Citation Nr: 21027682 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-06 872A DATE: May 6, 2021 ORDER Entitlement to service connection for eye condition is denied. Entitlement to service connection for residuals of back injury is denied. REMANDED Entitlement to service connection for residuals of traumatic brain injury (TBI) other than a scar is remanded. Entitlement to service connection balance and equilibrium condition is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's eye disability began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's residuals of back injury began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for an eye disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for residuals of a back injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1973 to August 1978. In a December 2016 decision the Board of Veterans' Appeals (Board) denied the above listed claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a April 2018 Memorandum Decision, the Court vacated the portion of the December 2016 decision that denied the above listed claims and remanded the matters for compliance with the Court's instructions. These matters were previously remanded in December 2018 and November 2020 Board decisions. A remand by the Board imposes a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Upon review, the Board finds that with respect to the Veteran's claim for entitlement to service connection for an eye disability, the remand directives have been complied with. The Veteran's claims for entitlement to service connection for low back disability, entitlement to service connection for residuals of traumatic brain injury (TBI) and entitlement to service connection for balance and equilibrium condition are discussed in the remand section below. The Board notes that the Agency of Original Jurisdiction (AOJ) requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal Criteria Generally, to establish a right to compensation for a present disability a veteran must show: (1) a present disability; (2) an 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, 1167 (Fed. Cir. 2004). 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). 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). Analysis 1. Entitlement to service connection for eye condition. The Veteran contends that he is entitled to service connection for an eye condition. Specifically, during a September 2011 VA examination the Veteran asserted that he had a motorcycle accident in service in 1977. The Veteran reported ongoing symptoms of blurred vision and sensitivity to light. A March 2020 VA examination notes that the Veteran has a current disability of nuclear cataracts and corneal dystrophy. With respect to an in-service injury, the Veteran's July 1978 examination in service notes that the Veteran was involved in a bike accident in 1977. Thus, the question before the Board is whether there is a nexus, or etiological relationship between the Veteran's eye disability and his in-service injury. No vision abnormalities were noted during the Veteran's March 1973 examination in service; the Veteran had 20/20 vision, bilaterally. Similarly, no vision abnormalities were noted during the Veteran's July 1978 examination in service and the Veteran maintained 20/20 vision bilaterally. The Veteran also served in the Air Force reserves from August 1978 to February 1985. Notably, a March 1983 eye consultation during his reserve service notes 20/20 vision, bilaterally. Moreover, the record contains no ocular complaints at any point during the Veteran's reserve service. Post service, a July 2010 VA examination notes the Veteran's eyes as having normal fundus without AV changes, hemorrhage, or exudates. The Veteran maintained normal extra ocular movements and field of vision. There was no evidence of uncorrectable refractive error. In August 2010, during a VA appointment the Veteran endorsed symptoms of blurred vision. August 2010 VA treatment records note that the Veteran endorsed having some decreased vision and reported head/ocular trauma during a motorcycle accident in 1977, however the Veteran denied any past ocular issues. In October 2010 the Veteran reported vision problems including blurring and trouble seeing; he reported that his right eye was "going down real fast." The Veteran was afforded a VA examination in September 2011. The examiner concluded that the Veteran had reduced visual acuity in both eyes with evidence of very minimal nuclear cataracts in each eye but no other ocular pathology other than hyperopia, astigmatism, and presbyopia. The examiner asserted that the Veteran did not appear to have any ocular pathology that could be related to any in-service event, disease, or trauma. October 2013 VA treatment records diagnose the Veteran with dry eye, cataracts, and presbyopia. Upon examination the Veteran was noted to have severe central superficial punctate keratitis (SPK). December 2013 treatment records not that corneal transplant was contemplated. The Veteran was afforded a VA examination in March 2020. The examiner noted current eye disabilities of cataracts diagnosed in 1993 and corneal dystrophy diagnosed in 2010. The Veteran reported that around 2001, unrelated to illness or injury the Veteran was told he had cataracts and corneal problems. The Veteran noted that at that time his vision was starting to become blurry and continues to be blurry. The Veteran declined surgery or other interventions; he reported that he currently functions well while wearing corrective lenses and reported no difficulties performing ordinary daily activities. On examination, the examiner noted uncorrected vision of 10/200 and noted that the Veteran's decrease in visual acuity is attributable to his cataracts, which are causing moderate reduction of visual acuity in both eyes. There was no evidence of an incapacitating episodes attributable to an eye condition. The examiner opined that the Veteran's eye disabilities are less likely than not related to service. As