Citation Nr: 18160393
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 10-20 695
DATE:	December 27, 2018
ORDER
Entitlement to service connection for a bilateral eye disorder is denied.
REMANDED
Entitlement to service connection for memory loss, to include as secondary to service-connected soft tissue injury with laceration of the scalp is remanded.
Entitlement to service connection for an acquired psychiatric disorder, to include depression and generalized anxiety, to include as secondary to service-connected soft tissue injury with laceration of the scalp is remanded.
FINDING OF FACT
The Veteran does not have any residuals from an in-service eye injury, and the preponderance of the evidence is against a finding that his current eye problems are related to any disease or injury, or other event in service.
CONCLUSIONS OF LAW
The criteria for entitlement to service connection for bilateral eye disorder have not been met.   38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Marine Corps from May 1991 to May 1995. 
These matters were previously before the Board in a March 2017 decision, in which the Board denied entitlement to service connection for bilateral eye disorder, memory loss, and acquired psychiatric disorder.  The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court), and the Board’s March 2017 decision was vacated pursuant to a November 2017 Order, following a Joint Motion for Remand.  The Board remanded the matters in June 2018 for compliance with the parties’ determination in the November 2017 Joint Motion for Remand. 
Service Connection
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). 
Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when “all of the evidence, including that pertinent to service, establishes that the disease was incurred during service.”  See 38 C.F.R. § 3.303 (d).
The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).
1.  Entitlement to service connection for bilateral eye disorder
The Veteran seeks entitlement to service connection for a bilateral eye disorder.  He reports that he has experienced blurred vision, dry irritated eyes, and sensation of gooeyness in his eyes since his period of service.  The Veteran asserts that his current eye problems are a result of an in-service bilateral corneal abrasion injury. 
A review of the Veteran’s service treatment records shows that on August 31, 1994, he presented with complaints of right eye pain following an injury after a broken window pane fell on him a day ago.  Examination revealed sclera abrasion to right eye above and below iris on inner portion of eye.  His eye was flushed and he was prescribed eye drops to treat for corneal abrasions to the right eye.  
A September 1, 1994 follow-up treatment record noted that the Veteran complained of dull pain in on right eye which increased with turning head.  On examination, the Veteran had sclera abrasion to eye above and below iris and he had sclera abrasion to the right eye above the iris with improvement of an abrasion below iris right eye.  He was assessed with corneal abrasion, and prescribed eye drops for the left eye and prescribed ointment and eye patch for right eye.  A September 2, 1994 service treatment continued to note findings of right eye sclera abrasions below the iris and to the left of the iris.  The Veteran’s visual acuity was 20/20 bilaterally, and he was prescribed new eye drops.  He was advised to return for a follow-up on September 6, 1994; however, a record of that treatment session is not available. 
A September 13, 1994 service treatment record shows that the Veteran presented with upper respiratory complaints, and eye examination revealed his conjunctiva and sclera white, PERRLA (pupils equal, round, react to light, accommodation).  He did not report any eye problems at that time. 
The Veteran’s March 1995 examination prior to separation shows his eyes were evaluated as normal and his visual acuity was 20/20 bilaterally on examination.  In the associated report of medical history, the Veteran reported he had history of eye trouble.  It was noted that he suffered bilateral corneal abrasions from glass in December 1993, and he had occasional episodes of blurred vision at night and he used artificial tears/eye drops. 
VA treatment records show the Veteran’s eyes were evaluated as normal on clinical evaluation in June 2000.  He complained of itchy eyes which was associated with diagnosis of allergic rhinitis in November 2004.  A June 2005 VA treatment record shows he complained of bilateral eye pain, and it was noted that he was currently a student and reads a lot with eye strain.  He was treated for acute conjunctivitis in October 2006.  A January 2012 VA treatment record noted that the Veteran had excessive blinking during clinical evaluation and he reported current allergies.  Subsequent VA treatment record show that the Veteran was referred to eye clinic for glasses check, and he was first prescribed spectacles for vision correction in May 2016 based on diagnoses of refractive errors. 
