Citation Nr: 22019247 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 15-02 416 DATE: March 31, 2022 ORDER Entitlement to service connection for a bilateral eye disability is denied. FINDING OF FACT The evidence does not demonstrate that the Veteran's bilateral eye disability had its onset during active duty service or was otherwise etiologically related to active duty service; nor did it occur during a period of active duty for training of his Marine Corps Reserve service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral eye disability have not been met. 38 U.S.C. §§ 101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from July 1991 to January 1992 with additional service in the Marine Corps Reserves from January 1992 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The case was initially brought before the Board in December 2018, at which time the Board, in pertinent part, denied service connection for an eye disability. The Veteran appealed the December 2018 decision to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2020 Order of the Court granting a June 2020 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate the December 2018 Board decision that denied the Veteran's claim of entitlement to service connection for an eye disability and remand the matter for compliance with the terms of the JMPR. The favorable decisions granting service connection for left and right knee disabilities were not disturbed. The case was returned to the Board. In November 2020, the Board remanded the issue on appeal for additional development. As the actions specified in the remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. In compliance with the November 2020 Board remand, the RO sent the Veteran letters in November 2020 and June 2021 noting that the Veteran had indicated his treatment from Dr. K.M. in March 1995 for his bilateral eye disability and requesting that the Veteran complete a VA Form 21-4142 and VA Form 21-4142a to obtain treatment records. To date, the Veteran has not submitted a completed VA Form 21-2142 or VA Form 21-4142a. Further, the RO asked the Veteran to provide the date and location of the specific dates of active duty for training or inactive duty for training that he was performing when the bilateral eye disability was incurred and any other evidence he has in his possession that will support his claim. The Veteran did not respond. Given the decision by the Veteran not to participate in any further development of his claim, the Board recognizes that the duty to assist is a two-way street. Wood v. Derwinski, 1 Vet. App 190, 193 (1991). Here, the Board finds that, as the Veteran has rejected VA's attempts to generate the necessary information to assist with substantiating his claim, there is no duty to seek further development. Moreover, in compliance with the November 2020 Board remand, the RO made another attempt to retrieve the Veteran's service treatment records for his Marine Corps Reserve service. In a March 2021 response from the National Personnel Records Center (NPRC), the NPRC explained that the Department of Defense determined that paper service treatment records for the Veteran's Marine Corps Reserve service could not be retrieved. All electronic medical information available had been provided; however, a review of the record reveals that the electronic records did not contain any information. In a September 2021 letter, the RO also asked the Veteran to provide any copies of treatment records that may be in his possession. In October 2021, the NPRC responded that the Veteran's entire personnel file had been associated with the claims file. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. 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). For the above reasons, the Board finds that VA has fulfilled its duties to notify and assist the Veteran. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the claim. Service Connection 1. Entitlement to service connection for a bilateral eye disability The Veteran asserts that his bilateral eye disability was caused by his military service. He contends that he sustained an eye injury while serving during a period of Reserve two-week training in Panama in June 1995 with the 3/24th Infantry Company. See January 2012 VA Form 21-526 and December 2014 VA Form 9. Service connection may be granted 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(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Only "veterans" are entitled to VA compensation. 