Citation Nr: 22013348 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 14-28 225A DATE: March 9, 2022 ORDER Service connection for residuals of a facial fracture is denied. REMANDED Entitlement to service connection for bilateral leg weakness, to include as due to service-connected grade I levorotatory scoliosis, is remanded. FINDING OF FACT The evidence of record persuasively weighs against finding that the Veteran has had any residuals from a facial fracture he incurred in service at any time during or approximate to the pendency of the claim; his decreased visual acuity is not shown to be related to the in-service injury. CONCLUSION OF LAW The criteria for entitlement to service connection for facial fractures have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1992 to August 1992 and from April 1996 to June 2010. A videoconference hearing was held before the undersigned Veterans Law Judge in September 2017. A transcript is of record. At the hearing, the record was held open for 60 days for the submission of additional evidence which was received and considered by the Board of Veterans Appeals (Board). Following the Veteran's hearing, the Board issued a decision in December 2018, which in pertinent part, remanded the claims of service connection for a right knee condition, a left knee condition, facial fractures, tendonitis of the right shoulder (limited range of motion of the right arm) and bilateral leg weakness, to include as due to service-connected grade I levorotatory scoliosis, for further development. After completing the additional development, a December 2021 rating decision granted service connection for degenerative arthritis, other than post-traumatic and tendonitis with pain in joint involving shoulder region, right shoulder and assigned a 20 percent rating, effective June 30, 2010, and a 30 percent rating, effective March 22, 2012. Additionally, service connection for both degenerative arthritis, other than post-traumatic, arthralgia and osteoarthritis, right knee, and left knee, each assigned a 10 percent rating, effective June 30, 2010. See December 2021 Rating Decision. The grant of service connection for these disabilities are considered a full grant of benefits sought on appeal. Accordingly, they will not be addressed further by the Board. A December 2021 Supplemental Statement of the Case (SSOC) continued the denial for service connection for facial fractures and bilateral leg weakness, to include as due to service-connected grant I levorotatory scoliosis. Therefore, these issues remain on appeal before the Board. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are three requirements to establish service connection: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). When there is an approximate balance of positive and negative 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. Entitlement to service connection for residuals of a facial fracture The Veteran contends that service connection should be established for residuals from a facial fracture he incurred in service. He asserts he suffered a seizure in service which caused him to break all the bones around his right eye. The Veteran also testified that he currently experienced drainage of water from the right eye that impaired his vision; he believed this was related to the fall and facial fracture in service. See September 2017 Board hearing transcript. Private treatment records from LSU Health show that in August 2009, imaging studies were completed for a crushing injury of face and scalp. The Veteran was noted to have a fracture of the right lamina papyracea, depressed with soft tissue emphysema in the right orbit. Orbital floor (blow-out) closed fracture was assessed. The Veteran's service treatment records (STRs) also show that in September 2009, he was seen by ophthalmology for an orbital fracture. The Veteran reported that it happened 4 weeks earlier and that he had had diplopia for a few days after, but now had normal vision for weeks. The treating provider assessed the Veteran as having post orbital floor fracture, right eye, with no diplopia, good vision, minimal enophthalmos, and normal ocular exam. In October 2009, the Veteran was seen by optometry for a routine eye exam. It was noted that he was seeking new glasses as he had been wearing over the counter glasses, usually for reading, for the past four years. It was further noted that the Veteran had a recent history of blow-out fracture, right eye, and that he had been seen in September 2009, four weeks post-trauma, with a normal exam and mild enophthalmos, right eye. After an examination, the Veteran was assessed as having refractive error, hypermetropia. The private treatment records from LSU Health and the STRs document that the Veteran fractured the bones around his right eye while in service. Thus, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to the facial fracture that he experienced in service. A review of the claims file shows the Veteran was afforded a VA general medical examination in May 2011. He reported having a seizure one to two years earlier where he fell and bumped the right eye area and fractured the bone around the eyes. He denied having any surgical treatment and said it did not give him any problems and did not complain of any pain or other symptoms. He did note that he had some blurred vision in the right eye and a separate eye examination was conducted. As for the facial fracture itself, the May 2011 VA examiner noted the examination was unremarkable and the Veteran's facial structures were symmetrical. The nose was normal, the head was normocephalic, and there was no evidence of any discomfort or pain. The examiner assessed the Veteran as being status post facial fractures with no residuals. The Veteran's postservice treatment records are similarly silent for any treatment related to the facial fracture itself and at the September 2017 Board hearing, the Veteran clarified that he felt his right eye vision impairment was a residual from the in-service facial fracture but did not report any other symptoms related to the facial fracture. Based on the foregoing, the Board concludes the Veteran does not have a current diagnosis related to the facial fracture that he sustained in service and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In