The Veteran was afforded a VA eye examination in April 2014. The examiner noted a diagnosis of dry eye syndrome.  Clinical examination showed the Veteran had uncorrected near vision 20/100 in right eye and 20/50 in left eye, which corrected 20/40 or better bilaterally.  Examination of his cornea revealed dry eyes and his external lids/lashes were evaluated as normal.  The VA examiner found no evidence of any residuals of in-service corneal abrasion on clinical evaluation.  
The Veteran was afforded another VA examination of the eyes in July 2016.  He was diagnosed with dry eye syndrome and blepharitis (inflammation of the eyelid), and it was noted that the blepharitis was secondary to his dry eye syndrome.  The Veteran reported he had recently been prescribed glasses as well as medicated eye drops for eye infection, which he used until completion.  He denied any current use of eye drops or ocular medication.  Based on clinical evaluation, the VA examiner found that the Veteran had stable ocular health, congenital/developmental refractive error that was fully correctable, and mild blepharitis secondary dry eye syndrome in both eyes.  The VA examiner concluded that there was no evidence of residuals of corneal abrasion observed on current clinical evaluation. 
Here, the evidence of record demonstrates that the Veteran has current diagnoses of dry eye syndrome and secondary blepharitis as well as reflective errors.  In addition, the Veteran’s service treatment records show he sustained bilateral corneal abrasions in August 1994 and he was prescribed eye drops. 
Initially, the Board notes that service connection is not generally established for refractive error of the eye as it is not a disease or injury within the meaning of applicable legislation providing compensation benefits absent superimposed disease or injury.  38 C.F.R. §§ 3.303 (c), 4.9 (2018); see also VAOPGCPREC 82-90.  
Here, the service treatment records do document that the Veteran was treated for bilateral corneal abrasion; however, both the 2014 and 2016 VA examiners have found that the corneal abrasions in service resolved with no permanent residuals.  Although there is evidence of an event or trauma to the right eye in service, there is no evidence that the Veteran’s refractive errors were aggravated or subject to a superimposed disease or injury during his military service that resulted in additional disability.  
In this regard, the Veteran’s visual acuity was evaluated as normal at the time of his separation, and he was not diagnosed with refractive errors until 21 years after his separation from service.  There is no evidence that refractive error was subject to superimposed disease or injury during his period of service.  In addition, the 2016 VA examiner concluded that the Veteran’s refractive error was congenital/ developmental in nature and the corneal abrasions in service had resolved without residuals.  Moreover, the August 2018 VA examiner clearly found that since the current complaints were many years after service, the Veteran’s current eye symptoms were not related to service.  Moreover, there is no contrary medical opinion of record.
The remaining question before the Board is whether the competent evidence of record demonstrates that the Veteran’s current diagnosed dry eye syndrome and secondary blepharitis began during service or is otherwise related to his period of service.  The Board finds that the evidence does not. 
Post-service medical records show the Veteran was not diagnosed with dry eye syndrome until 2014, which comes 19 years after his separation from service.  While the Veteran is competent to report having experienced symptoms of blurred vision and sensations of itchiness and gooeyness in his eyes since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of dry eye syndrome.  The issue is medically complex, as it requires knowledge of the ocular systems.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  
Further, the record contains the report of an August 2018 VA medical opinion, in which the VA examiner opinion that the Veteran did not have any current residuals from in-service corneal abrasion, and that his current diagnosed dry eye syndrome was less likely than not related service, to include injury from bilateral corneal abrasion related to August 1994 incident with broke window glass.  The rationale was based on a review of the claims folder, which included the service treatment records, VA treatment records, prior VA examination reports, and the Veteran’s lay statements.  The VA examiner determined that based on review of the claims folder, there was no diagnosis or treatment for dry eye syndrome recorded in the service treatment records or in the post-service treatment records until 2014.  
The 2018 VA examiner acknowledged that the service treatment records showed treatment for bilateral corneal abrasion in August and September 1994, but there was no subsequent treatment for the condition.  The Veteran’s March 1995 examination prior to separation revealed no treatment or residuals from eye injury.  Although the Veteran recorded he used eye drops on his March 1995 report of medical history, the VA examiner noted that there was no documentation of prescription for, or use of, artificial tears or other ocular medication was discovered in the service treatment records subsequent to the September 2, 1994 follow up treatment session, to include through post-service VA treatment records dated in February 2016.  A May 2016 VA treatment record noted that eye examination revealed no residuals from the 1994 injury and documented prescription of ocular medication for recent bacterial conjunctivitis, which were used to completion.  The Veteran had denied use of any eyedrops or ocular medication at the time of 2014 VA examination and 2016 VA examination.  The 2018 VA examiner concluded that based on review of the claims folder, including the Veteran’s reported medical history, the Veteran did not have residuals from in-service corneal abrasion, and it was less likely than not that his current diagnosed dry eye syndrome is related to any in-service injury, disease, or event, to include 1994 bilateral corneal abrasion injury. 