38 U.S.C. § 1131. The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty; or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). The fact that a claimant has established status as a "veteran" for other periods of service (active duty, etc.) does not obviate the need to establish that he is also a "veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). However, once a claimant has achieved veteran status for a single disability incurred or aggravated during that period of ACDUTRA, that status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA. Hill v. McDonald, 28 Vet. App. 243, 252 (2016). The question before the Board is whether the Veteran's bilateral eye disability is etiologically related to his active duty service or occurred during a period of ACDUTRA. Based on a careful review of all the subjective and clinical evidence, the Board finds that the most persuasive evidence weighs against finding service connection for a bilateral eye disability is warranted. Initially, the Board notes that the Veteran's military personnel records show that he served a period of ACDUTRA in Panama for approximately two weeks from July 1992 to August 1992. The personnel records do not show any further service in Panama during his Marine Corps Reserves service. During the Veteran's period of active duty service from July 1991 to January 1992, his service treatment records (STRs) reflect that he entered service with defective distant and near vision as noted on his June 1991 enlistment examination. A November 1991 STR documents that the Veteran complained of pain and swelling to his left eye for the past 24 hours. An objective evaluation revealed visual acuity with glasses, both eyes were equal and reactive to light, a pink color in left eye with conjunctiva, red, and inflamed. His vision was 20/20 bilaterally. He was diagnosed for conjunctivitis to left eye. At a January 1992 separation examination, the Veteran's clinical evaluation showed uncorrected distant vision at 20/400 bilaterally. As discussed above, the record does not contain any paper STRs for the Veteran's period of Marine Corps Reserves service from January 1992 to July 1996. His electronic record of treatment records, for that same period, did not contain any information. According to a June 1995 letter from Dr. K.M., the Veteran was first evaluated by Dr. K.M. in March 1995. Dr. K.M. found that the Veteran had lattice degeneration in the right eye and a retinal detachment in the left eye. Two days after the initial evaluation, the Veteran underwent surgery to the left eye in March 1995. Dr. K.M. explained that the Veteran had a vitrectomy with scleral buckle to the left eye for retinal detachment and cryotherapy to the right eye for lattice degeneration. See July 1995 Dr. K.M. Note. When the Veteran returned for treatment in June 1995, Dr. K.M. found that the Veteran's visual acuity in the right eye was 20/20 and the left eye was 20/400. There was no evidence of a recurrent retinal detachment. See June 1995 Dr. K.M. letter. An April 1996 Department of the Navy memorandum reflects that the Veteran was not physically qualified for retention in the Marine Corps Reserve because of lattice degeneration in the right eye with retinal detachment of the left eye. In November 2013, the Veteran submitted an October 2013 Report of Consultation and Examination, which was prepared by Dr. P.Y., a board certified chiropractor. Dr. P.Y. found that the Veteran had residual secondary conditions to his detached retina of the left eye, including legal blindness in the left eye, chronic cephalgia, altered binocular vision, bilateral cataracts, and monocular vision. Dr. P.Y. determined that the Veteran's detached retina of the left eye was diagnosed and the surgery was performed by Dr. K.M. while the Veteran was on active duty. As noted above, the Veteran indicated that he injured his eye during his Reserve two-week training in Panama. Records show that the Veteran served in Panama for a two-week period from July 1992 to August 1992, which was three years before his initial treatment by Dr. K.M. for his lattice degeneration in the right eye and a retinal detachment in the left eye. Based on the records showing the Veteran's presence in Panama in 1992 for a two-week period of Reserve service, the Board finds that his lay statements that an eye injury occurred while performing Reserve training in Panama are both competent and credible. However, the Board finds that the Veteran's bilateral eye disability, which was diagnosed in 1995, did not occur during a period of ACDUTRA. Therefore, service connection for a bilateral eye disability based on his Marine Corps Reserve service is not warranted. Moreover, the Veteran has not presented any competent medical evidence that his bilateral eye disability was etiologically related to his active duty service. Although Dr. P.Y. found that the Veteran's eye disability was diagnosed during active duty service, the Board finds that Dr. P.Y.'s opinion was based on an inaccurate factual premise, as the Veteran was discharged from active duty service in January 1992. Thus, Dr. P.Y.'s conclusion is insufficient to award service connection for the Veteran's bilateral eye disability based on his active duty service. In summary, the evidence is neither evenly balanced or approximately so with regard to whether the Veteran's claim for service connection for a bilateral eye disability is warranted. Rather, the evidence persuasively weighs against service connection for a bilateral eye disability. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to these claims. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Accordingly, the service connection claim for a bilateral eye disability is denied. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, 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.