reaching this conclusion, the Board acknowledges the January 2020 addendum medical opinion from a VA examiner, a general practitioner, who reviewed only the claims file and opined that the Veteran's facial fractures were at least as likely as not incurred in or caused by the seizure and fall that occurred during service. For rationale, the examiner stated the Veteran had no issues related to the claimed orbital floor closed fracture right prior to the military service and that the onset of the condition was during service, as documented in the STRs. The examiner also stated there was evidence of current, chronic, and continuous treatment and care. However, the examiner does not identify the current, chronic, and continuous treatment and care that the Veteran has received as a result of his in-service facial fracture. The only record identified in the addendum opinion is the August 2009 treatment record where it was noted that the Veteran suffered an orbital floor closed fracture, right. However, as explained above, it is not in dispute that the Veteran experienced a facial fracture in service. Instead, the question to be resolved is whether the Veteran has any residual disabilities from that incident, such as any musculoskeletal disabilities. The May 2011 VA examiner's findings are more probative in this regard because the examiner had an opportunity to examine the Veteran's facial structure in person and found that there were no structural residuals from the fractures. Notably, the Veteran himself did not testify that he suffered from any physical residuals from the in-service injury; instead, he testified that he was experiencing right eye drainage and vision issues, which he believed were residuals from the in-service facial fracture. See September 2017 Board hearing transcript. In terms of the right eye visual problems that the Veteran believes to be related to his in-service facial fracture, the record contains several VA medical opinions that address this question. At a June 2011 VA examination, the Veteran reported no history of treatment for eye diseases but did note the history of an injury to the right orbit. The examiner also noted that per the claims file, the Veteran had an orbital floor fracture in 2009. The examiner further noted that the Veteran's visual acuity had been checked approximately one month after this injury, at which time it was 20/15 in the right eye and 20/25 in the left. Following an examination that day, the June 2011 VA examiner assessed the Veteran as having decreased bilateral visual acuity. The examiner then stated he could not find an explanation for the decreased visual acuity as compared to the Veteran's visual acuity in 2009, following his injury. The examiner noted the Veteran was "not very cooperative during examination" and was found to be unstable and weaving back and forth at a point. He indicated he was on medication for migraines at the time. The examiner concluded he could not find anything to explain the decrease in the Veteran's visual acuity and had no speculation as to the reason for the decreased visual acuity. See June 2011 VA examination. In December 2018, the Board remanded this claim for an addendum opinion, giving consideration to the testimony that the Veteran provided at the September 2017 Board hearing. The examiner was asked specifically to address whether the Veteran's right eye vision and leakage were at least as likely as not related to the in-service seizure and fall. Pursuant to the Board's remand, a January 2020 VA addendum opinion was obtained from an optometrist. The examiner noted that the 2011 VA examination had resulted in a diagnosis of bilateral decreased vision with the examiner stating he could not find any explanation for the decreased visual acuity, compared to his visual acuity in 2009, following his injury, and that the Veteran had not been very cooperative during the examination. The January 2020 VA examiner then stated there was no evidence of reliable "vision and leakage [being] at least as likely as not related to [the Veteran's] in-service seizure and fall". However, the examiner also stated a repeat eye examination would be helpful to test his current vision condition. See January 2020 VA medical opinion. As a result of the January 2020 VA examiner's notation regarding the need for a repeat eye examination, the Veteran was examined again in November 2021. That examination resulted in a diagnosis of bilateral age-related nuclear cataracts. The VA examiner opined this diagnosis was less likely than not incurred in or caused by the Veteran's in-service injury. In support of that opinion, the examiner acknowledged the Veteran's fall in service and that he fractured the bones around his right eye. She also noted that the Veteran now reported decreased vision in the right eye, but stated that upon examination, there was no decrease in vision noted with glasses. The examiner also stated that while there was evidence of mild age-related nuclear cataracts, this was separate and unrelated to the seizure and subsequent fall while in service. The examiner noted that during the 2011 VA examination, the Veteran had also complained of blurred vision in the right eye following his fall from the seizure; however, that examination was otherwise unremarkable. His facial structures were symmetrical, and his nose was normal. There was no evidence of any discomfort or pain, though he did complain of headaches. The examiner concluded, due to the normal examination following the seizure and subsequent fall, the Veteran's decrease in visual acuity was less likely than not caused by the inservice seizure and subsequent fall. See November 2021 VA examination. The Board finds the November 2021 VA examiner's medical opinion is the most probative evidence of record because the opinion was rendered by an optometrist, was based on an accurate understanding of the Veteran's medical history, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Specifically, the examiner addressed the decreased visual acuity findings of the June 2011 VA examiner and attributed the loss of vision to age-related nuclear cataracts as opposed to his seizure and subsequent fall in service. The finding is supported by the Veteran's STRs, which show he had normal