Citation Nr: 21042451 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-31 968 DATE: July 13, 2021 ORDER Service connection for an eye disability is denied. Service connection for an acquired psychological disorder is denied. Service connection for a cervical spine disability is denied. Service connection for a left hip disability is denied. Service connection for a right hip disability is denied. Service connection for left foot bone spurs is denied. Service connection for right foot bone spurs is denied. REMANDED Entitlement to service connection for a headache disability, to include migraine headaches, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that an eye disability began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that a psychiatric disorder began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that a cervical spine disability began during active service, or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that a left hip disability began during active service, or is otherwise related to an in-service injury or disease. 5. The preponderance of the evidence is against finding that a right hip disability began during active service, or is otherwise related to an in-service injury or disease. 6. The preponderance of the evidence is against finding that a left foot bone spur disability began during active service, or is otherwise related to an in-service injury or disease. 7. The preponderance of the evidence is against finding that a right foot bone spur disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for an eye disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a left hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for left foot bone spur are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for right foot bone spur are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1986 to February 1990. She died in December 2020. The appellant is the Veteran's surviving spouse who has been substituted as the appellant in this matter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Huntington, West Virginia. This matter was previously before the Board in October 2020 at which time it was remanded for additional development. It is now returned to the Board. Service Connection Service connection means that the facts, shown by evidence, establish 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 during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to prevail on the issue of service connection for a disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service connection for certain chronic diseases, such as arthritis and certain psychoses, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003. When no pre-existing condition is noted upon examination for entry into service, a Veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. Mere history provided by the Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a pre-existing condition. 38 C.F.R. § 3.304 (b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Therefore, to rebut the presumption of soundness under 38 U.S.C. § 1111, there must be clear and unmistakable evidence that (1) a Veteran's disability existed prior to service, and (2) that the pre-existing disability was not aggravated during service. Id.; see also VAOPGCPREC 3-2003. The second prong may be rebutted with clear and unmistakable evidence establishing that either (1) the disability underwent no increase in severity during service, or (2) any increase in severity was due to the natural progression of the condition. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Wagner, 370 F.3d at 1096). By "clear and unmistakable evidence" is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245-6 (1994) (the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). 1. Entitlement to service connection for an eye disability. The Veteran asserted that she had a bilateral eye disability that was manifested as a result of her period of active service. Specifically, she contended that her condition was related to eye strain in service from looking at computer screens. Service personnel records confirm that her military occupational specialty was as an electronic intelligence operations specialist. Service treatment records do not reveal any treatment or diagnosis related to an eye disability during the Veteran's period of active service. Following service, intermittent VA outpatient treatment records show treatment for bilateral conjunctivitis. A VA medical opinion dated in March 2021 shows that following a review of the Veteran's claims file, the examiner concluded that the Veteran had allergic conjunctivitis. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran had allergic conjunctivitis diagnosed at VA, and that there was no evidence of any ocular involvement in service. The examiner suggested that the additional problems with vision could be secondary to the Veteran who appeared not to be wearing prescription glasses but over the counter readers. The examiner indicated the Veteran had been using readers only and not prescription glasses though she had been prescribed glasses previously, and this possibly could have caused her some eye strain. As far as the computer strain, there was no mention of this problem in service. There was no proof in the literature that it causes long term damage to the eyes. Most eye care professionals believe that when viewing the computer screen for long hours one tends not to blink which dries out the eyes and causes blurry vision. However, this would not cause permanent damage. Most problems with computer strain were said to involve staring at a computer screen not blinking and the position of the computer screen or chair. The examiner reiterated that there were no complaints or ocular examinations to confirm that there was a problem during active service. The opinion of the VA examiner is probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Accordingly, the opinion is found to carry significant weight. The appellant has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. While the Veteran may have believed that she had a bilateral eye disability as a result of active service, she was not competent to provide a medical opinion as the issue is medically complex, requiring specialized medical education and the ability to interpret complicated diagnostic medical testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377. Consequently, the Board gives more probative weight to the competent medical evidence. Given the medical evidence against the claim, for the Board to conclude that the Veteran had a bilateral eye disability that was incurred during active service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993). Therefore, the preponderance of the evidence is against the Veteran's claim of service connection for an eye disability. As the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. 2. Entitlement to service connection for an acquired psychological disorder. The Veteran asserted that she had a psychiatric disorder that was manifested as a result of her period of active service. Service treatment records are negative of any diagnosis or treatment for a psychiatric disorder during the Veteran's period of active service. Following service, VA outpatient treatment records show that the Veteran was treated intermittently for symptoms associated with anxiety. While the Veteran was assessed to have generalized anxiety disorder, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. There is simply no medical evidence of record linking the post-service generalized anxiety disorder to the Veteran's period of active service. While the Veteran may have believed that her generalized anxiety disorder was related to active service, and while she was competent to report having experienced observable symptoms, she was not competent to provide a nexus opinion regarding this issue. The issue is medically complex, therefore, outside the competence of the Veteran it has not been shown that she had the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377; see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Given the absence of medical evidence in support of the Veteran's claim, for the Board to conclude that her psychiatric disorder was manifested as a result of active service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert, 5 Vet. App. at 33. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. 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, 55-56 (1990). In light of the foregoing, service connection for a psychiatric disorder is not warranted. 3. Entitlement to service connection for a cervical spine disability. The Veteran asserted that she had a cervical spine disability that was manifested as a result of her period of active service. Service treatment records are negative of any diagnosis or treatment for a cervical spine disability during the Veteran's period of active service. Following service, VA outpatient treatment records show that the Veteran was treated intermittently for various neck symptoms. While the Veteran had reported cervical spine symptoms, the preponderance of the evidence is against finding that they began during active service, or were otherwise related to an in-service injury, event, or disease. There is simply no medical evidence of record linking any post-service cervical spine symptoms to the Veteran's period of active service. While the Veteran may have believed that her cervical spine disability was related to active service, and while she was competent to report having experienced observable symptoms, she was not competent to provide a nexus opinion regarding this issue. The issue is medically complex, therefore, outside the competence of the Veteran it has not been shown that she had the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377; see also Kahana, 24 Vet. App. at 428. Given the absence of medical evidence in support of the Veteran's claim, for the Board to conclude that her asserted cervical spine disability was manifested as a result of active service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert, 5 Vet. App. at 33. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-56. In light of the foregoing, service connection for a cervical spine disability is not warranted. 4. Entitlement to service connection for a left hip disability. 5. Entitlement to service connection for a right hip disability. The Veteran had asserted that she had left and right hip disabilities that were manifested as a result of her period of active service. Service treatment records are negative of any diagnosis or treatment for left and right hip disabilities during the Veteran's period of active service. Following service, VA outpatient treatment records show that the Veteran was treated intermittently for bilateral hip pain. While the Veteran had reported bilateral hip symptoms, the preponderance of the evidence is against finding that they began during active service, or were otherwise related to an in-service injury, event, or disease. There is simply no medical evidence of record linking any post-service left and right hip disabilities to the Veteran's period of active service. While the Veteran may have believed that her left and right hip disabilities were related to active service, and while she was competent to report having experienced observable symptoms, she was not competent to provide a nexus opinion regarding this issue. The issue is medically complex, therefore, outside the competence of the Veteran it has not been shown that she had the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377; see also Kahana, 24 Vet. App. at 428. Given the absence of medical evidence in support of the Veteran's claim, for the Board to conclude that her asserted left and right hip disabilities were manifested as a result of active service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert, 5 Vet. App. at 33. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-56. In light of the foregoing, service connection for left and right hip disabilities is not warranted. 6. Entitlement to service connection for left foot bone spurs. 7. Entitlement to service connection for right foot bone spurs. The Veteran had asserted that she had left and right foot bone spurs that were manifested as a result of her period of active service. A review of the Veteran's service treatment records reveals that at service entrance, mild pes planus was indicated on her enlistment report of medical examination dated in May 1985. There was no indication of any bone spurs of the left or right foot. Therefore, the Veteran is presumed to have entered active service with no left or right bone spurs. The remaining service treatment records are negative of any diagnosis or treatment for left or right hip bone spurs during the Veteran's period of active service. Following service, VA outpatient treatment records show that the Veteran was treated intermittently for reported bone spurs of the feet. While the Veteran had reported bone spurs of the feet, the preponderance of the evidence is against finding that they began during active service, or were otherwise related to an in-service injury, event, or disease. There is simply no medical evidence of record linking any post-service bone spurs to the Veteran's period of active service. While the Veteran may have believed that her left and right foot bone spurs were related to active service, and while she was competent to report having experienced observable symptoms, she was not competent to provide a nexus opinion regarding this issue. The issue is medically complex, therefore, outside the competence of the Veteran it has not been shown that she had the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377; see also Kahana, 24 Vet. App. at 428. Given the absence of medical evidence in support of the Veteran's claim, for the Board to conclude that her asserted left and right foot bone spurs were manifested as a result of active service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert, 5 Vet. App. at 33. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-56. In light of the foregoing, service connection for left and right foot bone spurs is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a headache disability, to include migraine headaches. The Veteran asserted that she had a chronic headache disability that was first manifested during her period of active service. A review of the Veteran's service treatment records reveals that her service entrance examination report dated in May 1985 shows that there was no indication of an existing headache disability. A record dated in March 1989 shows the Veteran was seen for a headache that began that morning. The assessment was migraine headache. A record dated in April 1989 shows that the Veteran reported feeling a lot better. The assessment was migraine resolved. An additional record dated in April 1989 lists migraine headaches under a heading captioned Chronic Illnesses. In December 1987, she reported headache associated with sinusitis. Following service, VA outpatient treatment records dated in November 2018 and March 2019 show that the Veteran reported experiencing headaches. The Veteran was never afforded a VA examination to determine whether her reported post-service headaches were etiologically related to the chronic migraine headache disability documented during active service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d)(2); and 38 C.F.R. § 3.159(c)(4). Therefore, a VA medical opinion must be obtained. The matter is REMANDED for the following action: 1. Obtain a VA medical opinion from an appropriate clinician regarding whether the Veteran's reported headache disability, to include migraine headaches, is at least as likely as not related to the chronic migraine headaches documents in the service treatment records. The examiner must consider the March 1989, April 1989, and December 1987 service treatment records showing treatment for reported headaches, to include chronic migraine headaches; and the post-service VA outpatient treatment records dated in November 2018 and March 2019 showing that she reported experiencing headaches. The examiner is advised that the Veteran was competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Orfanoudis, 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.