Citation Nr: 21026156 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 20-03 957 DATE: April 30, 2021 ORDER Entitlement to service connection for a left shoulder disability, including a bone spur, and to include as secondary to service-connected right shoulder arthritis, is denied. Entitlement to service connection for a respiratory disability, claimed as a result of inservice asbestos exposure, is denied. Entitlement to service connection for a bilateral eye disability, claimed as bilateral cataracts and right eye pin-hole surgery, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a left shoulder disability had its onset inservice or that arthritis manifested to a compensable degree within one year after service; or that there is continuity of symptomatology; or that the disability is otherwise etiologically related to inservice injury or disease; or that a left shoulder disability was caused or aggravated by service-connected arthritis of the right shoulder. 2. The preponderance of the evidence is against finding that a respiratory disability, including asbestosis, had its onset inservice; or that there is continuity of symptomatology; or that a respiratory disability is otherwise etiologically related to inservice injury or disease or event, including alleged inservice exposure to asbestos. 3. The preponderance of the evidence is against finding that a bilateral eye disability, claimed as bilateral cataracts and right eye pin-hole surgery, had its onset inservice; or that there is continuity of symptomatology; or that an ocular disability is otherwise etiologically related to inservice injury or disease or event. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability, including a bone spur, and to include as secondary to service-connected right shoulder arthritis, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a respiratory disability, claimed as a result of inservice asbestos exposure, have not been met. 38 U.S.C. §§ 1101, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a bilateral eye disability, claimed as bilateral cataracts and right eye pin-hole surgery, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from June 1961 to June 1965. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of a Department of Veterans’ Affairs (VA) Regional Office (RO). In June 2020 the Board remanded the issues on appeal and also remanded claims for service connection for a left knee disability, a left ankle disability, a left leg disability, a right shoulder disability, and bilateral hearing loss. Thereafter, a September 28, 2020 rating decision granted service connection for right shoulder arthritis with a 20% rating; granted service connection for bilateral hearing loss with a noncompensable rating; granted service connection for degenerative arthritis of the left ankle, also with a noncompensable rating, all effective March 16, 2016. Notice of that decision was provided by letter dated September 29, 2020. A November 3, 2020 rating decision granted service connection for left knee arthritis, with total left knee replacement, with an initial rating of 10% from March 16, 2016, and 30% from September 5, 2017; and granted service connection for left leg neuropathy (claimed as left leg), with an initial rating of 10%, also effective September 5, 2017. The Veteran has not appealed either the initial ratings assigned or the effective dates of the grants of service connection. A November 3, 2020 supplemental statement of the case (SSOC) addressed the issues of service connection for a left shoulder disability, a bilateral eye disability, and a respiratory disability. On January 14, 2021, the Veteran’s VA Form 20-0996, Review Request: Higher Level of Review, was received as to the initial ratings assigned for right shoulder arthritis, bilateral hearing loss, and degenerative arthritis of the left ankle, citing to the RO notice letter of September 29, 2020. By RO letter of January 15, 2021, the Veteran and his attorney were informed that his VA Form 20-0996, “Decision Review Request: Higher Level Review” to seek further review had been received but could not be processed because he had not withdrawn from the legacy system the issues of bilateral hearing loss, left knee arthritis with status post total left knee replacement, and right shoulder arthritis. He was informed of his right to appeal that determination. In correspondence dated and received on February 17, 2021, the Veteran’s attorney stated that VA Form 9 had been filed on January 21, 2020 and then stated that an “August 25, 2020 Rating Decision” had stated that its actions were a full grant of the benefit sought and included notice of appeal rights, including instructions to use, inter alia, VA Form 20-0996, which had been done. It was alleged that the Veteran had properly appealed an “August 25, 2020” rating decision using the form instructed by the RO. Thus, the RO was requested to issue a supplemental statement of the case (SSOC). However, the Board notes that there is no rating decision in August 2020. Moreover, no VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), has been filed as to the ratings or effective dates of grants of service connection with respect to the September 2020 rating grants of service connection for right shoulder arthritis, bilateral hearing loss, and degenerative arthritis of the left ankle; or to the November 2020 rating grants of service connection for left knee arthritis, with total left knee replacement, or left leg neuropathy (claimed as left leg disability). From the foregoing, it appears that the Veteran, through his attorney, is seeking a Higher Level of Review at the RO as to the ratings assigned for bilateral hearing loss, degenerative arthritis of the left ankle, and right shoulder arthritis. Because service connection was granted for these disabilities by the September 2020 rating, these service connection claims are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (a grant of service connection extinguishes an appeal for such a claim). As there is no appeal remaining in the legacy system, the matter of the Veteran’s seeking a Higher Level of Review for the ratings assigned is referred to the RO for clarification. In correspondence dated and