Citation Nr: 21042186 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 11-01 627 DATE: July 12, 2021 ORDER Entitlement to service connection for a right eye condition is denied. REMANDED Entitlement to service connection for myalgia of multiple joints is remanded. FINDING OF FACT The Veteran's a right eye condition is not secondary to service-connected chronic obstructive pulmonary disease and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a right eye condition due to service or service-connected disease are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1987 to October 1994, and from March 2003 to June 2004. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In June 2016, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The Board notes that this matter was most recently remanded to the Agency of Original Jurisdiction (AOJ) in February 2019. This matter has been returned to the Board at this time for further appellate review. Entitlement to service connection for a right eye condition The Veteran contends he should be service-connected for a right eye condition. To establish service connection, the evidence must generally 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 also 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). Service connection on a secondary basis is warranted when it is shown that a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. This includes disabilities aggravated or made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Pursuant to 38 U.S.C. § 1110 and 38 C.F.R. § 3.310(a), when aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See Allen, 7 Vet. App. at 448. The Board notes that the United States Court of Appeals for Veterans Claims (CAVC) has noted that conditions may wax and wane in severity, and that a medically ascertainable incremental increase in disability, may meet the definition of "disability" "the impairment of earning capacity due to disease, injury, or defect." Ward v. Wilkie, 31 Vet. App. 233, 239-40 (2019). Lay persons are competent to provide opinions on some medical issues falling within the realm of common knowledge. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In February 2004, the Veteran received a flash burn to his eyes while assisting another service member weld a piece of equipment. The treating physician noted that the flourets dye test was positive for an abrasion to the right eye. The physician flushed both eyes with a sterile wash, prescribed an eye patch for 12 hours, eye drops, and ordered the Veteran to return to the clinic for follow-up in 24 hours. The Veteran's service treatment records do not show any additional treatment or complaints for any eye conditions. Further, a December 2004 treatment note reports that the Veteran denied any visual complaints. However, in a June 2008 treatment note, the Veteran stated he had occasional blurring of vision. In November 2008, the Veteran's treatment records indicate an eye examination was conducted for hyperopia, astigmatism, and presbyopia. During the examination, the Veteran described experiencing symptoms that were similar to ocular migraines, however ocular abnormalities were ruled out as the cause of these symptoms. The optometrist determined that the Veteran's ocular health was normal. In August 2009, the Veteran was provided a VA eye examination. During the examination, the Veteran complained of "floaters for about 5 yrs, photophobia, has also been feeling dizzy a lot lately, also when he moves his eyes, he feels a 'tickle' in his eye." The examiner conducted a physical examination of the Veteran's eyes and found that "This patient does not suffer from an ocular impairment. It is less likely than not that the veteran's floaters were cause by a flash burn. In addition, the veteran's floaters have been stable for 5 years and are not visually impairing." A September 2011 physical examination noted that the Veteran's "pupils equal and reactive to light and accommodation, extra-ocular muscles intact, conjunctivae pink. Optic discs flat, no hemorrhages." However, an August 2013 VA examiner commented that the Veteran's symptoms of dizziness and ocular vision changes was suggestive of polycythemia related to smoking or nitric oxide pathway involvement. The Veteran is service-connected for chronic obstructive pulmonary disease (COPD). A September 2014 private medical treatment note indicates "male complains of blur at near in both eyes for 2 years. The timing is described as constant. Quality is worsening. Patient declines presence of: diplopia, flashes, floaters, pain." The examiner diagnosed the Veteran with regular astigmatism and presbyopia. However, during the same examination, the Veteran described experiencing eye floaters for the last two years. In June 2016, the Veteran was provided a Board hearing. During the hearing, the Veteran stated that, due to a flash burn, he has experienced floaters in his right eye for a long time. Further, the Veteran described 30 second black outs that occur in both eyes, and occasional eye watering that occurred from 2004 to 2010. Also, the Veteran's wife noted that the Veteran experiences some light sensitivity. And she submitted materials detailing the possible effects of welding and flash burns on welder's eyes. Following the February 2019 Board remand, the Veteran was provided an additional VA eye examination in October 2019. During the examination, the Veteran described experiencing eye floaters since 2005. Also, the Veteran explained that the onset of the floaters was sudden and that he continues to experience them occasionally, but the symptoms have slightly improved over time. The examiner conducted a physical examination of the Veteran's eyes and found that there is no evidence of the claimed right eye condition manifested by floaters and ocular vision changes. The examiner further explained that the floaters noted are due to normal age-related change and can occur sooner if forceful trauma occurs but not flash burns, and that the vitreous floaters are not likely the result of or aggravated by military service. Further, the examiner opined ocular vision changes, described by the Veteran, are subjective, and that the Veteran "is seeing very well" during the present examination. Also, the Veteran's described "blackouts" are more likely neurological and not ocular-related. The examiner reasoned that flash burns to the face would cause injury to corneal and conjunctival tissues