Citation Nr: 21039759 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 10-38 690 DATE: July 1, 2021 ORDER Entitlement to service connection for residuals of an eye injury, to include myopia, astigmatism, and presbyopia, is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) from October 10, 2007, to October 21, 2009 is remanded. FINDING OF FACT The Veteran's myopia, astigmatism, and presbyopia are considered to be congenital diseases or defects for which service connection cannot be granted, and the evidence does not show a superimposed disease or disability resulting in additional levels of disability. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of an eye injury, to include myopia, astigmatism, and presbyopia, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1993 to April 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. This case was most recently before the Board in June 2020 when the issues currently on appeal were remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. See March 2021 supplemental statement of the case. 1. Entitlement to service connection for residuals of an eye injury is denied. The Veteran contends that he has an eye disability, to include residuals of an injury from being hit from another soldier with his glasses being jammed through his eyelid and requiring stitches. See March 2008 Statement in Support of Claim. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the of filing the claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). A layperson is generally incapable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The record reveals that the Veteran has been diagnosed with myopia, astigmatism, and presbyopia. See e.g., February 2012 VA treatment records. As such he has a current diagnosis. As an initial matter, in his March 2008 Statement in Support of Claim, the Veteran asserted that he had damage from being hit by another soldier and having his eyeglasses jammed through his eyelid. A review of the Veteran's treatment record does not identify traumatic damage to the eye. Nor does the Veteran's service treatment record identify treatment related to his glasses being jammed into his eyelid. As such the record does not demonstrate a traumatic injury to the eye involving stitches. A review of the Veteran's service treatment records indicates that in August 1995 he was diagnosed with CMA (compound myopic astigmatism) and blepharitis. The Veteran's March 1997 separation examination noted he had an abnormal clinical evaluation of his eyes that was noted as CMA and soft CL (contact lens). As such the Veteran has an in-service injury, disease, or illness. The question remaining for the Board is whether the Veteran's current diagnosis of myopia, astigmatism, and presbyopia is related to his military service. A preponderance of the evidence is against such a finding as the Veteran's current diagnosis is a congenital disease or defect. Generally, a congenital disease or defect is not service connectable as a matter of express VA regulation. See 38 C.F.R. §§ 3.303 (c), 4.9. The only possible exception is if there is evidence of additional disability due to aggravation during service of the congenital disease, but not defect, by superimposed disease or injury. See VAOPGCPREC 82-90. VA's General Counsel has held that a congenital defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90 (July 18, 1990). This General Counsel opinion concluded that a defect differed from a disease in that a defect is "more or less statutory in nature" while a disease is "capable of improving or deteriorating." See VAOPGCPREC 82-90 at p. 2. Congenital or developmental defects, including refractive errors of the eyes, are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127. Actual pathology, other than refractive error, is required to support impairment of visual acuity. Id. In other words, in the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia, and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Id. Service connection may be granted for hereditary diseases that either first manifest themselves during service or which pre-exist service and progress at an abnormally high rate during service. VAOPGCPREC 67-90 (July 18, 1990) published at 55 Fed. Reg. 43253 (1990) (a reissue of General Counsel Opinion 008-88 (September 27, 1988). The Board notes that myopia, astigmatism, and presbyopia (farsightedness) are defined as refractive errors of the eye. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1225 (32d ed. 2012). Refractive errors of the eyes are congenital or developmental defects and not a disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Id. Thus, VA regulations specifically prohibit service connection for refractory errors of the eyes unless such defect was subjected to a superimposed disease or injury. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). As such, service connection cannot be granted for myopia, astigmatism, or presbyopia as a matter of law. There is no competent medical evidence of record indicating that there is a superimposed disability on top of the Veteran's diagnosed myopia, astigmatism or presbyopia affected or blurred his vision. Therefore, an opinion as to the issue of a superimposed disability is not warranted. Although the Veteran's August 1995 Service Treatment Record indicates he was assessed with blepharitis at the time, a review of the Veteran's post service treatment record does not indicate he was diagnosed with blepharitis. Because he does not have a current diagnosis related to the eyelids, to include blepharitis, service connection for blepharitis is not warranted. As discussed above the Veteran reported that he was hit by another soldier and his glasses were jammed through his eyelid. However, a review of the relevant treatment record does not indicate a diagnosis related such an injury. Although the Veteran reported he received multiple stitches sometime in 1995 the August 1995 examination above did not note such issues as was reported as a routine examination. The Service treatment record after the August 1995 examination does not indicate the presence of a superimposed injury to the eye due to the reported eye injury with stitches. Nor does the record otherwise suggest that there is a superimposed disease or injury. The August 1995 treatment for his eyes specifically noted that the Veteran had not had a serious eye injury and the reason for the examination was a routine exam for lost glasses. Nor does the record otherwise indicate a superimposed injury or illness. As such there is no evidence of a superimposed disease or injury. Although VA treatment records establish a current diagnosis of myopia, astigmatism or presbyopia, these are refractive errors of the eye for which service connection cannot be granted as a matter of law, and there is no competent and credible evidence of a superimposed disability affecting the Veteran's vision. 