received on March 17, 2021, the Veteran’s attorney stated that the November 3, 2020 SSOC had been received and the Veteran continued his appeal as to service connection for a left shoulder disability and a respiratory disability, claimed as due to asbestos exposure. No argument was made as to a bilateral eye disability, but that claim was not formally withdrawn. Additionally, the attorney stated that he had only been “recently retained” and had not received a copy of the Veteran’s claim file and requested a copy of the claim file. Attached were over 100 pages of various medical articles. However, the Board observes that the Veteran’s attorney represented the Veteran at the time of the June 2020 Board remand and, also, has been granted access to the Veteran’s VA electronic claim file. Accordingly, there is no need to forward a copy of the Veteran’s records in paper form. Service Connection Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). However, not every manifestation of joint pain or any cough during service will permit service connection for, respectively, arthritis or pulmonary disease first shown as a clear-cut clinical entity at some later date. 38 C.F.R. § 3.303(b). Certain chronic diseases, such as arthritis and glaucoma, will be presumed related to service, absent an intercurrent cause, if shown as chronic in service; or, if manifested to a compensable degree within a presumptive period following separation from service; or, if noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or permanently aggravated by, an already service-connected condition. 38 C.F.R. § 3.310(a) and (b). This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Reasonable doubt will be favorably resolved but if the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001). As to lay evidence, while the Veteran is competent to describe his symptoms and readily observable disorders, he does not have the education, training or expertise to formulate a competent medical opinion linking matters which are of a complex medical nature and beyond the ken laypersons and which cannot diagnosed based on observation or analysis of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316. Initial Considerations A March 29, 2016, RO letter to the Veteran, and his then representative, a Veterans Service Organization, requested that he submit medical evidence that showed a diagnosis of the disease caused by asbestos and state whether he had ever had a biopsy performed as well as the results thereof, and state what disease he was claiming as due to asbestos exposure. He was requested to provide information as to when, where, and how he was exposed to asbestos during service, as well as the nature of his past employment. The Veteran did not respond. Pursuant to the June 2020 Board remand, the RO wrote the Veteran on June 18, 2020, again requesting the information previously sought in the March 29, 2016, RO letter to the Veteran. He was provided with releases needed to obtain any private clinical records and was requested to execute and return the releases. In another letter of that same date, he was requested to provide a statement regarding the circumstances of his “right eye pin-hole surgery” and requested to execute and return releases to obtain any records relating to his claims for service connection as to his left shoulder, respiratory disability, and bilateral eye disability. There was no response. In a September 29, 2020, RO letter to the Veteran and his attorney, and in compliance with the 2020 Board remand, it was again requested that he submit medical evidence that showed a diagnosis of the disease caused by asbestos and state whether he had ever had a biopsy performed as well as the results thereof, and stated what disease he was claiming as due to asbestos exposure. He was requested to provide information as to when, where, and how he was exposed to asbestos during service, as well as the nature of his past employment. Again, there was no response. In this regard, the duty imposed on VA to assist claimants is not a one-way street. When necessary or requested the veteran must cooperate with the VA in obtaining evidence. If a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (reconsideration denied, 1 Vet. App. 406 (1991)). In Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) it was stated that this was particularly true where "[t]he factual data required, i.e., names, dates and places, are straightforward facts and do not place an impossible or onerous task on appellant." Accordingly, the Board concludes that there has been full compliance with the 2020 Board remand. Entitlement to service connection for a left shoulder disability, including a bone spur, and to include as secondary to service-connected right shoulder arthritis Although it is neither shown nor contended that the Veteran sought or received treatment during military service for any left shoulder disability, it is contended that he developed disability of the left shoulder because of wear-and-tear from strenuous inservice activities and over compensating because of his now service-connected arthritis of the right shoulder. For the following reasons the Board will deny the claim. During service the Veteran sustained a right shoulder contusion in a 1965 vehicular accident which caused pain and limited motion, for which he was given light duty and used a sling for one week. There is no contemporaneous evidence of a left shoulder disability until a June 2014 VA outpatient treatment (VAOPT) record which noted that he had a history of two operations in about 1993 for left shoulder bone spurs. However, as noted, the Veteran has not cooperated in providing information as to any treatment in 1993, or even since 1993 and prior to the 2014 VAOPT record. In this connection the earliest evidence of continuing left shoulder symptoms following the 1993 left shoulder surgery is the June 2016 VA examination in conjunction with the Veteran’s claim for right shoulder disability, at which time he had tenderness or pain of the left shoulder. However, at that time which is 50 years after service and the inservice incurrence of service-connected right shoulder arthritis, he had full and painless left shoulder motion, without