supporting rationale, the examiner noted that a February 1983 eye exam, approximately four years after separation from active duty military service, shows visual acuity of 20/20 bilaterally. The examiner further noted that cataracts are a typical age related finding and are not traumatic in nature and therefore unrelated to the 1977 accident or any service related event. Further, the corneal dystrophy which was initially noted in 2010 is an inherited condition that effects both eyes and progresses over time. The Board affords probative weight to the March 2020 VA examination as it is based on a review of the evidence of record and the Veteran's subjective statements. It is further supported by the record which shows no ocular complaints during active duty service, 20/20 vision bilaterally four years post active duty service and no diagnosis of an eye disability prior to 1993. The Board notes that in a September 2020 statement the Veteran's representative alleged that the March 2020 VA examination is inadequate because it does not address the Veteran's contentions and discounts the existence of a motorcycle incident. The Board cannot agree. The examiner specifically noted the Veteran's statements regarding the history of his disability and the examiner noted that the Veteran was involved in an MVA accident in 1977. The March 2020 VA examination is adequate. The Board has considered the Veteran's lay statements however, the Veteran has not been shown to have the experience, training, or education necessary to give a probative etiology opinion on the claimed disabilities. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the complexities of the eye. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Ultimately, while the evidence establishes a current disability and an in-service injury the preponderance of the evidence of record is against a nexus between the two. Entitlement to service connection for eye disability is denied. 2. Entitlement to service connection for residuals of back injury is remanded. An April 2018 memorandum decision from the Court of Appeals for Veterans Claims (Court) remanded the Veteran's claim for back injury residuals including degenerative disc disease to assess whether the Veteran's disability is the result of a motorcycle accident in service. Evidence including August 1999 private treatment records establishes that the Veteran has a current disability of degenerative arthritis of the spine. Further, the record establishes that the Veteran suffered a motorcycle accident during active duty military service as noted above. Nonetheless, the record does not establish a nexus or etiological relationship between the two. In service, a March 1973 medical examination notes the Veteran's musculoskeletal system as normal. A July 1978 examination in service notes the Veteran was involved in a bike accident in 1977, however the examination also noted the Veteran's musculoskeletal system as normal. Subjectively, the Veteran denied any history of back pain. Post service, August 1999 imaging noted moderate degenerative disc disease of the lumbar spine. December 2000 treatment records note that the Veteran reported having back pain for eight years. December 2007 private treatment records note that the Veteran reported back pain resulting from a 1980's airplane accident. During an August 2010 evaluation, the Veteran endorsed back pain and reported that it was the result of falling out of a tree during active duty service. The Veteran also reported having several lumbar puncture secondary to meningitis in the past which he believes may have added to his back pain etiology. Subsequent treatment records continue to note ongoing complaints of and treatment for back disability. The Veteran was afforded a VA examination in July 2010 in connection with a TDIU claim. The examiner noted that the Veteran had back pain that was under control with treatment. The Veteran was afforded an VA examination in March 2020. The examiner noted a diagnosis of degenerative arthritis of the spine. The examiner opined that the Veteran's degenerative disc disease was less likely than not related to service. As supporting rationale, the examiner noted that the Veteran's degenerative disc disease is normal for the Veteran's age group and that the Veteran left service with no complaints of any form of back pain. A January 2021 addendum opinion opined that the Veteran's degenerative disc disease was less likely than not related to service, noting that service treatment records and the Veteran's separation examination do not note any back condition during service, further the Veteran reported that his back injury occurred from an airplane accident in 1982. A January 2021 addendum opinion also opined that the Veteran's degenerative disc disease was less likely than not aggravated beyond its natural progression noting that the Veteran's 1978 exam in service was silent as to a back condition. Obviously, this opinion was requested in error as there is no indication that the Veteran had a back disability which pre-existed service. The preponderance of the evidence of record does not establish a nexus between the Veteran's degenerative disc disease and an in-service injury. Service treatment records do not note any complaints or treatment for back disability in service. Moreover, post service the record shows no evidence of a lumbar disability prior to 1999, approximately two decades after the Veteran's active duty military service. In rendering a decision the Board has considered the Veteran's lay statements and notes that the Veteran has reported several different causes of his back pain including falling off a tower in service, falling out of a tree during active duty service and involvement in an airplane accident in 1982. The Board has reviewed the evidence of record including the Veteran's active duty service treatment records as well as his reserve service treatment records. While the records document complaints and treatment in service for injuries