The August 2018 examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Moreover, there is no contrary medical opinion of record. 
The Board has considered the Veteran’s reports of the use of eye drops at the time of discharge from service has been considered.  However, the Board finds that it is not outcome determinative in this case because the competent medical evidence of record establishes no residuals from the in-service corneal abrasion and his dry eye syndrome and secondary blepharitis was not noted until many years following discharge from service.  The Board finds that the preponderance of the competent evidence of record does not support any relationship to service. 
The Veteran is competent to note observable symptoms such as blurred vision and dry irritated eyes; however, he does not possess the requisite medical expertise necessary to provide a cause and effect relationship between his current symptoms and his in-service eye injury as this involves a complex medical question.  Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Accordingly, his statements in this regard carry some probative value, and they are outweighed by the examiner’s opinion which is based on a review of the record and examination of the Veteran’s eyes. 
Consequently, the preponderance of the evidence is against the claim and service connection for residuals of an in-service eye injury is not warranted.  As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application.  38 U.S.C. § 5107 (b), 38 C.F.R. § 4.3.
REASONS FOR REMAND
1.  Entitlement to service connection for memory loss, to include as secondary to service-connected soft tissue injury with laceration of the scalp is remanded.
2.  Entitlement to service connection for an acquired psychiatric disorder, to include depression and generalized anxiety, to include as secondary to service-connected soft tissue injury with laceration of the scalp is remanded.
As noted in the previous June 2018 Board remand, the parties to the November 2017 Joint Motion for Remand determined that the Veteran’s complaints of headaches were related to his reports of in-service head injury and are considered relevant to the claims for service connection for memory loss and acquired psychiatric disorder as due to in-service head injury.  
The Veteran has submitted additional evidence in support of his claim for service connection for headaches as result of in-service head injury.  See October 2018 medical statement from Dr. A.R.  Although the RO has considered Dr. R.’s October 2018 medical statement in an October 2018 rating decision that continued the denial of service connection for headaches, it has not been considered in regard to the issues on appeal.  
The Veteran has declined to waive initial consideration of this additional medical statement.  See October 2018 statement in support of the case.  Accordingly, the claims for service connection for memory loss and acquired psychiatric disorder must be returned to the Agency of Original Jurisdiction for consideration of the additional evidence and issuance of a supplemental statement of the case (SSOC) if such claims are not granted.  See 38 C.F.R. § 19.31 (2018). 
In addition, a remand is needed to obtain outstanding VA treatment record dated prior to June 2000.  The Veteran has reported he has received treatment for headaches and residual of head injury from VA medical facilities in San Antonio since 1995.  In an October 2018 report of general information, the RO noted that the Veteran first registered for VA care in October 1995, and he was first scheduled for VA treatment on December 1, 1995.  
The Board notes that there are extensive VA treatment records are of record.  The record contains the electronic VA treatment record dated from June 2000 to October 2018, which appear to be complete.  In addition, the record contains electronic VA laboratory and diagnostic test reports dated from December 1995 to September 2018.  However, the record does not contain the Veteran’s VA clinical treatment records dated prior to June 2000, which are may be paper documents as opposed to electronic documents.  
The record does not reflect that any attempt has been made to obtain copies of paper versions of VA treatment records (prior to electronic records).  As such, on remand all paper VA treatment records dated since December 1995 from VA medical facilities in San Antonio must be obtained.
The matters are REMANDED for the following action:
1.  Attempt to obtain all paper VA treatment records dating from December 1995 from the VA medical facilities in San Antonio.  This must include the appropriate search archived or retired paper records. 
(Continued on the next page)
 
All efforts to obtain these records should be fully documented and a negative response must be provided if records are not available.
 
K. J. ALIBRANDO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Murray, Counsel 

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