additional functional loss or range of motion on repetitive use testing. Further, he had no crepitus, decreased strength, or muscle atrophy of the left shoulder. Similarly, the examiner noted, at that time, that a rotator cuff condition of the left shoulder was not suspected nor was a clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint condition suspected. The minimal finding of only pain or tenderness without other clinical findings or evidence of functional loss or impairment weighs against the contention that the Veteran overcompensated by using his left shoulder. Numerous articles have been submitted in support of the claim which address the impact of rigorous activity, over-use, and over-compensation on the musculoskeletal system, including the shoulders. However, this information is generic in nature and not specific to the facts surrounding the Veteran’s claim. In contrast, on official examination of his left shoulder in August 2020 negative medical nexus opinions were rendered. This 2020 examination consisted of a review of the Veteran’s records, a personal interview, and a physical examination. In fact, the examiner specifically noted the Veteran’s contention that as to his left shoulder, he over compensated due to his right shoulder. However, the examiner also noted the Veteran’s history of having engaged in repetitive lifting for thirty years prior to his having retired from working in a steel mill. Moreover, the examiner reported and considered the Veteran’s inservice right shoulder injury, surgical removal of bone spurs in 1993, and a more recent 2019 left shoulder lifting injury documented in VAOPT records consisting of a rotator cuff strain. The 2020 examiner’s diagnosis was left shoulder osteoarthrosis and rotator cuff tendinopathy, but it was opined that these were less likely due to the service-connected right shoulder arthritis. The rationale was that the osteoarthrosis of the left shoulder was a condition caused by wear and tear of the cartilage that was generally found in individuals over 50 years of age, and his employment as a steel mill worker had exposed him to repetitive lifting. Also, as to the rotator cuff tendinopathy, this was due to a 2019 left shoulder rotator cuff strain from a lifting injury at that time, and the examiner further opined that there was with respect to any aggravation of the claimed left shoulder disorder, no aggravation was found. The Board finds that the 2020 examiner’s opinion is well founded not only because it was rendered after a personal interview and a physical examination, but also after a review of the Veteran’s records with consideration of his past clinical history as specifically applied to the facts of this case. Moreover, the Board also notes that the examiner’s opinion is otherwise consistent with the evidence of record demonstrating that despite any complaint of diminishing functional capacity of the left shoulder over the years the Veteran actually led a vigorous lifestyle. For examples, a July 18, 2019 VAOPT record shows that since retiring 20 years ago he had been an avid fisherman and hunter, walking all day and climbing trees while doing these activities, and only in the past two years had he had difficulty when hunting and fishing but this was due to respiratory complaints. This latter clinical notation is consistent with an earlier June 2014 VAOPT record which noted that, and again due to respiratory problems, during the last year he has lost the ability to "walk up a hill with a deer on his back." His ability to work at a strenuous occupation for thirty years after service and engage in vigorous recreational activities for many years and without any contemporaneous evidence, lay or clinical, of left shoulder problems weighs against the contention that the Veteran over compensated by using his left shoulder or is related to inservice strenuous activity. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a left shoulder disability and, so, there is no doubt to be favorably resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for a respiratory disability, claimed as a result of in-service asbestos exposure It is contended that the Veteran has asbestosis from inservice exposure to asbestos and, specifically, that that servicemembers that served at Camp Pendleton, California, had a greater incidence of exposure to asbestos. As to this, the Veteran’s DD 214 for his service from June 1961 to June 1965 shows that he was at Camp Pendleton from September 1961 to November 1961; he attended training at Camp Pendleton in February and March 1963; and he was at Camp Pendleton from February 1965 until discharged from service in June 1965. Service personnel records reflect that the Veteran served at Camp Pendleton from December 1964 to June 1965. The Veteran’s military occupational specialty (MOS) was artillery weapon repairman. However, there is no evidence that this MOS was likely to expose him to asbestos. In this regard, the service records are completely negative for any respiratory signs, symptoms, complaints, history, treatment, or diagnosis of any respiratory disability. On the other hand, for many years after service he led a vigorous life, working in a steel mill and engaging in recreational fishing and hunting but the earliest contemporary evidence of respiratory symptomology is VAOPT records in 2014, almost 50 years after his active service. Significantly, VAOPT records are clear that after service the Veteran worked for 30 years in a steel mill, retiring in 1996. See VAOPT records in June 2014 and of July 18, 2019 as well as the 24th and 25th of September 2020. These records show that when he retired from working in steel mill a chest x-ray was taken and he was told that he had been exposed to asbestos. The September 24, 2020 VAOPT record reflects that a CT scan of his chest revealed findings consistent with asbestosis. A VAOPT record the next day, September 25, 2020 states that “[h]e was presented at ILD [interstitial lung disease] conference at Northwestern 12/2019 with consensus diagnosis occupational/asbestos related ILD.” The evidence does not otherwise demonstrate that the Veteran’s asbestosis is due to any exposure to asbestos other than in his postservice employment for