Citation Nr: 21041166 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 18-20 705 DATE: July 8, 2021 ORDER Entitlement to service connection for ptosis of the right eyelid is granted. Entitlement to service connection for crocodile dystrophy is also granted, but service connection for all additional current eye disability, to include ptosis dermatochalasis, cataracts, and pseudophakia, is denied. FINDINGS OF FACT 1. The most probative evidence shows that the Veteran's ptosis of the Veteran's right eyelid resulted from an in-service injury. 2. Crocodile dystrophy has been related to active service; all other currently diagnosed eye disability, to include ptosis dermatochalasis, cataracts, and pseudophakia are not related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for ptosis of the Veteran's right eyelid are met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for crocodile dystrophy, but no other currently diagnosed eye disability, are met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1950 to October 1954 and from January 1955 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). This matter was previously before the Board in February 2019 at which time it was remanded for a VA examination pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006). This matter was again before the Board in May 2020 at which time it was remanded for a new examination pursuant to Stegall v. West, 11 Vet. App. 268 (1998). Additional Matter The Veteran submitted a statement in September 2019 that appears to raise the issue(s) of entitlement to an increased evaluation for service-connected tension headaches and/or entitlement to service connection for residuals of a traumatic brain injury (TBI). The Veteran stated that he went over the handlebars during the motorcycle accident in December 1959 and landed on his head. He stated that residuals from that injury were more severe than just the noted laceration. The record includes service treatment records noting blunt trauma to the right forehead and that the Veteran had severe headaches afterward. The Veteran's retirement examination in January 1971 noted the motorcycle accident in 1959 with laceration over his right eye, and that the Veteran reported occasional severe headaches. He was referred for a headache consultation. The February 1971 consultation report noted recurrent headaches that were post-traumatic and that the Veteran had a history of frequent, recurrent headaches of ten years duration, beginning in his right retro orbital area. However, the Board notes that the Veteran's September 2019 statement cannot be accepted as a claim for entitlement to an increased evaluation for service-connected tension headaches and/or entitlement to service connection for residuals of a TBI because it was not submitted on a VA Form approved by the Secretary. The Veteran is encouraged to file a formal claim using the appropriate form if he wishes to pursue these issues. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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, (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 (Fed. Cir. 2007). Lay evidence that is both competent and credible may establish the presence of a condition during service, post-service continuity of symptomatology, and a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for ptosis of the right eyelid The Veteran was diagnosed with ptosis of the right eyelid in February 1971 after he was referred for a medical consultation for headaches pursuant to his January 1971 retirement examination. The Veteran's service treatment records note a motor scooter accident in December 1959, indicating that his motor scooter stopped short, throwing him off. The Veteran was treated for a laceration above his right eye. The Veteran has a current diagnosis of ptosis and the records confirm an in-service incurrence. Thus, the first two elements required to establish service connection for the Veteran's right eye ptosis are met. At the February 1971 medical consultation, the clinician noted frequent recurrent headaches over ten years, beginning in the right retro-orbital area and spreading to the right side of the head. The clinician noted the Veteran reported a head injury due to the motorcycle accident during service. The examiner noted there was evidence of an old laceration just over the right eyebrow. Significantly, the examiner also diagnosed a "minimal, but definite, ptosis of the right eyelid." VA ophthalmology/optometry records dated May 2017 note trauma to the right eye during service and that the Veteran was treated with blepharoplasty of the right upper eyelid. Ptosis was also noted at the March 2021 VA examination for eye conditions and while it was noted that the condition affected both eyes, it was not indicated whether the right eye ptosis was worse than the left. The Board will therefore give the Veteran the benefit of the doubt and find that the evidence shows it is at least as likely as not that the Veteran's right eye ptosis is related to his in-service motor scooter accident and resulting laceration to his right eyebrow. Service connection is therefore warranted for right eye ptosis. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for ptosis dermatochalasis, crocodile dystrophy, and pseudophakia The Veteran contends that ptosis dermatochalasis, vision loss, crocodile dystrophy, and pseudophakia were also incurred during his military service, including as due to a motor scooter accident that resulted in injury. A December 2017 ophthalmology consultation indicated that the Veteran has blurry vision; and that he could not see anything when he was looking through a bifocal segment. The Veteran was diagnosed with crocodile dystrophy at a VA examination in December 2020. He was also diagnosed with pseudophakia in March 2021. As such, the record indicates the Veteran has a current disability. In its February 2019 decision, the Board also preliminarily found that the Veteran had a current disability of vision loss and that he experienced vision problems during service. The Board noted evidence that the Veteran had issues with his vision during service. The Veteran's reported vision was 20/20 for both eyes in January 1955. In March 1959, the Veteran was reported to have 20/20 vision during a service report of medical examination; but the remarks section of the examination revealed the Veteran was told he had a fractured eyeball eight years earlier. A clinical record cover sheet from December 1959 reports that the Veteran was in an accident that day. He had a lacerated wound on his right eyebrow; but no artery or any nerve involvement was included. He was approaching an intersection when something happened to his motor scooter, causing it to stop at once and, it threw him off. A 1961 ophthalmologist consultation revealed that the Veteran had astigmatism. In June 1965, he reported he wore glasses for one year in 1960 for astigmatism but he had no visual symptoms or used glasses since 1960. In January 1967, it was noted that the Veteran wore glasses in childhood; and again in 1960; but that he had not required them since. In the remarks of a January 1971 report of medical history, it was written that the Veteran had eye trouble, and that he had been wearing glasses since the 1950's. It was also reported in January 1971 that the Veteran had a head injury in 1959 from a motorcycle accident which resulted in a laceration over his right eye and being knocked unconscious. The Board noted that the Veteran had a current disability of vision loss and that there were vision problems in service, and therefore remanded the Veteran's claim for a VA examination pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also noted that a January 1967 record indicated that the Veteran wore glasses in childhood. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto 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). As the Veteran's enlistment examination was unavailable, the Board found that the Veteran was presumed sound upon entry into service. To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Board directed that this issue should also be addressed on remand. The Veteran was afforded a VA examination in September 2019. The examiner diagnosed posterior chamber IOL both eyes and noted that the Veteran had cataract surgery in 2014. He opined that this disorder less likely than not was incurred in or caused by service, including the motor scooter accident in 1959. He found that the Veteran's cataracts were age-related, stating "[T]his is a normal finding for someone who is 87. The examiner also opined there was no vision loss during service or at the time of his evaluation. In May 2020, the Board again remanded the Veteran's claim, finding the September 2019 examination did not comply with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The examiner did not address the Veteran's service treatment records relating to his eyesight. The Veteran's reported vision was 20/20 for both eyes in January 1955. In March 1959, the Veteran was reported to have 20/20 vision during a report of medical examination; but the remarks section of the examination revealed the Veteran was told he had a fractured eyeball eight years ago. A clinical record cover sheet from December 1959 reports that the Veteran was in a motor scooter accident that day. He had a lacerated wound on his right eyebrow but no artery or nerve involvement was included. A 1961 ophthalmologist consultation revealed that the Veteran had astigmatism. In June 1965, the Veteran reported he wore glasses for one year in 1960 for astigmatism but he had no visual symptoms or used glasses since 1960. In January1967, it was noted that the Veteran wore glasses in childhood and again in 1960 but that he had not required them since. In the remarks of a January 1971 report of medical history, the Veteran's examination for retirement, it was written that the Veteran had eye trouble, and that he had been wearing glasses since the 1950's. It was also reported that the Veteran had a head injury in 1959 from a motorcycle accident which resulted in a laceration over his right eye and being knocked unconscious. The Board found that this evidence must be addressed. Additionally, the opinion reported that the Veteran did not have a current disability of vision loss; but a December 2017 ophthalmology consultation indicated that the Veteran has blurry vision and that he could not see anything when he was looking through a bifocal segment. Accordingly, the Board found that it is not clear that the visual loss reported all throughout the Veteran's active duty service and, again in December 2017, had resolved. The Board noted that the Veteran may be entitled to service