Citation Nr: 21028587 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 12-02 314 DATE: May 11, 2021 ORDER Entitlement to service connection for a left eye disability, to include cataracts, is denied. Entitlement to service connection for a bilateral eye disability other than cataracts, is denied. Entitlement to service connection for vertigo is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for right foot disability, to include hallux valgus, is remanded. Entitlement to service connection for left foot disability is remanded. Entitlement to service connection for a skin disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's cataracts and surgery are to a disease or injury in service. 2. The most probative evidence reflects that amblyopia clearly and unmistakably preexisted the Veteran's active duty. 3. The most probative evidence reflects that preexisting amblyopia was clearly and unmistakably not aggravated by any incident of the Veteran's active duty. 4. The competent and probative evidence is at least in equipoise that the Veteran's current vertigo began shortly after service and has continued since that time. CONCLUSIONS OF LAW 1. The criteria for service connection for left eye cataracts 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 an eye disability, other than cataracts, are not met. 38 U.S.C. §§ 1110, 1111, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for vertigo are met. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from April 1988 to April 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from March 2010 and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was last before the Board in March 2018, when it was remanded for additional development to provide the Veteran with additional examinations. These matters have now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran was provided with examinations. A December 2019 rating decision granted service connection for gouty arthritis (the Veteran's gout manifests in his elbows and other joints). An April 2020 rating decision granted service connection for right knee degenerative joint disease. As these grants represent full grants of the benefits sought, these issues are no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain diseases, such as an organic disease of the nervous system, including vertigo, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). For Persian Gulf Veterans service connection is warranted pursuant to 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 if a Veteran presents evidence (1) that he or she is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; 3) which became manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more during the presumptive period prescribed by the Secretary; and, (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a). Effective October 16, 2012, VA extended the presumptive period in 38 C.F.R. § 3.317(a)(1)(i) through December 31, 2021. See 77 Fed. Reg. 71,382 (2016). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service-connection. A veteran is presumed to have been in sound condition when enrolled for service, except for any disease or injury noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). When no preexisting medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111; Wagner, 370 F.3d at 1096; Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). If the presumption of soundness applies, the burden then shifts to the Government to rebut the presumption by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. As further explained in Horn v. Shinseki: Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness... the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. 25 Vet. App. 231, 235 (2012). "The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition." Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Id. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). 1. Entitlement to service connection for a left eye disability, to include cataracts. 2. Entitlement to service connection for a bilateral eye disability, other than cataracts. The Veteran asserts service connection for a bilateral eye disability (claimed as tunnel vision), and left eye cataracts. The Veteran has diagnoses of left eye cataract extraction and interocular lens implant and amblyopia, to include as reported at the November 2019 and April 2020 examinations. As such, the first element of service connection is met. Initially, concerning the Veteran's amblyopia, his service treatment records reported that he had eye problems (amblyopia OD childhood) in April 1988. Later records in January 1989 documented amblyopia. The April 2020 examiner stated that amblyopia preexisted service as it is a developmental condition. As such, the Board finds such evidence to clearly and unmistakable show that his amblyopia preexisted his period of active service that began in April 1988. The Veteran asserts that his eye disabilities are due to service, to include using a MULE laser. See 9/8/2011, VA 21-4138. The Board acknowledges the Veteran's contentions regarding his eyes disabilities, but he is not competent to provide etiology opinions as it requires specialized knowledge of ophthalmology. