REFRACTIVE ERRORS OF THE EYE

RYAN T. KESSEL · 2026 · Case ID: 26003992

DENIED

Summary

The veteran, who served from November 1990 to September 1992 and again from May 2006 to August 2007, appeals the denial of service connection for a left eye condition, headaches, hypertension, and a back condition. The Board denied service connection for the left eye condition, citing it as a refractive error not compensable under VA regulations, and found the veteran's lay opinion insufficient to rebut the VA examiner's findings. For headaches, the Board acknowledged the veteran's claim of noise exposure related to his MOS as a tanker and a secondary claim related to hypertension. However, VA examiners opined it was less likely than not that the headaches were service-related or due to toxic exposures, citing lack of in-service complaints and post-service risk factors. The Board found the veteran's lay opinion inadequate to rebut these findings and denied the claim. Regarding hypertension, the Board found clear and unmistakable evidence that the condition pre-existed service and was not aggravated during service, thus rebutting the presumption of soundness. The Board also found the veteran's claim of hypertension secondary to PTSD lacked sufficient nexus evidence. For the back condition, the Board acknowledged the veteran's MOS as an Abrams Armor Crew member and his lay statement about pain from climbing in and out of tanks, finding this credible. However, VA examiner opinions found it less likely than not that the current back condition was service-related, citing a lack of chronic complaints or residual effects in service treatment records and the veteran's denial of recurrent pain post-service. The Board gave more weight to the VA examiner's opinion, finding the evidence persuasively against the claim. Service connection for all four conditions was denied.

Rationale

Refractive errors are not compensable under VA regulations.; Veteran's lay opinion insufficient to rebut VA examiner findings.; VA examiner opinions found diagnoses to be refractive errors.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

16-02 094

Full Decision Text

Citation Nr: 26003992
Decision Date: 03/31/26 Archive Date: 03/31/26

DOCKET NO. 16-02 094
DATE: March 31, 2026

ORDER

Service connection for a left eye condition is denied.

Service connection for headaches is denied.

Service connection for hypertension is denied.

Service connection for a back condition is denied.

FINDINGS OF FACT

1. The Veteran's left eye condition is not related to service.

2. The Veteran's headaches are not related to service and did not have their onset in service.

3. The Veteran's hypertension, which clearly and unmistakably preexisted his second period of service, was clearly and unmistakably not aggravated therein.

4. The Veteran's back condition is not related to service and did not have its onset in service.

CONCLUSIONS OF LAW

1. The criteria for service connection for a left eye condition are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.9.

2. The criteria for service connection for headaches are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

4. The criteria for service connection for a back condition are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1990 to September 1992 and May 2006 to August 2007.

The case is on appeal from a December 2013 rating decision.

In September 2018, the Board reopened the claims of service connection for status post right knee arthroscopy, acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, headaches, hypertension, and chronic back disability, and remanded those claims, as well as the claim of service connection for sleep apnea, for additional development.

In June 2022, the Board granted service connection for status post right knee arthroscopy, and remanded claims of service connection for a back condition, left eye condition, sleep apnea, hypertension, headaches, and an acquired psychiatric condition for additional development.

While the case was in remand status, the RO granted service connection for PTSD in an April 2024 rating decision. As the benefit sought was granted in full, the claim is no longer before the Board.

Concerning the claim of service connection for sleep apnea, the Veteran opted the claim into the Appeals Modernization Act (AMA) review system by submitting VA Form 20-0995 Decision Review Request: Supplemental Claim in April 2025 in response to a supplemental statement of the case (SSOC) issued in March 2025. As a result, the claim was withdrawn from the current appeal pending in the Legacy appeals system.

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Refractive errors of the eye are diseases or injuries for which service connection cannot
38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Refractive errors of the eye are diseases or injuries for which service connection cannot be granted. See 38 C.F.R. §§ 3.303(c), 4.9; see also O'Bryan v. McDonald, 771 F.3d 1376, 1380-81 (Fed. Cir. 2014) (refractive error of the eye is not a compensable disease because it is specifically excluded from the regulation even though refractive errors of the eye can progress) (citing Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003)).

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 Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021) (holding that if the positive and negative evidence is in approximate balance, which includes but is not limited to equipoise, the claimant receives the benefit of the doubt).

1. Service connection for a left eye condition.

The Veteran is seeking service connection for a left eye condition. He asserts he has a left eye condition due to an injury sustained at the firing range at Al Asad Air Base in Iraq, when gas from another service member's weapon sent debris in his eye. He asserts further that he was treated by a field medic and told to seek treatment when he returned to the United States. The Veteran stated that he was seen at the VA and provided with a prescription for glasses. See February 2014 Veteran Statement.

The Board finds the evidence of record establishes that the Veteran has a current disability. In this regard, VA treatment records reflect diagnoses of astigmatism and hyperopia. Thus, the current disability element of the claim is satisfied.

