Citation Nr: 21026050 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-16 781 DATE: April 29, 2021 ORDER Entitlement to service connection for residuals of a right eye injury is denied. FINDINGS OF FACT 1. The appellant has not presented credible evidence of a right eye injury during active duty for training (ACDUTRA). 2. There is no probative evidence of a right eye injury or disorder in service or evidence linking a current eye disorder to service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a right eye injury have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant served in the National Guard and had active duty for training (ACDUTRA) from November 1974 to April 1975. This appeal to the Board of Veterans’ Appeals (Board) is from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the appellant testified at a Board video conference hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record. In May 2019 and July 2020, the Board remanded the matter. Entitlement to service connection for residuals of a right eye injury. Service connection may be granted for a 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(a). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). As a threshold matter, “veteran” status must be established as a condition of eligibility for service connection benefits. Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013) (observing that it is “axiomatic that, to receive VA disability compensation benefits, a claimant must first establish veteran status”). Service connection may be granted for disability resulting from disease or injury incurred during ACDUTRA. See 38 U.S.C. § 101(24)(B); 38 C.F.R. § 3.6. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. Active military service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. 38 U.S.C. § 1106; 38 C.F.R. § 3.6(a). Generally, an individual who has only Reserve or National Guard Service is not a veteran as legally defined. In the service connection context, this means that the presumption of soundness upon entry into service and the presumptive service connection provisions of 38 C.F.R. § 3.307, applicable to active duty, would not apply to ACDUTRA. 38 U.S.C. §§ 1111, 1112, 1137; 38 C.F.R. § 3.307. In making its decision, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board can weigh lay testimony and decide whether the testimony supports a finding of an in-service incurrence. Barr v. Nicholson, 21 Vet. App. 303 (2007). When determining the credibility of lay evidence, the Board must properly consider internal consistency, factual plausibility, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). 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. 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. Alemany v. Brown, 9 Vet. App. 518 (1996). Here, the appellant does not have any active duty service or a service-connected disability attributed to his ACDUTRA, so he has not achieved “veteran” status. As such, the presumptions of soundness and aggravation cannot apply to his claim. Accordingly, he is not presumed sound upon entry into his ACDUTRA service, and the burden to establish incurrence or aggravation in service remains with the appellant. The appellant contends that his right eye was injured by an M16 on the rifle range in 1974 when something blew back into his eye. He stated that after the injury he wore an eye patch for a few weeks. See October 2018 Hearing Transcript. His September 1974 service enlistment examination shows the evaluation of his eyes and vision was normal and he had no history of an eye problem. Similarly, his March 1975 examination for release from ACDUTRA contains no eye complaints or findings and he reported being in good health. See January 2015 STR. The earliest available post-service treatment records begin in 2008, and a March 2012 VA treatment record is the first to address his eyes. See March 2014 CAPRI records and January 2015 Medical Treatment Record – non-Government Facility. The March 2012 general examination shows the appellant had no corneal lesions and the only finding was exudates. A June 2012 optometry consult shows the appellant reported having some type of corneal disease that was noted when he was incarcerated. He also reported a history of shrapnel or gun metal in his right eye in 1974 and having floaters since the injury. The appellant provided a printout from a private clinician with a list that included corneal dystrophy. The examination revealed circular foreign body scars. The VA clinician offered an assessment of corneal foreign body scars, bilateral, and noted this was previously read as corneal dystrophy, but there was no evidence of dystrophy on examination. See March 2014 CAPRI records. November 2012, April 2013, and November 2013 treatment records show the appellant has reported being able to see pieces of shrapnel in his eye, but clinicians have found no evidence of it. See February 2015 and September 2020 Medical Treatment Record – Non-Government Facility. Although bilateral glaucoma was suspected in October 2015, the first assessment of bilateral glaucoma is in June 2017. See March 2018 CAPRI records. There are additional treatment records related to the eyes, but none offer an opinion or suggests that there is a link between a current right eye disorder and the appellant’s service; therefore, the weight of the evidence is against the claim. The appellant is competent to report that he had a right eye injury during service, but his testimony is not credible. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); see also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). Service treatment records do not corroborate his assertion of a right eye injury during ACDUTRA. Prior to being released from ACDUTRA, he had a March 1975 examination that reveals normal vision and the examiner found no abnormality in the right eye. Since the appellant’s history of an injury is not credible it in not probative to establish in in-service event. He also testified that T. Kinchen witnessed the injury, but he did not provide a statement from him to corroborate the incident. There is no evidence of foreign body cornea scars until June 2012. The Board finds it unlikely the scars are related to the reported in-service injury since the scars are found in both eyes and the appellant claimed to have only had an in-service injury to the right eye. He also testified in October 2018 that he had no problem with the left eye. There is also the March 1975 eye examination that revealed no evidence of a scar or any other residual of an eye injury. Thus, the evidence does not suggest a relationship between service and an in-service right eye injury. The Board also notes that the appellant has bilateral glaucoma, but there is no evidence of this in service or until 42 years after his ACDUTRA and no evidence that suggests a link between service and glaucoma. (Continued on the next page)   An opinion was not obtained to determine whether the appellant has right eye disorder related to an in-service injury, since the evidence does not suggest this. Under McLendon, VA is obligated to provide an examination when the record contains (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability), (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The appellant has not provided credible evidence of a right eye injury in service, his March 1975 examination at the end of his ACDUTRA contains no evidence of a right eye disorder, and there is no evidence that suggests his current cornea scars or glaucoma are related to an in-service injury. For these reasons, the duty to obtain a VA medical opinion is not triggered. McLendon, 20 Vet. App. at 81; 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i)(C). In the absence of an in-service event, injury, or disease or evidence suggesting a nexus between service and a current right eye disorder, the preponderance of the evidence is against the claim. In this case, the Board finds that the benefit-of-the-doubt rule does not apply, so the claim must be denied. See 38 U.S.C. § 5107(b); see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Bredehorst, 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.