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such evidence is not competent, the Board does not find that it is relevant or probative of the vision matters on appeal. The Board previously found that the June 2017 (cataract) and August 2017 (amblyopia) examinations insufficiently addressed the Veteran's contentions. To gather competent medical evidence to assist the Board's adjudication, these claims were remanded for an opinion, which was obtained in November 2019 and April 2020. A November 2019 examination provided a negative nexus opinion for the Veteran's cataracts. The examiner, an optometrist, explained that the Veteran's cataract extraction and interocular lens implant were not aggravated or caused by service. In support, the examiner explained the service treatment records did not show cataracts, to include any trauma or disease that would contribute to the development of a cataract at a later date. The examiner acknowledged the Veteran's assertions of continuity of symptomology as due to the use of MULE laser since service. Concerning the Veteran's assertions that his cataract was due to the use of a MULE laser, the examiner stated that his left eye acuity was 20/20 throughout his military career, there was no evidence of traumatic accidental exposure to a MULE laser, and the 17 year gap between military discharge and cataract surgery showed that it was less likely than not that his cataract was due to the use of a MULE laser. An April 2020 opinion provided a negative nexus opinion for the Veteran's amblyopia. The examiner found that his disability preexisted service. Further, he found that the disability was not aggravated by service and there was no increase in the disability that was not due to the natural progression of the disease. The examiner reported that the Veteran's right eye acuity from November 2019 was 20/40 which was consistent or better than his right eye recordings during service (range of 20/30-20/75). Additionally, amblyopia is a development condition that arrests visual potential in an eye, and it does not worsen in degree. The examiner also found that it was not due to service or otherwise related to service, to include chemical exposure, as it preexisted service. The Board finds these opinions to have great probative value. The examiner thoroughly reviewed the medical records, supported his conclusions with appropriated rationale, and addressed the Veteran's contentions for his cataracts (as due to MULE laser exposure and continuity of symptomology) and his amblyopia (including chemical exposure). After review of the competent and probative evidence, the Board finds that the preponderance of the evidence is against service connection left eye cataracts as well as amblyopia. Concerning the left eye cataracts and surgery, the competent and probative evidence of records shows that the Veteran's cataracts manifested many years after service. The was no in-service trauma that caused his disability. Moreover, the Board acknowledges the Veteran's contentions regarding the use of a MULE lase. However, as he is not competent to opine on the etiology of his disability, competent and credible evidence was obtained in the November 2019 opinion. The examiner explained that the Veteran's records do not suggest trauma due to the use of a MULE laser. In support, the examiner noted his visual acuity during service which suggested no trauma. For the Veteran's amblyopia, his disability both preexisted service and there was no increase in his disability. The 2020 examiner reported that the Veteran's amblyopia preexisted service, and is a childhood disorder that does not increase in severity. Additionally, the Veteran's eye acuity remained in a consistent range during his military service. Currently, his eye acuity is the same or better than it was in service. The clear and unmistakable evidence of record shows the Veteran's disability both preexisted service and did not increase in severity. Therefore, the preponderance of the evidence is against a finding that the Veteran's disabilities are related to service. The available competent and probative evidence weighs against a nexus to service. As such, reasonable doubt does not arise, and the appeals are denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for a neurological disability, to include vertigo. The Veteran asserts service connection for a neurological disability, to include vertigo. After reviewing the relevant lay and medical evidence, the Board concludes that the Veteran has a current diagnosis of vertigo during the period on appeal, and that the evidence is at least in equipoise that it began in or shortly after service and has continued since then. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.310(a). He has a current diagnosis of vertigo, to include as reported at the January 2010 VA examination. The Board acknowledges the August 2017 and February 2020 examiners did not diagnose vertigo. However, as vertigo was reported during the period on appeal, the Board finds that the Veteran has a current diagnosis. As such, the first element of service connection is met. The Veteran's records tend to show that he first experienced and was diagnosed vertigo in 1993 as reported at the February 2020 examination. He explained that he was driving, experienced dizziness, and was hospitalized overnight. He was told that he had vertigo. The June 2010 examination documented the Veteran's statements that he had episodes of vertigo in 1992 during service and that they continued. He continues to have episodic vertigo. The Board finds the Veteran competent and credible to describe his vertigo beginning in or shortly after service and episodic vertigo continuing since that time. