Citation Nr: 22015995 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-04 437 DATE: March 21, 2022 ORDER Service connection for a left eye injury is denied. REMANDED Entitlement to service connection for a left knee condition is remanded. FINDING OF FACT The Veteran does not have an eye injury or residuals of an eye injury for which service connection may be granted. CONCLUSION OF LAW The criteria for service connection for a left eye injury are not met. 38 U.S.C. §§ 1131, 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 October 1980 to October 1983. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a video conference hearing from Montgomery, Alabama, before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. These matters have previously come before the Board. In September 2021, the Board remanded the issues for medical examinations to be conducted by VA and opinions rendered regarding their nature and etiology. Subsequently, the Veteran received VA examinations for his eye and his knee. Thus, the Board finds that its remand instructions were substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a left eye injury is denied. The Veteran seeks service connection for residuals of an in-service left eye injury. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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, 1377 (Fed. Cir. 2007). The Veteran initially claimed service connection for a left eye injury, but later indicated it may have been his right eye. See July 2016 Notice of Disagreement. He described at his hearing before the Board that while on a policing detail during basic training, he bent over to pick up some paper and was poked in his eye by the tip of a plant or stick. He testified that he was treated at the troop medical clinic the following day, at which time a foreign body was removed. At the hearing, he did not indicate being unsure of which eye had been injured. See May 2021 Hearing Transcript, pp. 9-10. The Veteran's clinical entrance examination was normal for the eyes (general) and he had 20/20 vision in both eyes. He did not report any eye trouble on the medical history form at entrance. The in-service records do not show treatment for an eye injury during basic training shown in the Veteran's service records. A brief August 1982 optometry record, written two years into the Veteran's service, indicated his visual acuity was within normal limits, with no mention of any injury or residuals of a prior injury. See Service Treatment Record (STR) Medical, p.3 (Aug. 26, 1982). Before his separation from service, the Veteran's vision was measured as 20/20 in both eyes, and no eye injuries or conditions were annotated. See STR Medical, p.12 (Aug. 23, 1983). Nonetheless, the Board finds no reason to doubt the Veteran's credibility, regarding that he injured his left eye during service as described. The Veteran underwent eye examinations in November 2012 and May 2015 as part of his regular medical treatment. These examinations discussed corrective lenses, photophobia, and suspected diabetic retinopathy. The May 2015 optometrist made note that the Veteran had reported past eye injuries, including as a child. However, no findings of scarring or an ongoing injury were annotated in medical records during either of these eye examinations. See July 2015 VA Medical Treatment Record, pp. 19-22, 229-230 (May 14, 2015, and November 13, 2012, records). In January 2016, a psychiatric nurse wrote that the Veteran again reported having injured his eye during service. However, no eye treatment or diagnosis was made during that psychiatric visit. See April 2016 VA Medical Treatment Record, p.38 (January 25, 2016, record). Subsequent records of four regular eye examinations made no mention of any eye injury, residuals, or scarring. See May 2021 VA Medical Treatment Record, pp. 42, 146, 303-05, and 796 (December 17, 2018, December 17, 2019, July 28, 2020, and January 19, 2021, records). The Veteran underwent a VA examination in October 2021. The examiner indicated having reviewed the Veteran's claim file and details were gather from the Veteran regarding the onset and course since onset. He documented the Veteran's reports of being poked by the tip of a plant during service, for which he received treatment. The examiner diagnosed trace nuclear cataracts, but he made no diagnosis of any injury or residuals of an injury. The examiner wrote an opinion that the Veteran's cataracts were less likely than not (less than 50 percent probability) incurred in or caused by his in-service injury. The examiner explained that normally, a puncture or penetrating wound of the eye would leave a permanent scar, but the examiner did not document a scar in either eye upon examination. There were no signs of a puncture wound, and no other "residuals from that event" (the examiner's language is quoted here, as it demonstrates actual consideration of the Veteran's lay statements about the in-service injury). Additionally, there were no records during subsequent eye treatment of any foreign body abrasions or other residuals of injury. The Veteran's only current ocular diagnosis was an age-related cataract which minimally reduced his vision in each eye. See October 20, 2021 Compensation and Pension (C&P) Examination. The Board finds this examination is highly probative based on the examiner's thorough description of the Veteran's eye conditions and history, consideration of the full evidence of record, including the Veteran's lay description of his in-service injury, and the sound reasoning for his conclusions. To the extent that the Veteran's statement are to offer a nexus to service, the record does not reflect that he has the requisite training, education, and/or knowledge to provide an etiological opinion. Indeed, this is a complex matter regarding the eye organ and the body's vision/sight system. As such, the Veteran's statement regarding etiology are not competent and lack weight. Weighing the probative evidence, the Board concludes that the evidence is persuasive that the Veteran does not have an eye injury or residuals of an eye injury for which service connection may be granted. Although he was injured during service, the Veteran does not have a diagnosis of an eye injury, nor does he have any scarring, foreign body abrasions, or any other residual effects of that injury. Although he is diagnosed with a nuclear cataract condition, the competent evidence is persuasive that those cataracts are not due to an in-service injury, as they are age-related. Thus, all the elements of service connection have not been met. As most of the evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable and the claim is denied. Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021). REASONS FOR REMAND Entitlement to service connection for a left knee condition (claimed as injury to left leg) is remanded. Although further delay is regrettable, an addendum medical opinion is necessary before the Board can adjudicate on the claim for the Veteran's left knee. Following the Veteran's recent VA examination, the examiner wrote an opinion that it was less likely than not that the Veteran's current knee strain condition was incurred in or caused by the claimed in-service injury, event, or illness. However, the examiner's rationale was based entirely upon a lack of medical records showing continuous treatment for the Veteran's knee since his documented in-service injury, without any further explanation. Moreover, the examiner's reasoning concluded that "medical records do not establish a clear and irrefutable nexus to service." The examiner has imposed a higher standard of proof upon the Veteran's claim than that mandated by law. Claims for veterans' benefits are determined following the benefit-of-the-doubt doctrine, as outlined in 38 U.S.C. § 5107, which explains that in any instance when the evidence is in approximate balance of positive and negative 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; see Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). With the wrong standard, the examiner's opinion is therefore of no legal value. Relevant caselaw states that once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one. Barr v. Nicholson, 2 Vet. App. 303, 311-12 (2007). Based on the foregoing, a new opinion must be provided before the Board may render a decision. This matter is REMANDED for the following action: Arrange for an addendum opinion to address the Veteran's left knee condition. The examiner should indicate review of the complete claim file, and provide an opinion regarding the nature and etiology of the Veteran's left knee condition. A new examination is not necessary unless deemed so by the examiner. The examiner should answer: (a.) Is it at least as likely as not (approximately 50 percent probability) that the Veteran's current left knee strain was incurred in, caused by, or otherwise related to his in-service knee injury? The examiner's rationale should reflect consideration of the Veteran's lay statements that he has experienced continual symptoms of left knee pain since his documented injury in service, as he testified before the Board in May 2021. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements. Note: A full credibility determination will be made at a later date, if needed, once additional evidence has been added to the claims file). A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are require), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hermsdorfer, 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.