38 C.F.R. §§ 3.303 (c), 4.9. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran seeks to establish service connection for hypertension. An April 2012 VA examiner opined that the Veteran's hypertension was less likely as not caused by or related to his service connected back condition. In support of this conclusion, the examiner, in pertinent part, questioned if there was an actual diagnosis of hypertension and noted that systolic blood pressure had been over 150 on only two occasions and diastolic blood pressed had been over 100 only once. The Board finds that the April 2012 VA opinion is inadequate. The examiner did not provide an opinion as to whether the Veteran's hypertension was aggravated by his service-connected back disability. Moreover, the examiner did not provide an opinion as to whether the Veteran's hypertension is directly related to the Veteran's military service. The Veteran's service treatment records demonstrate that in August 1996 his blood pressure was 120/90. This in-service incident of an elevated blood pressure warrants an opinion as to direct service connection. The Board notes that hypertension is defined as diastolic blood pressure that is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm; or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.10 Diagnostic Code 7101 Note (1). However, the April 2012 VA examiner limited the consideration to systolic blood pressure over 150 and diastolic blood pressure over 100. This distinction is important in this case because as noted above the Veteran's blood pressure in August 1996, during his service, was at the threshold of 90mm but was not within the threshold considered by the VA examiner. Furthermore, a review of the record reveals multiple instances wherein the Veteran's blood pressure was above the regulatory threshold. Treatment records furnished by the Social Security administration show that the Veteran's blood pressure was measured at 140/100 in January 2007 and April 2007. An October 2007 treatment records demonstrates that his blood pressure was 134/90. A February 2009 treatment records shows that the Veteran's blood pressure was 159/97. A December 2010 VA treatment record demonstrates that his blood pressure was 147/94. A January 2011 VA treatment record shows that his blood pressure was 150/96. This evidence demonstrates that there were multiple times when the Veteran's blood pressure was above the regulatory threshold and therefore requires further consideration by a VA examiner. Further this evidence was not addressed by the examiner and conflicts with the stated rationale. Based on the foregoing, the Board finds that a remand is required in order to obtain an addendum opinion as to the etiology of the current hypertension. 2. Entitlement to service connection for a left hip disability is remanded. The Veteran seeks to establish service connection for a left hip disability. A December 2020 VA examiner opined that it was less likely than not that the Veteran's left hip disability was incurred in or caused by the claimed in-service injury, event, or illness. To support this conclusion the examiner stated, in pertinent part, that there was no evidence to support that left hip pain manifested in the first year of separation from military service. However, there is evidence in the record that is not consistent with this rationale. During an August 1997 VA examination, the Veteran reported pain in the hips. A November 1997 treatment record demonstrates that the Veteran reported pain in the hips. A January 1998 treatment records demonstrates that the Veteran had stiffness and swelling in the hips. An October 2003 VA treatment record demonstrates that the Veteran reported that over the prior five years he had multiple joint pains and related constant pain in his hips. This evidence of hip pain within a year of the Veteran's service conflicts the examiner's rationale that there was no evidence that left hip pain manifested in the first year of separation from service. The December 2020 also opined that the Veteran's left hip pain was less likely than not aggravated beyond its natural progression by his service-connected back disability (thoracic spine arthritis). However, the examiner did not provide an adequate rationale for this opinion. Based on the foregoing, the Board finds that a remand is required in order to obtain an addendum opinion as to the etiology of the current left hip disability. 3. Entitlement to service connection for fibromyalgia is remanded. The Veteran seeks to establish service connection for fibromyalgia. A December 2020 VA examiner opined that it was less likely than not that the Veteran's fibromyalgia was incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the examiner stated that fibromyalgia is pain and stiffness not only in joints but all over the body. The examiner noted that the January 2020 examination was negative for any trigger point pain which is a hallmark for fibromyalgia. The January 2020 examiner stated that the Veteran did not have any pain at pressure points during the assessment and the Veteran was never treated for fibromyalgia. However, as noted in the June 2020 Board decision, the evidence shows that the Veteran was diagnosed with atypical fibromyalgia in 2007. Although the December 2020 opinion does not explicitly state that the Veteran is not diagnosed with fibromyalgia, it relied on a lack of hallmark trigger point pain in concluding the Veteran's fibromyalgia is not related to his service. This suggests that the December 2020 opinion is based on a lack of a diagnosis of fibromyalgia. However, the June 2020 Board decision specifically stated that the Veteran was diagnosed with atypical fibromyalgia. Furthermore, the diagnosis of atypical fibromyalgia suggests that the Veteran's fibromyalgia may not present with all of the hallmark signs of fibromyalgia. Based on the foregoing, and because the December 2020 examiner did not address the diagnosis of atypical fibromyalgia, the Board finds that a remand is required in order to obtain an addendum opinion as to the etiology of the current fibromyalgia disability. 