lay reports are not credible, and that the proper remedy is for VA to obtain a new examination. A VA examiner must address the Veteran’s lay statements to provide the Board with an adequate medical opinion. Miller v. Wilkie, 32 Vet. App. 249 (2020). Therefore, remand for an additional addendum opinion is needed. Updated VA treatment records should be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from August 2020 to the present. 2. After completing the development requested in item 1, forward the claims file to the examiner who provided the October 2020 VA medical opinion regarding whether the Veteran has an additional disability caused by the October 2013 VA gall bladder surgery for an addendum opinion. The electronic claims file must be made available to the examiner for review. If the VA examiner who provided the October 2020 opinion is not available, then forward the Veteran’s claims file to another appropriate specialist to obtain a medical opinion. The Veteran should only be scheduled for another VA examination if it is deemed necessary by the clinician providing the opinion. Following review of the claims file and a copy of this remand, the examiner must address: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has an “additional disability” caused by the October 2013 VA gall bladder surgery? If so, the additional disabilities should be clearly identified. The term “additional disability” means any condition that did not exist immediately before the Veteran’s October 2013 surgery. The clinician must compare the Veteran’s condition immediately before and after the October 2013 VA surgery. If there is no “additional disability,” then the clinician does not need to provide answers to (b) and (c) but must explain why the symptoms the claimant contends constitute “additional disabilities” are not additional disability caused by the October 2013 VA treatment furnished the Veteran. The examiner is specifically directed to address the Veteran’s statements from her December 2018 hearing, where she stated that as a result of the October 2013 surgery she has more severe right upper quadrant pain which is so painful that it causes her to double over and lose her breath, and that the pain medication she uses for her back pain sometimes helps to alleviate her right upper quadrant pain. The examiner must also comment on the July 2020 VA treatment records that indicate that she was taking hydrocodone which helped with her chronic right upper quadrant pain. b) If the Veteran has an additional disability caused by the October 2013 VA surgery, then is it at least as likely as not (a 50 percent or greater probability) that the proximate cause of such disability or disabilities is carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? In providing the opinion, please address the Veteran’s theory that fault on the part of VA is demonstrated in part by the radiologist’s finding that the Veteran had a gall bladder full of gall stones, when she did not have a gall bladder. In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing surgical treatment, discuss if VA failed to exercise the degree of care that is expected of a reasonable health care provider. c) If the Veteran has an additional disability caused by the October 2013 VA surgery, then is it at least as likely as not (a 50 percent or greater probability) that this additional disability was reasonably foreseeable as an ordinary risk of the treatment that would be disclosed in connection with the informed consent (primary health care provider explains the reasonably foreseeable risks associated with VA treatment or services furnished the Veteran)? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bonnie Yoon, 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.