on the front surface of the eye, and floaters are posterior to this, are not caused by flash burns, and are a common occurrence related to age. Also, the examiner determined that the Veteran's right eye condition was less likely than not proximately due to, or the result of, or aggravated by the Veteran's service-connected COPD. The examiner reasoned that vitreous changes occur naturally with normal aging, and the Veteran's current symptoms are mild and not advanced. On review of the record, the Board finds that the most probative evidence is the October 2019 VA opinion. The examiner considered the description of the Veteran's symptoms and their onset in the context of the medical record and the event claimed to have caused them. Further, the examiner described the type of injury a flash burn would cause and how it is not connected to the Veteran's current symptoms. Also, following the injury and its treatment, the Veteran's service treatment records are silent for any complaints of an eye condition. And the examiner found no objective evidence of a right eye condition manifested by floaters and ocular vision changes. The opinion of the VA examiner was rendered by a medical professional with the expertise to opine on the matter at issue in this case. The examiner addressed the Veteran's contentions and based the opinions on a review of the claims folder to include consideration of the Veteran's medical history, the nature of the current disabilities, and medical literature. The Board finds no factual inaccuracies. Rather, the examiner thoroughly considered the Veteran's lay statements, treatment, and post-service diagnosis. Furthermore, the Board has reviewed the lay statements which are probative as to when the Veteran first experienced eye floaters, but such symptoms in and of themselves alone do no establish the onset of a right eye condition. Also, the Veteran and his spouse are not shown to be competent themselves to correlate such matters as establishing that his present eye floaters are related to his in-service welding injury or has been caused or aggravated by his service-connected COPD. Additionally, the Veteran has provided inconsistent statements on when his eye floaters began, which lowers the overall probative value of his recollections. See State v. Spadafore, 220 S.E.2d 655, 661 (W. Va. 1975). The medical articles submitted in support of the claim has some probative value, but the probative value is limited as it does not address the specific facts of this case and is greatly outweighed by the medical opinion which considered the specific facts of this case. For the reasons detailed above, the Board must find that the preponderance of the evidence is against the Veteran's claim for direct service connection for a right eye condition. In making this decision, the Board notes that the Veteran is competent to report experiencing eye floaters and subjective ocular changes but is not competent to determine the etiology of his symptoms. Additionally, the Board finds that the VA examiner's opinion far more probative and persuasive as to the etiology of the Veteran's disabilities. As for the Veteran's claim for secondary service-connection, the Board focuses on the October 2019 VA examination report. There, the VA examiner opined that the Veteran's right eye condition was less likely than not proximately due to, or the result of, or aggravated by the Veteran's service-connected COPD. The examiner reasoned that vitreous changes occur naturally with normal aging, and the Veteran's current symptoms are mild and not advanced. An August 2013 VA examiner commented that the Veteran's symptoms of dizziness and ocular vision changes were suggestive of polycythemia related to smoking or nitric oxide pathway involvement, but did not provide a more definitive statement and has limited probative value which is outweighed by the 2019 VA examiner opinion which is based upon a review of the entire record. In closing, the preponderance of the competent evidence, concerning etiology and aggravation, weighs against the Veteran's direct and secondary service-connection claims for the Veteran's right eye condition. As the evidence is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107; Gilbert, 1 Vet. App at 53. REASONS FOR REMAND Entitlement to service connection for myalgia of multiple joints is remanded. Following the February 2019 Board remand, the Veteran was afforded another VA examination in October 2019. At that time, the examiner opined that the Veteran's current polyarthralgia, pain in the joints, is most likely a continuation of the polyarthralgia and myalgia that occurred in 2003, and the claimed condition is at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. However, during the same examination, the examiner opined that although the Veteran reports subjective pain in multiple joints and both forearms, these symptoms are secondary to his chronic musculoskeletal conditions and a separate muscle injury diagnosis is not warranted. It seems that the examiner used the terms polyarthralgia and myalgia interchangeably. As such, the Board finds that clarifying opinion is necessary to determine the source of the Veteran's pain and its etiology. The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records and associate them with the claims file. 2. Afford the Veteran VA examination for determining the nature and etiology of his polymyalgia or polyarthralgia symptoms independent of service-connected disabilities. The examiner should interview the Veteran to identify which joints and muscles he experiences pain. For each joint and muscle reported, the examiner should identify whether there is a known clinical diagnosis for such disorder and, regardless of diagnosis or lack thereof, determine whether there is objective evidence of painful movement or functional impairment. For any involved joint or muscle which is not already service-connected, provide opinion as to whether it is at least as likely as not that such disorder first manifested in service and/or is causally related to service, including the environmental exposures during his Persian Gulf War service, OR an undiagnosed illness OR represents a medically unexplained chronic multi-system illness. 3. Upon completion of the above requested development and any additional development deemed appropriate, the AOJ should readjudicate the remanded issue. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.