connection if the disability was present, at any time during the period on appeal. Additionally, the Board noted that the September 2019 examiner did not include a separate opinion for aggravation as directed by the Board's 2019 remand. The Board remanded with the following directives: (a.) Confirm the existence of a vision disability and please address the Veteran's medical records during the period on appeal that reported vision loss. (b.) Did a vision condition clearly and unmistakably (undebatable) preexist the Veteran's service? If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine on whether it was clearly and unmistakably not aggravated by service (c.) If the examiner finds that avision condition either did not clearly and unmistakably preexisted service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran's inservice medical reports of vision loss and the scooter injury. A contract VA examination eye conditions Disability Benefits Questionnaire (DBQ) was conducted in December 2020. He was diagnosed with bilateral ptosis dermatochalasis, crocodile dystrophy, and pseudophakia. The examiner found that the Veteran's decrease in visual acuity or other visual impairment is attributable to crocodile dystrophy. In March 2021, the examiner submitted opinions related to the December 2020 DBQ. The examiner found that the Veteran's crocodile dystrophy disorder was less likely than not related to his motor scooter eye injury because it existed prior to the injury and the vision loss was caused by normal refractive errors. The examiner also opined that the Veteran's crocodile dystrophy disorder most likely existed prior to service and was "as least as likely as not aggravated by service." Additional opinions were requested in April 2021 due to the need for clarification. The examiner listed three diagnoses on the examination done in December 2020, but did not explain in the direct service connection opinion why each of these conditions is not directly related to service. Clarification was requested as to: "How did the examiner conclude that crocodile dystrophy existed prior to service? If this was indeed aggravated, what evidence supports this and what is the reasoning?" Due to the need for clarification of the prior opinions, in May 2021, another eye condition DBQ was conducted and related opinions were resubmitted. The Veteran was diagnosed with ptosis dermatochalasis, crocodile dystrophy, and pseudophakia. The examiner opined that the Veteran's vision loss was less likely than not related to the scooter injury during service because it existed prior and the vision loss was normal refractive errors that caused it. The examiner stated that he could not conclude that the Veteran's crocodile dystrophy existed prior to service. He found no evidence to support that it was aggravated during service. He stated that crocodile shagreen is most commonly associated with natural progression due to advanced age, as supported by an article he cited in his report. He noted that there were no notations of crocodile dystrophy in the service treatment records. The examiner stated that the Veteran's ptosis and pseudophakia are, as per record review, most likely related to natural aging progression and are not due to or aggravated by service. The probative weight of medical opinion evidence is based on, among other things, the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Here, after reviewing all of the evidence, the Board finds the March and May 2021 examiners' opinions are each deficient in some respects but together are sufficiently probative to permit the resolution of the remaining claim on appeal. First, with respect to the disorder of crocodile dystrophy, the May 2021's conclusion that it was degenerative and likely age related and not shown in service or to be aggravated in service are not sufficient to rebut the presumption of soundness. Moreover, they are not sufficient to rebut the previous examiner's conclusion that the condition was likely aggravated during service. Consequently, based on the Board's determination that such evidence has essentially converted this claim into one for direct service connection, and there being some link between the Veteran's crocodile dystrophy and service, the Board will again give the Veteran the benefit of the doubt, and find that service connection for the Veteran's crocodile dystrophy is also warranted. On the other hand, the Board finds that service connection for the Veteran's additional currently diagnosed eye disability is not warranted. In this regard, the Veteran's ptosis dermatochalasis, cataracts, and pseudophakia were diagnosed years after service and have not been linked by any examiner to service or service-connected disability. The Board also notes that the Board is granting service connection for right eyelid ptosis but not for what is referred to in the examinations as bilateral "ptosis dermatochalasis," because ptosis and dermatochalasis are different conditions. Ptosis is caused by muscle or nerve weakness or paralysis that may be due to injury while dermatochalasis is caused by excessive skin that causes eyelid drooping that is often due to aging. There is no evidence that relates the Veteran's bilateral dermatochalasis or any other currently diagnosed eye disability to active service. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.