including reports of sinusitis and bronchitis, the Veteran's 1977 bike accident and a 1982 ankle injury, there is no evidence that the Veteran fell and sustained any back injuries in service. Thus, it stands to reason that if the Veteran was experiencing symptoms in service, they would have been noted in the Veteran's service treatment records. Further, based on this collective body of evidence, the Board finds that any statements as to continuity of symptoms referable to the Veteran's back injury since service are not credible based on the record, as a whole, including no mention of this for several decades following service and the Veteran's inconsistent assertions of when he began experiencing back problems. See Cartright, 2 Vet. App. at 25 (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony.) Additionally, the Veteran has not been shown to have the experience, training, or education necessary to give a probative etiology opinion on these claimed disabilities. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the complexities of the spine, to include as due to remote trauma and/or aging. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, there are no records prior to 1999 suggesting a diagnosis of back injury or residuals of back injury. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). There is no probative opinion (i.e., a clinical opinion based on review of pertinent records) that it is as likely as not that the Veteran has a back injury causally related to, or aggravated by, his service, to include a period of reserve service, and his statements asserting continuity of symptoms since service are not credible. See Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). Thus, as the preponderance of the evidence is against the claim, entitlement to service connection for residuals of back injury to include as due to an in-service motorcycle accident is denied. REASONS FOR REMAND 3. Entitlement to service connection for residuals of traumatic brain injury (TBI) other than a scar is remanded. The April 2018 Court decision remanded the Veteran's claim for entitlement to service connection for traumatic brain injury (TBI) noting that the Board did not request an opinion as to whether the Veteran's TBI was related to his 1977 motorcycle accident. More recently, the November 2020 Board decisions remanded the issue of entitlement to service connection for residuals of TBI. The decision noted that the VA opinion with respect to the claim for TBI was inadequate because it does not comment on the notation that the Veteran was provided with a device in November 2010 to assist with memory issues. Following the Board remand, a VA addendum opinion was obtained. However, the examiner still did not comment on November 2010 VA treatment records which shows that the Veteran had mildly impaired memory and that the Veteran was provided with an electronic cognitive device. Compliance with a remand is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As the Board's remand has not been substantially complied with, remand is warranted for an addendum opinion. 4. Entitlement to service connection balance and equilibrium condition is remanded. The April 2018 Court decision remanded the Veteran's claim for entitlement to service connection for balance and equilibrium condition noting that the Board did not request an opinion as to whether the Veteran's balance and equilibrium conditions are related to his 1977 motorcycle accident. The January 2021 VA addendum opinion with respect to the Veteran's balance and equilibrium condition is inadequate. The examiner offers a negative etiology opinion. As supporting rationale the examiner notes that there was no information in the service treatment record to indicate that the Veteran developed balance and equilibrium condition during service, the report of medical separation exam on was silent on balance and equilibrium condition, and the balance and equilibrium condition is likely caused by the Veteran's benign paroxysmal positional vertigo. 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). Therefore, the fact that the Veteran did not experience any balance and equilibrium condition in service is not sufficient rationale to support a negative etiology opinion. Further, the examiner did not opine whether the Veteran's paroxysmal positional vertigo is a result of the Veteran's in-service injury including a motorcycle accident. Remand is warranted for an addendum opinion. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. After all outstanding VA treatment records have been obtained, obtain an addendum opinion from an appropriate clinician regarding the Veteran's traumatic brain injury (TBI). The clinician is asked to opine whether it is least as likely as not that the Veteran's TBI or residuals thereof are related to the Veteran's military service to include the Veteran's 1977 motorcycle accident. In rendering an opinion, the clinician should address whether the Veteran's memory issues, as noted in November 2010 VA treatment records are a residual of a Veteran's traumatic brain injury. The clinician must consider all evidence of record and must support their opinion with adequate rationale. The Veteran is to be presumed credible for the limited purpose of the addendum opinion. 3. After all outstanding VA treatment records have been obtained, obtain an addendum opinion from an appropriate clinician regarding the Veteran's balance and equilibrium condition. The examiner should opine whether the Veteran's balance and equilibrium condition is related to military service, to include his motorcycle accident. The examiner should also opine whether the Veteran's benign paroxysmal positional vertigo or any other disability manifesting in a balance and equilibrium condition is related to the Veteran's military service, to include the Veteran's 1977 motorcycle accident. The Veteran is to be presumed credible for the limited purpose of the addendum opinion. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.