Citation Nr: 21063394
Decision Date: 10/14/21	Archive Date: 10/14/21

DOCKET NO. 19-21 816
DATE: October 14, 2021

ORDER

Entitlement to service connection for a right eye disability (claimed as right eye injury) is denied.

FINDING OF FACT

A right eye disability is not shown to have begun during active service, or to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest to a compensable degree within one year of discharge from 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, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from December 1965 to December 1967. 

The Board notes that this claim was previously before the Board in February and July 2021.  At such time, the Board remanded the claim for further development and adjudication. The Board finds there has been substantial compliance with the Board's remand orders as they relate to the issue denied herein, and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).

Entitlement to service connection for a right eye disability (claimed as right eye injury) is denied.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.

Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R.§ 3.303 (b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

When there is an approximate balance of positive and negative evidence 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Veteran alleges that he has a right eye disability, which either began during or was caused by his active-duty service.  Specifically, he contends that he was assaulted in service in 1966 which injured his eyes.  See e.g., May 19, 2020 appellate brief, June 19, 2018 notice of disagreement (NOD).

The Veteran's service treatment records are silent for any complaints, treatment, or diagnosis of a right eye disability.  However, the Veteran's 1966 assault was noted. The documented injuries included an open fracture to the left mandible and laceration of the superior eyelid. 

The Veteran's post-service treatment records reflect that the Veteran was diagnosed with and treated for nuclear sclerotic cataracts.  The Veteran underwent cataract surgery in 2018.  The Veteran claims that his treating physician indicated that his cataracts were related to his in-service incident.  However, the Veteran's records do not include any etiological opinions, nor do they provide a link to the Veteran's active-duty service.  

In May 2018 the Veteran underwent a VA Eye Conditions examination with an accompanying disability benefits questionnaire (DBQ).  The examiner noted that the Veteran suffered from nuclear sclerotic cataracts, dermatochalasis, diabetes mellitus without ocular complications, and epiretinal membrane without edema of the right eye.  He opined that the Veteran's current right eye disability, to include nuclear sclerotic cataracts, "appeared to be age related." The VA examiner further stated that "[a]lthough trauma may cause a cataract related to an injury, such as the assault from 1966, it is not likely that the cataracts are related to the incident as they occurred many years later."  However, the Board found in its February 2021 remand that the May 2018 examination and opinion were inadequate as the examiner did not consider the Veteran's lay statements (subsequently submitted in June 2018) that his VA physician indicated that his right eye disability was related to trauma as evidenced by his detached lens. Furthermore, the Board found that the examiner failed to provide a complete rationale as the examiner merely stated that the Veteran's cataracts had not occurred for many years after his 1966 assault. 

In May 2021 the Veteran underwent another VA Eye Conditions examination with an accompanying DBQ. The examiner noted that the Veteran suffered from hypertensive retinopathy, dry eye syndrome and suspected glaucoma. The examiner noted that the Veteran reported that he was assaulted in service in June of 1967 and suffered a laceration of the eye lid as well as an open facial fracture. The Veteran reported that he was hospitalized for his injuries and had problems with his eyes ever since.  The examiner opined that the Veteran's claimed condition was less likely as not incurred in or caused by the claimed in-service injury, event, or illness.  The examiner provided the rationale that there was insufficient evidence to opine that a traumatic cataract resulted from the assault the Veteran experienced in service.  The examiner found that this was primarily due to the fact that cataract surgery was performed and there was no way to examine them and that if any trauma had been present, it no longer existed.  Furthermore, the examiner noted that the medical records indicated that the cataracts were age related and not traumatic.  Finally, the examiner noted that the Veteran alleged that his treating physician indicated that his right eye cataract was traumatic evidenced by a detached lens.  However, the examiner noted that he was unable to find any notes or examinations by the Veteran's treating physician to corroborate the Veteran's contentions. Therefore, the examiner found that because of a lack of evidence in the medical record and on examination, he could only opine that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  However, the Board in its July 2021 remand found that the May 2021 opinion failed to adequately address the lay evidence of record and relied almost entirely on the lack of prior medical documentation that the cataracts were related to the conceded in-service assault. Therefore, the Board found that an additional opinion was needed. 