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). However, the Board also acknowledges that at the 2017 examination, the Veteran stated that his vertigo began in approximately 1995. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his vertigo disability initially manifested during service or within one year after separation from service. The Veteran has stated that his disability began in service or within one year after service in 1993. However, at an earlier examination, he reported that it began in approximately 1995. In this regard, the Board acknowledges that the Veteran may have misstated the exact year his vertigo began as the 2017 examination was approximately 25 years after he had exited service. time. 38 C.F.R. § 3.303(b), 3.309(a). The Board finds that the positive and negative evidence of record balances out. 38 C.F.R. § 3.102; see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits"). As such, the Board finds that the evidence is at least in equipoise that the Veteran's current vertigo manifested within one year of separation from service and has continued since that time. Therefore, service connection for vertigo is warranted. 38 C.F.R. § 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. 3. Entitlement to service connection for bilateral hallux valgus is remanded. The Veteran asserts service connection for various orthopedic disabilities, to include lumbar spine, left knee, and bilateral hallux valgus. He has current diagnoses of degenerative arthritis of the spine, osteoarthritis of the left knee, and hallux valgus of the right foot and degenerative arthritis of both feet. As such, the first element of service connection is met. Negative nexus opinions were provided for the Veteran's spine, left knee, and feet. For his back, the examiner stated that it was less likely than not due to service as cumulative trauma is a myth according to an AMA Guides Newsletter. Rather, age, familial aggregation, and intrinsic disc loading (body weight compared with the size of the disc) were the predominant factors. Concerning the Veteran's left knee, the examiner stated that there is insufficient medical literature (ANNALS OF THE RHEUMATIC DISEASE, 1977) to support parachute jumping as a definitive cause of knee arthritis. The Veteran's service treatment records did not show a left knee injury, and his left knee symptomatology could be attributed to gout. For his feet, the examiner stated that the Veteran did not have left foot hallux valgus deformity as it was not noted on an X-ray. For his right foot, the examiner stated that it was not treated in service, and that gout was not a risk factor for hallux valgus. For his degenerative arthritis, it was noted that it is a condition of aging, it was not reported in service, nor is associated with gout. A July 2010 examiner reported that the Veteran's feet disabilities were related to his BMI. The 2017 examiner associated the Veteran's left knee and spine disabilities with his BMI. As the examiners have reported that the Veteran's disabilities may be due to his BMI, the Board finds that service connection based on obesity as an intermediate step has been raised by the evidence of record. VA's General Counsel (GC) issued a precedential opinion on how the issue of obesity is to be assessed. One of the primary holdings of the opinion is that obesity is not a disability for purposes of VA benefits; hence, it cannot be the subject of service connection. VAOPGCPREC No. 1-2017 (Jan. 6, 2017); see also Marcelino v. Shulkin, 29 Vet. App. 155 (2018). The GC recognized further, however, that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). As such, VA may service connect the current disability on a secondary basis under 38 C.F.R. § 3.310(a) to include aggravation of a non-service-connected disability. See Walsh v. Wilkie, 32 Vet. App. 300, 303-04 (2020) (explaining service connection may be granted on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability). To determine whether obesity is an intermediate step between a service-connected disability and the development of a current disability that may be service connected on a secondary basis, the following criteria must all be satisfied: 1) the service-connected disability must have caused the Veteran to become obese; 2) the obesity, as a result of the service-connected disability must have been a substantial factor in causing the potential secondary disability; and 3) the potential secondary disability would not have occurred but for the obesity caused by the service-connected disability. The Veteran's weight at enlistment was 190 pounds. His weight in 2017 was 288 pounds. The Veteran is service connected for gouty arthritis. In this regard, his medical records show his disability causes joint pain and hinders physical activity as it is difficult to move the joints. The Board finds such pain could prevent the Veteran from exercising. As such, the Board finds that an addendum opinion is warranted to fully address the Veteran's obesity in relation to his claims for service connection. 