ocular examinations following the 2009 injury and that the only subsequent treatment he received in service for vision issues was for a refractive error, which is not a disability for which service connection may be awarded. See 38 C.F.R. §§ 3.303(c), 4.75(a). Importantly, the November 2021 VA examiner's opinion is the only competent evidence in the record concerning the Veteran's right eye visual problems. Although the Veteran believes his current right eye visual problems are related to the facial fracture he sustained in service, he is not competent to provide a nexus opinion regarding this issue. The questions involved in this case are medical in nature and therefore outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the November 2021 VA examiner's medical opinion, as discussed above. In conclusion, the Board finds that the evidence weighs persuasively against the Veteran's claim for service connection for residuals of a facial fractures and the benefit of the doubt doctrine is not for application. Therefore, the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for bilateral leg weakness, to include as due to service-connected grade I levorotatory scoliosis In a January 2011 Statement in Support of Claim, the Veteran reported having weakness in both legs such that he could hardly stand on them. This was interpreted as an informal claim for service connection for bilateral leg weakness and the Veteran was provided a VA neurological examination in August 2011. That examination resulted in a finding that the examiner could see no records in the claims file of lower extremity weakness or diffuse pain problems; no diagnosis was made for the claimed symptoms of bilateral leg weakness. The Veteran's claim was then denied for lack of a clinically diagnosed condition that caused muscle weakness. See December 2011 rating decision. During the September 2017 Board hearing, the Veteran clarified he was seeking service connection for bilateral leg weakness as a "part of [his] back condition." The Veteran is service connected for grade I levorotatory scoliosis and he testified that his treating VA physicians had told him his bilateral leg weakness was caused by this back condition. Based on this testimony, the claim was remanded for the development of updated treatment records and a VA examination. See December 2018 Board decision. Notably, the December 2018 Board decision also granted, in pertinent part, an increased 20 percent rating for the Veteran's service-connected grade I levorotatory scoliosis. In implementing this decision, the March 2019 rating decision awarded separate ratings for femoral radiculopathy and sciatic radiculopathy for both lower extremities, each rated 10 percent, effective November 6, 2017, the date of a VA examination report where it had been noted the Veteran suffered from radiculopathy because of his service-connected grade I levorotatory scoliosis. The March 2019 rating decision explained these separate ratings were considered within the scope of the appeal decided by the Board in December 2018, as it addressed the evaluation of the service-connected grade I levorotatory scoliosis. After the March 2019 rating decision and pursuant to the Board's December 2018 remand, the Veteran was provided a VA peripheral nerves examination in November 2021. During this examination, the Veteran reported the date of onset of his symptoms as 2003. He stated that during his deployment he did a lot of excessive lifting, but then in 2005, he experienced a bullet going past him that messed with his mind. He also experienced an IED that hit close to his vehicle in 2007 and after those two incidents, he started "feeling bad all over." The Veteran described this feeling as more mental than physical. The Veteran also reported that since that time, he had experienced all types of pain and symptoms and that around 2010 or 2011, he was referred to the neurology clinic where he was told he had nerve damage. Following a physical examination of the Veteran, the examiner diagnosed radiculopathy of the bilateral lower extremities. The examiner also opined this condition was less likely than not incurred in or caused by the Veteran's service. For rationale, the examiner stated merely that there was no evidence the Veteran's peripheral nerve condition was due to or aggravated by the service-connected grade I levorotatory scoliosis. No other rationale was provided. Despite the opinion by the November 2021 VA examiner, the Veteran is already service connected for radiculopathy of the bilateral lower extremities. Specifically, as noted, he has been awarded service connection for femoral and sciatic radiculopathy of both the right and left lower extremities. Therefore, the remaining question in this case is whether the Veteran has any other disability manifested by bilateral leg weakness that has not already been service-connected (i.e., other than radiculopathy, bilateral lower extremities) and if so, whether it is related to service or alternatively, caused or aggravated by his service-connected grade I levorotatory scoliosis. A remand is required to obtain a medical addendum opinion that addresses and clarifies these outstanding questions. The matter is REMANDED for the following action: Obtain an addendum medical opinion from an appropriate clinician regarding whether the Veteran has any other diagnosis associated with his claim for bilateral leg weakness, aside from the already service-connected disabilities of femoral and sciatic radiculopathy of the bilateral lower extremities. If so, the examiner should identify that diagnosis and provide an opinion as to: (a) Whether that diagnosis at least as likely as not related to the Veteran's military service, including consideration of his lay contentions of injury and pain experienced during his deployment (b) Whether that diagnosis is at least as likely as not caused or aggravated by the Veteran's service-connected grade I levorotary scoliosis. The examiner should provide clear medical rationale for all opinions rendered. If it is determined a physical examination of the Veteran is necessary to provide the requested opinions, such should be arranged. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Churchwell, 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.