Citation Nr: 22018164 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-16 596 DATE: March 28, 2022 ORDER Entitlement to service connection for a right eye disability is denied. REMANDED Entitlement to service connection for a left leg disability is remanded. Entitlement to service connection for a right leg disability is remanded. FINDING OF FACT The Veteran does not have a right eye disability that is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a right eye disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Navy from March 2000 to March 2006 with additional service in the Navy Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the issue of service connection for bilateral hearing loss was initially on appeal. However, in a February 2019 decision, the Board denied service connection for left ear hearing loss. In the same decision, the Board remanded issues of service connection for right ear hearing loss, bilateral leg disability, and right eye disability. In September 2021, the matters were remanded again for further development. While on remand, the Veteran's claim of service connection for right ear hearing loss was granted in a January 2022 rating decision. As this represents a full grant of the benefits sought, this issue is no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). For the remaining claims on appeal, the Board finds that remand directives have been substantially complied with as it relates to the claim of service connection for a right eye disability; therefore, the Board will proceed with adjudication of this claim. Stegall v. West, 11 Vet. App. 268, 271 (1998). However, the claim of service connection for a bilateral leg disability requires additional development and is discussed in the Remand portion of the decision further below. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (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, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may 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). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b). Entitlement to service connection for a right eye disability. The Veteran seeks service connection for a right eye disability. After reviewing the evidence of record, the Board finds that service connection is not warranted. Service treatment records (STRs) show that the Veteran complained of his eyes itching in service. Post-service records show that the Veteran was diagnosed with diabetic macular edema in a March 2015 private optometric visit. Alternatively, in a December 2021 VA examination for eye conditions, the examiner found that the Veteran did not have a right eye disability. In doing so, the VA examiner noted that during the examination the Veteran reported that he was examined and diagnosed in service with "some kind of eye issue" because of his itchy eyes. He reported that his eyes were not examined again until 2015 when he was diagnosed with a "ripple" in his eye, but he did not know exactly what was going on and did not remember the diagnosis. Moreover, the VA examiner noted that during the examination, the Veteran denied having any symptoms, including itchy eyes or any blurry vision at distance; and he denied taking any medications for his right eye. Based on the above and remaining evidence, the Board finds that the evidence does not favor granting the claim. Here, the most persuasive evidence of record shows the Veteran does not have a current right eye disability that was caused by service. The evidence shows that the Veteran complained of "itchy eyes" in service; however, the record shows that in addition to complaining of his eyes itching, the Veteran also reported symptoms of sinus congestion, chest congestion, and sneezing, and was assessed as having allergic rhinitis. In the Veteran's VA eye examination, the VA examiner found no evidence of a right eye disability, which is consistent with the Veteran's report of not having any symptoms or treatment for his right eye. Further, although private treatment records show a diagnosis of diabetic macular edema in 2015, the VA examiner found that this condition appears to have resolved as no signs of macular edema could be seen on slit lamp examination and the Veteran's visual acuity was normal. Moreover, the examiner further found that even though the Veteran complained of itchy eyes in service, the issue of diabetic macular edema would not be associated with any sort of eye allergy but would be due to diabetes. As such, the Board concludes that the evidence most favorably shows that the Veteran does not have a diagnosed right eye disability that can be attributed to his active duty service; thus, the evidence weighs against the claim. The benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, (Fed. Cir. Dec. 17, 2021). Accordingly, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for a left leg disability is remanded. 2. Entitlement to service connection for a right leg disability is remanded. The Veteran seeks service connection for a bilateral leg and/or knee disability. The Board notes that the Veteran filed a claim of service connection for a bilateral knee disability. However, in the Board's February 2019 decision, the claim was expanded to include a right or left leg disability. Pursuant to the Board's last remand, a medical opinion was obtained in December 2021 to determine the etiology of the Veteran's bilateral knee disability. At that time, the examiner found that the Veteran's bilateral knee condition was not related to service. However, the Board finds this opinion is inadequate. In rendering an opinion, the examiner did not provide a medical rationale to support his negative nexus opinion and merely relied on the absence of a documented right or left knee condition since service. The Board notes, however, that it is not only the continuity of treatment that is relevant, but also the continuity of symptoms regardless of treatment. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). In this regard, the Board notes that the Veteran has not specifically stated that he has had knee pain or other problems with his knees since service; however, the Board observes the Veteran's March 2017 VA Form 9 where he seems to suggest the same as he noted that his knees do not function properly due to prolonged standing, excessive climbing, and boarding of ships in service. Therefore, since the examiner did not provide a medical rationale or consider the Veteran's lay statement, remand is warranted to obtain an adequate medical opinion. The Board also notes that VA treatment records from January 2022 show the Veteran was referred to a private orthopedic facility for his knees. In addition, private treatment records were associated with the claims folder in March 2022 which indicated the Veteran was referred to an orthopedic specialist in September 2015; however, no attempts have been made to retrieve these records. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims folder. 2. Obtain any outstanding private treatment records related to the Veteran's bilateral knee disability, specifically any treatment records at a private orthopedic facility in 2015 and 2022 (the latter upon referral by the VA). The Veteran's assistance should be requested as needed. All obtained records should be associated with the evidentiary record. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral knee disability. The claims folder, including a copy of this remand and all lay statements of record, should be provided to the examiner for review. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a right and/or left knee disability that was incurred in service, or is otherwise related to service and explain why or why not. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, and all other lay evidence of record, including those of continuity of symptomatology, should be considered in formulating any opinion. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. 4. Then, readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.