Citation Nr: 22018554 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 10-09 890 DATE: March 29, 2022 ORDER Service connection for a vision disability is denied. REMANDED Service connection for a skin disability other than atypical dermatitis is remanded. FINDING OF FACT The Veteran's vision disability initially manifested years after separation from service and is not shown to be etiologically related to active duty service or to the Veteran's service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for a grant of service connection for a vision disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from March 1966 to March 1968, including service in the Vietnam War. The Veteran testified before the undersigned Veterans Law Judge during a May 2021 hearing and a transcript is of record. These matters are on appeal from July 2009 and February 2011 rating decisions. The Board remanded these issues in January 2015 to attempt to obtain additional treatment records, to provide the Veteran with additional notice, and to afford the Veteran VA examinations. The Agency of Original Jurisdiction (AOJ) has done so. The Board remanded these issues again in August 2021 to afford the Veteran additional VA examinations. The December 2021 VA examination is adequate with regard to the vision claim because it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes his vision symptoms in detail sufficient to allow the Board to make a fully informed determination. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). There was therefore substantial compliance with the remand directives with regard to the issue being decided below. See Stegall v. West, 11 Vet. App. 268 (1998). In July 2018 and December 2019 statements, the Veteran contended that VA failed in its duty to assist by not developing his claims fully. However, neither the Veteran nor his representative have raised any specific issue with the duty to notify or duty to assist with regard to the claim being decided below. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Vision Disability The Veteran contends that he has a vision disability that was caused or aggravated by his service-connected diabetes mellitus. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The benefit of the doubt rule provides that a claimant will prevail in a case where the positive evidence is in approximate balance with the negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. It is only when the weight of the evidence is persuasively against the claim that the claim must be denied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The Veteran's service treatment records contain no mention of any vision symptom or diagnosis and the Veteran does not contend that he had any vision symptoms during his active duty service. The Veteran's December 1965 entrance examination report and his February 1968 separation examination report both note normal vision. In his September 2009 claim for service connection, the Veteran contended that he had diabetic retinopathy. In an August 2010 claim for service connection, the Veteran also contended that he had glaucoma. A May 2010 optometric treatment record from a federal facility specifically notes no retinopathy. A March 2016 VA treatment record again specifically notes no retinopathy, but also notes bilateral cataracts and a conjunctival hemangioma, for which the treatment provider "advised no rubbing of eyes." This is the only mention of a hemangioma during the period on appeal and the Veteran has not contended that it is related to his active duty service or to his service-connected diabetes mellitus. A November 2016 VA treatment record notes a history of restorative lens implants, again notes no retinopathy, and also notes pseudophakia (artificial lens after cataract removal) and presbyopia. A February 2018 VA treatment record again notes no retinopathy and also notes bilateral dry eyes and presbyopia. Presbyopia is a type of hyperopia, which is a type of refractive error. Dorland's Illustrated Medical Dictionary, 881&1488 (33rd ed. 2020). Refractive errors of the eyes are congenital or developmental defects and not diseases or injuries within the meaning of the applicable legislation. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303 (c), 4.9 (2021). In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes even if visual acuity decreased in service, as refractive error of the eyes is not a disease or injury within the meaning of applicable legislation relating to service connection. The Veteran was afforded a VA examination for diabetes mellitus in December 2016. The clinician did not find that the Veteran had diabetic retinopathy. Fundoscopic examination of both eyes was within normal limits. During the May 2021 hearing, the Veteran's representative requested a medical opinion "to determine if [the Veteran] does have any eye conditions, whether it's retinopathy or glaucoma, we don't know the condition or cataracts somehow being affected by the diabetes." The Veteran was afforded a VA examination for eye conditions in December 2021. The clinician diagnosed posterior vitreous detachment of the left eye and bilateral pseudophakia. No glaucoma or retinopathy was found on examination. The clinician opined that the Veteran's vision disabilities were not caused or aggravated by his service-connected diabetes mellitus because most posterior vitreous detachments are caused by age-related changes, his pseudophakia is the result of surgical removal of his cataracts, and his cataracts were natural. The examiner also explained that the baseline for the Veteran's pseudophakia would be his cataracts prior to his surgery, and that there was no aggravation because the natural cataracts have been removed. The Veteran is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in this case he is not competent to diagnose himself with retinopathy or glaucoma or provide an etiology opinion for his other vision disabilities. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran in this case is not shown to possess or have possessed any pertinent medical training or expertise that would make him competent to render an opinion on the etiology of his vision symptoms during the period on appeal or to express an opinion about when his symptoms first warranted any medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide a medical diagnosis). Thus, the Veteran's contentions that he has diabetic retinopathy or glaucoma or that his vision disabilities are etiologically related to his service-connected diabetes mellitus are not competent medical opinions and they cannot be assigned any probative weight. Rather, the medical findings and opinions of trained medical professionals warrant greater probative weight than the Veteran's lay contentions. The record contains no diagnosis of diabetic retinopathy or glaucoma during the period on appeal. The December 2021 VA examination report specifically found no retinopathy or glaucoma and multiple treatment providers have also specifically found no retinopathy. The December 2021 VA clinician also provided an opinion with regard to the Veteran's diagnosed vision disabilities that is unfavorable to his claim and supported by an adequate rationale. The record contains no evidence to the contrary other than the Veteran's lay contentions, discussed above. Because the weight of the evidence is thus persuasively against finding that the Veteran's vision disabilities are etiologically related to his service-connected diabetes mellitus, service connection for a vision disability is denied. REASONS FOR REMAND 1. Service connection for a skin disability other than atypical dermatitis is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was most recently afforded a VA examination with regard to skin diseases in November 2021. The clinician diagnosed "Eczema/Atopic Dermatitis" and opined that this was not etiologically related to active duty service or caused or aggravated by his service-connected diabetes mellitus. The clinician declined to provide an opinion with regard to the etiology of the Veteran's lichen planus or urticaria because these had resolved prior to the examination, even though the Board had specifically instructed the clinician that "a disability is considered current if present at any point during the period on appeal, which began on January 29, 2008." In addition, it is unclear whether any of the disabilities mentioned above are distinct from the Veteran's atypical dermatitis, which is already service-connected. For these reasons, a remand is warranted to obtain an additional VA medical opinion. The matter is REMANDED for the following action: 1. Arrange for an opinion by an appropriate clinician who has not previously examined the Veteran for the purpose of determining the etiology of the Veteran's skin disability. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician is advised that a disability is considered current if present at any point during the period on appeal, which began on January 29, 2008. The clinician must provide an opinion as to the following: a. Whether the Veteran has had a skin disability during the period on appeal, including eczema/atopic dermatitis, lichen planus, urticaria, dermographism, dermatographism, and seborrheic keratosis, that is distinct from his service-connected atypical dermatitis. If the answer to a. is yes for any disability, the clinician must also provide opinions as to the following with regard to that disability: b. Whether the disability had its origin in service or is related to the Veteran's active service, including exposure to herbicides. c. Whether the disability was caused by the Veteran's service-connected diabetes mellitus. d. Whether the disability was aggravated by the Veteran's service-connected diabetes mellitus. The clinician is advised that service connection can be established due to herbicide exposure by direct proof of causation, and that it is insufficient to conclude that there is no direct causation simply because the Veteran's skin disability is not on the list of diseases and conditions that are presumptively associated with exposure to herbicide agents. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. The Veteran's report in a March 1995 claim of "soft, pimple size sores" on his face. b. The Veteran's reports of his symptoms during an August 1995 VA examination. c. A March 2016 VA treatment record noting lichen planus. d. An October 2016 VA treatment record noting dermographism/hives and that it is "not same rash as his prior LP rash." e. A May 2019 VA treatment record noting urticaria and dermatographism. f. A February 2020 VA treatment record noting seborrheic keratosis. g. The Veteran's testimony during the May 2021 hearing. The rationale for any opinion expressed should be provided. Note that a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding and that chronicity of care is not a requirement for service connection. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 2. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 3. Then, readjudicate the claim. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.