4. Entitlement to service connection for a skin disability is remanded. The Veteran asserts service connection for a skin disability. He has a diagnosis of tinea corporis as reported at the 2019 examination and skin rash, non-urticarial at the 2017 examination. As such, the first element of service connection has been met. The 2017 examiner provided a negative nexus opinion that the Board previously found insufficiently addressed the Veteran's contentions. The 2019 examiner provided a negative direct service connection opinion. However, secondary service connection has been raised by the record, and this contention has not been previously addressed by an examiner. In the November 2019 examination, the Veteran stated that he was told at 1993 hospitalization that he has allergic reactions to allopurinol, which he takes for his now service-connected gout disorder. Additionally, the 2010 examination reported allergic drug reactions claimed as skin rashes. As such, the Board finds that an addendum opinion is warranted to address secondary service connection for the Veteran's skin disabilities. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All attempts to obtain any VA treatment records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. After completing #1, request an addendum or schedule the Veteran for an examination for his lumbar spine arthritis, left knee arthritis, and feet disabilities if necessary. -- For the foot examination, identify any foot disabilities during the period on appeal (June 2009 onward). Concerning the Veteran's hallux valgus, please clarify/perform any necessary testing to confirm if the Veteran has bilateral hallux valgus during the period on appeal, or if it is only in one foot. See 11/25/2019 C&P Examination Feet (reporting hallux valgus in the right foot); 2/8/2010, VA Examination Feet (reporting bilateral hallux valgus). Then, each examiner is to respond to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's lumbar spine disability, left knee arthritis, and foot disability were caused by a disease or injury in service? (b.) If no to question (a), whether the obesity/weight gain as a result of the service-connected disabilities was a substantial factor in causing the lumbar spine disability, left knee arthritis, foot disability; (c.) Whether the lumbar spine disability, left knee arthritis, foot disability would not have occurred but for the obesity/weight gain caused by the service-connected disabilities. (d.) If no to the above questions (b)-(c), is it at least as likely as not (50 percent or greater probability) that his disabilities were either 1) proximately due to OR 2) aggravated by any service-connected disability. In arriving at the opinion on lumbar spine disability, left knee arthritis, foot disability and weight gain/obesity, inform the examiner that all lay evidence must be considered, including any articles submitted by the Veteran and his statements. Inform the examiner further that, for VA purposes, obesity is not a disease or disability for which service connection may be granted, but it may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis. To determine whether any weight gain or obesity is an "intermediate step" between either any or all of the Veteran's service-connected disabilities and his lumbar spine disability, left knee arthritis, foot disability, the examiner is to fully answer the above questions to assist the Board with adjudication of these matters. **In reaching an opinion on weight gain/obesity, the examiner must consider the Veteran's joint pain from his service-connected gout disability and the effect it has on his ability to perform physical activity/exercise.** 3. After associating any treatment records with the claims file, then obtain an addendum opinion or schedule the Veteran for an appropriate examination if necessary, to determine the etiology of the Veteran's skin disorders. The claims file is to be made available to the examiner and reviewed in conjunction with the examination. -- Identify any skin disabilities on the period on appeal (June 2009 onward). Then, address whether: (a.) It is at least as likely as not (50 percent or greater probability) that his disorder was caused by a disease or injury in service. (b.) If no, is it at least as likely as not (50 percent or greater probability) that any disability was either 1) proximately due to OR 2) aggravated by any service-connected disability, to include medication for service-connected disabilities? **The Veteran has stated that he has had allergic reactions to allopurinol. The examiner is to address this contention.** See 11/25/2019, C&P Examination Skin. 4. Lastly, if the Veteran is now service connected for any of the remanded disabilities per the Veterans Benefits Administration (VBA), and any remanded disability is not found to be caused by a disease or injury in service, please address whether the disability: (a.) Is it at least as likely as not (50 percent or greater probability) that any disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? The term "aggravated" refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. Inform EACH of the above examiners that a comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.