In August 2021 the Veteran underwent a final VA Eye Conditions examination with an accompanying DBQ.  The examiner noted that the Veteran suffered from bilateral cataracts.  The examiner opined that it was less likely than not that the Veteran's claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. He provided the rationale that the descriptions of the Veteran's cataracts show that they were mild until about 2018 and that the gap between his conceded in-service trauma and his cataracts development speaks against them being traumatic.  Furthermore, the cataracts were nuclear sclerotic and did not show the characteristics typical of traumatic cataracts.  Documentation in January and September 2018 mentioned mild nuclear cataracts. The cataracts in each eye were very similar to each other and nuclear and not in the periphery of the lens.  This type of cataract is age related, not traumatic. Traumatic cataracts were not mentioned on these examinations.  For a diagnosis of traumatic cataract in one eye it should differ in appearance from the other eye (not the occurrence for this Veteran).  The history and examination of the Veteran did not show evidence of a cataract that was traumatic.  Furthermore, the examiner found no notes from the Veteran's treating physician who he claims hypothesized that the right eye cataract could have been traumatic.  Therefore, the examiner found that it was less likely than not that the Veteran's cataract was the result of the Veteran's active military service to include an assault on the Veteran that caused injury to his head and face in 1966.

Throughout the appeal the Veteran has provided lay statements in support of his claim.  The Veteran has argued that his right eye disability began in or is the result of his service.  In a statement submitted along with his NOD in June 2018, the Veteran asserted that "[m]y detached lens was discovered during a cataract examination.  My VA physician said that my detached lens was trauma related. The only trauma I've experienced was the assault in 1966."

The Board notes that the Veteran has a current diagnosis of a right eye disability, specifically cataracts; therefore, the first element of service connection, whether for direct or presumptive service connection, is met.

As for presumptive service connection and service connection based on continuity of symptomatology, a right eye disability, specifically cataracts, is not a chronic disease subject to such forms of service connection.  38 C.F.R. §§ 3.303, 3.307, 3.309.  Furthermore, there is no indication of any continuity of treatment.  Therefore, presumptive service connection or service connection based on continuity of symptomatology is not warranted.

As for direct service connection, the Board again notes that the Veteran's cataracts were not diagnosed during his military service or for many years thereafter.  However, the Veteran's assault in 1966 has been conceded, and therefore the second element of direct service connection has been met.  Therefore, what remains for the Board to determine is whether the Veteran's current right eye disability is related to his in-service assault.  

As was noted above, while both the May 2018 and May 2021 VA examiners provided negative etiological opinions, the Board previously found them to be inadequate for adjudication purposes. Therefore, the Veteran was provided with an additional examination and medical opinion in August 2021.  The August 2021 examiner found that the Veteran's right eye disability, specifically his cataracts were not traumatic in nature but rather age related.  Therefore, he opined that the Veteran's claimed right eye disability was not incurred in or caused by his active-duty service to include his in-service assault.  As the August 2021 examiner provided a sound medical explanation and rationale for his opinions, the Board finds it very probative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  Furthermore, there are no contrary opinions of record.  As such, even in the light most favorable to the Veteran, direct service connection is not warranted.

The Board acknowledges the Veteran's statements that his right eye disability is related to his military service.  However, a determination as to whether the Veteran has a condition that is related to service requires the expertise of a medical professional as such determination may only be made after a clinical analysis, which a lay person does not have the requisite training or knowledge to undertake. As such, the matter is a complex question that may not be competently addressed by lay evidence, and the Veteran's own opinion in this regard is nonprobative evidence.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

Therefore, while the Veteran believes his right eye disability is related to his service, the Board concludes that, the preponderance of the evidence is against finding that such began during active service, or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d).

Based on the foregoing, the Board finds that a right eye disability is not shown to be causally or etiologically related to any disease, injury, or incident during service.  Consequently, service connection for such disability is not warranted.  In reaching such a decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal, and his claim must be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 

 

L. M. BARNARD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Unger, 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.