several decades in a steel mill. Additionally, a July 18, 2019 VAOPT record reflects that the Veteran had been diagnosed with obstructive sleep apnea only 2 months earlier, and an August 15, 2019 VAOPT record shows that his hemoptysis, i.e., coughing up blood, was most likely caused by bronchitis. However, there is nothing of record which links either OSA or any bronchitis to military service, and each was first shown about five decades after his military service. For these reasons and bases, the Board finds that the preponderance of the evidence is against the claim for service connection for a respiratory disability, including as due to claim inservice asbestos exposure. Thus, there is no doubt to be favorably resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for a bilateral eye disability, claimed as bilateral cataracts and right eye pin-hole surgery With respect to the claim for “pin-hole surgery” of the right eye, VAOPT records in June 2014 show that at the age of 12 the Veteran had been exposed to a black powder cannon blast, with loss of vision for 5 days, followed by a return of his vision. However, there is nothing of record which demonstrates or even remotely suggests that the Veteran had any surgery of his eyes prior to or during service, much less any “pin-hole surgery.” Because the Veteran has not cooperated by providing information requested, the Board can only speculate as to what the Veteran meant in his 2016 VA Form 21-526EZ, Application for Disability Compensation, when he claimed service connection for, in part, bilateral cataracts and “pin-hole Rt eye (surgery).” It would appear that his reference to “pin-hole” is to the service entrance examination which noted that his vision was correctable by use of pin hole testing, and that the reference to “surgery” is to his VA surgery in 2016 with extraction of the cataract, and lens replacement. The record otherwise demonstrates that he had not had any preservice surgery on either eye. The Veteran was found to have some defective vision at service entrance, when it was reported that he had “defective vision partially corrected by pinhole.” His uncorrected distant vision in the right eye was 20/30, correctable to 20/30, and his uncorrected distant vision in the left eye was 20/30, correctable to 20/20. However, a Report of Medical History reflects that the Veteran reported not having or having had eye trouble or any pertinent abnormality. Despite having had something lodged in his right eye in May 1963, when that eye was lavaged and an antibiotic applied, he had no injury or disease of the eyes which caused any chronic ocular disability and, more to the point, on examination for discharge from service in June 1965 no pertinent abnormality was found, and his uncorrected distant visual acuity was 20/20 in each eye. Thus, inasmuch as the Veteran’s vision was normal at service discharge, the evidence demonstrates that he did not incur any chronic ocular disability during his active service. Subsequently, there is no contemporaneous evidence of ocular disability until a June 2014 VAOPT record which shows that he reported a history of decreased distant vision over the past one to two years and requested glasses to improve his vision. In this regard, VAOPT records show that he had presbyopia. Presbyopia is a visual condition that becomes apparent especially in middle age and in which loss of elasticity of the lens of the eye causes defective accommodation, and inability to focus sharply for near vision. McNeely v. Principi, 3 Vet. App. 357, 364 (1992). “Presbyopia is ‘hyperopia and impairment of vision due to … old age. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1349 (28th ed. 1994).” Terry v. Principi, 18 Vet. App. 147 (Table); No. 99-2197, (nonprecedential Order of July 2, 2002). Presbyopia is a developmental refractive error of the eyes, and refractive errors of the eyes are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Additional VAOPT records demonstrate that in June 2014 the Veteran reported that early cataracts had been detected in 1999, more than three decades after service. Subsequently, in 2016 he underwent extraction of the cataract, and lens replacement in each eye. VAOPT records since 2014 also suggest that he may have glaucoma or hypertensive retinopathy but there is nothing that demonstrates or even suggests that either is in any manner related to his military service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a bilateral eye disability, claimed as bilateral cataracts and right eye pin-hole surgery, and as such there is no doubt to be favorably resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. All Disabilities The Board notes the Veteran and his representative’s contentions regarding the etiology of his claimed left shoulder, respiratory and bilateral eye disabilities. To the extent that the Veteran and his representative themselves contend that a medical relationship exists between his claimed left shoulder, respiratory and bilateral eye disabilities and his service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board’s categorical statement that “a valid medical opinion” was required to establish nexus, and that a layperson was “not competent” to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that left shoulder, respiratory and bilateral eye disabilities are not a disabilities subject to lay diagnosis as these diagnoses require medical training. More significantly, the Veteran and his representative do not have the medical expertise to provide an opinion regarding the claimed left shoulder, respiratory and bilateral eye disabilities etiologies. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). (Continued on the next page)   Thus, the Veteran and his representative’s assertions that there is a relationship between his claimed left shoulder, respiratory and bilateral eye disabilities and his service are not sufficient in this instance and are outweighed by other probative evidence of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection. The benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107(b). James A. DeFrank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, 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.