4. Entitlement to service connection for a right knee disability is remanded. The Veteran seeks to establish service connection for a right knee disability. A December 2020 VA examiner opined that it was less likely than not that the Veteran's right knee disability was incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the examiner noted that there was a nexus between jumping from an aircraft and arthritis of the joints as repetitive trauma can be a factor in arthritis. The examiner then stated that there was no evidence of the Veteran being seen for knee pain during service or in the first year after service. However, the record contains evidence that is inconsistent with this rationale. The Veteran reported to the August 1997 VA examiner that he had multiple joint pain and specifically reported occasional pain in both knees. A November 1997 treatment record demonstrates that the Veteran reported stiffness and pain in the knees. A January 1998 treatment record shows that the Veteran reported increased swelling and stiffness in his knees. A February 1998 treatment record demonstrates that the Veteran reported stiffness and pain in the knees. An October 2003 VA treatment record shows that the Veteran reported that over the prior five years he had multiple joint pains and related constant pain in his knees. This evidence conflicts with the examiner's rationale that there was no evidence of the Veteran being seen for knee pain during service or in the first year after service. Finally, the June 2020 Board remand noted that an opinion is inadequate if it relies solely on the lack of evidence in service treatment records to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Notwithstanding that direction, the examiner provided no reason other than the lack of treatment records to support the conclusion. Based on the foregoing, the Board finds that a remand is required in order to obtain an addendum opinion as to the etiology of the current right ankle disability. 5. Entitlement to a TDIU from October 10, 2007, to October 21, 2009 is remanded. The Veteran's claim for TDIU from October 10, 2007, to October 21, 2009, is inextricably intertwined with the claim that is being remanded. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on an appellant's claim for another issue). As such, the Board will remand the TDIU claim as well. The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed, to the extent possible, arrange for the claims file to be reviewed by the VA examiner who prepared the April 2012 VA hypertension examination report (or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing an addendum opinion. If the examiner finds that another examination of the Veteran is required, one should be undertaken. After reviewing the record, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's hypertension disability of hypertension had its onset during, or is otherwise related to, service. In so doing, the examiner should discuss the medical significance, if any, of the blood pressure readings in August 1996, January 2007, April 2007, October 2007, February 2009, December 2010, and January 2011. If it is the examiner's opinion that it is unlikely that the Veteran's hypertension had its onset in, or is otherwise attributable to, service, the examiner should offer a further opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that such disability has been (a) caused or (b) aggravated (i.e., worsened beyond normal progression) by his service-connected back disability. A complete rationale for all opinions expressed must be provided. 4. Arrange for the claims file to be reviewed by the VA examiner who prepared the December 2020 VA hip conditions examination report (or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing an addendum opinion. If the examiner finds that another examination of the Veteran is required, one should be undertaken. After reviewing the record, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's left hip disability that had its onset during, or is otherwise related to, service. In so doing, the examiner should discuss the medical significance, if any, of the August 1997, November 1997, January 1998, and October 2003 treatment records that suggests the Veteran experienced symptoms related to his left hip within a year of his service. If it is the examiner's opinion that it is unlikely that the Veteran's left hip disability had its onset in, or is otherwise attributable to, service, the examiner should offer a further opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that such disability has been (a) caused or (b) aggravated (i.e., worsened beyond normal progression) by his service-connected back disability. A complete rationale for all opinions expressed must be provided. 5. Also, arrange for the claims file to be reviewed by the VA examiner who prepared the December 2020 VA fibromyalgia examination report (or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing an addendum opinion. If the examiner finds that another examination of the Veteran is required, one should be undertaken. After reviewing the record, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's fibromyalgia had its onset during, or is otherwise related to, service. In so doing, the examiner should note that, as per the June 2020 Board remand, the evidence shows that the Veteran was diagnosed with atypical fibromyalgia in 2007. The examiner should discuss the medical significance, if any, of the atypical fibromyalgia diagnosis in 2007, treatment for multiple joint pains at a VA rheumatology clinic in 1998, the December 1996 test for mononucleosis, and the August 1997 VA examination wherein the Veteran had a history of multiple joint pains. A complete rationale for all opinions expressed must be provided. 6. Also, arrange for the claims file to be reviewed by the VA examiner who prepared the December 2020 VA right knee examination report (or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing an addendum opinion. If the examiner finds that another examination of the Veteran is required, one should be undertaken. After reviewing the record, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's right knee disability had its onset during, or is otherwise related to, service. In so doing, the examiner should address the medical significance, if any, of the August 1997, November 1997, January 1998, February 1998, and October 2003 treatment records suggesting that the Veteran suffered from symptoms related to his right knee within a year of his military service. The examiner is reminded that an opinion is inadequate if it relies solely on the lack of evidence in service treatment records to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). If it is the examiner's opinion that it is unlikely that the Veteran's right knee disability had its onset in, or is otherwise attributable to, service, the examiner should offer a further opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that such disability has been (a) caused or (b) aggravated (i.e., worsened beyond normal progression) by his service-connected back disability. A complete medical rationale for all opinions expressed must be provided. 7. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. J. Ragheb Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.