However, the Board finds service connection is not warranted for the current left eye conditions. Refractive errors of the eye are diseases or injuries for which service connection cannot be granted. See 38 C.F.R. §§ 3.303(c), 4.9. In this regard, the Veteran underwent an examination of his eyes in February 2009. At that time, he was diagnosed with astigmatism and hyperopia. He also stated that he did not have any symptoms related to any eye injuries. VA opinions concerning the etiology of the Veteran's left eye condition were obtained in April 2024, June 2024, and January 2025. The examiner who provided the opinions found that the diagnoses are refractive errors. Thus, the Board finds that the Veteran has refractive error and does not otherwise have an eye disorder that had its onset during active service or that is causally or etiologically related to any disease, injury, or incident during service. In this regard, the evidence of record reflects that the Veteran does not have an eye disorder other than a refractive error. In addition he denied any symptomatology related to any eye injuries.

The Board acknowledges the Veteran's contention that he has a left eye condition that is related to service. However, this is a complex medical question outside the competence of a non-medical expert to determine whether such a cause-and-effect relationship exists in this particular case. Thus, this nexus question requires expert consideration and cannot be considered within the competence of a non-expert lay witness. As an individual without medical training, the Veteran has not established the competence needed to rebut the expert medical opinions of record. See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015); Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012). As such, his opinion is not adequate to rebut the examiners' opinions as to the etiology of the claimed condition, nor is it otherwise sufficiently probative to be considered competent evidence t
such a cause-and-effect relationship exists in this particular case. Thus, this nexus question requires expert consideration and cannot be considered within the competence of a non-expert lay witness. As an individual without medical training, the Veteran has not established the competence needed to rebut the expert medical opinions of record. See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015); Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012). As such, his opinion is not adequate to rebut the examiners' opinions as to the etiology of the claimed condition, nor is it otherwise sufficiently probative to be considered competent evidence tending to increase the likelihood of a positive nexus between service and a left eye condition, and an opinion by a qualified medical expert is required to decide the claim.

Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for a left eye condition is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

2. Service connection for headaches.

The Veteran is seeking service connection for headaches. He asserts he has headaches due to noise exposure associated with his MOS of tanker. See February 2014 Veteran Statement. The Veteran also asserted that he had headaches that are secondary to his hypertension. See May 2022 Veteran Statement.

The Board finds the evidence of record establishes that the Veteran has a current disability. In this regard, VA outpatient treatment records show diagnosis of headaches. Thus, the current disability element of the claims is satisfied.

The Board finds that the evidence of record establishes the occurrence of an in-service event or injury, when reasonable doubt is resolved in the Veteran's favor. In this regard, the Veteran's DD 214 concerning his first period of service from November 1990 to September 1992 reflects that his MOS was Abrams Armor Crew. There is no indication that the Veteran sought treatment for headaches during either period of active duty. However, the Veteran is competent under the law to describe what he experienced while in the military. Thus, concerning the occurrence of noise exposure that led to headaches, the Board finds the Veteran's account of this experience to be credible and consistent with the circumstances of his service. See 38 U.S.C. § 1154(a).

In addition, concerning the Veteran's second period of active duty, the Veteran is presumed to have experienced toxic exposures. In a January 2023 VA memorandum, the Department of Defense provided the VA with authoritative data that verified the Veteran had qualifying service meeting the definition of a "Persian Gulf Veteran" under 38 U.S.C. § 1117 with verified service in the Southwest Asia theater of operations that satisfies the criteria for presumptive toxic exposure per 38 U.S.C. § 1119.

Thus, the question becomes whether there is a nexus between the Veteran's headaches and noise and any toxic exposure risk activities (TERAs) during service. Concerning this question, the evidence of record weighs against the claim.

In this regard, an examiner who provided a VA opinion in April 2024 determined that it is less likely than not that the Veteran's headaches were incurred in or caused by the claimed in service event. The examiner explained that he found no record of chronic or recurrent headaches beginning in service. He acknowledged that that an STR dated in November 1990 reflects that the Veteran reported a headache, however, there is no indication that headaches were noted thereafter on in the immediate post separation period. The examiner also noted that the Veteran denied headaches at the time of an April 1992 separation examination. The examiner acknowledged that an STR dated in August 2005 notes that the Veteran was diagnosed with headaches, however, there is an absence of evidence of any headaches during active service as the Veteran consistently denied headaches during service and at the time of separation. The examiner also explained that the Veteran was noted to have many post-service risk factors for headaches, such as hypertension, a smoking history, a prior history of cocaine abuse
in service. He acknowledged that that an STR dated in November 1990 reflects that the Veteran reported a headache, however, there is no indication that headaches were noted thereafter on in the immediate post separation period. The examiner also noted that the Veteran denied headaches at the time of an April 1992 separation examination. The examiner acknowledged that an STR dated in August 2005 notes that the Veteran was diagnosed with headaches, however, there is an absence of evidence of any headaches during active service as the Veteran consistently denied headaches during service and at the time of separation. The examiner also explained that the Veteran was noted to have many post-service risk factors for headaches, such as hypertension, a smoking history, a prior history of cocaine abuse, which all increase the risk for the development of migraine headaches.

In addition, the examiner who provided a VA opinion in June 2024 determined it is less likely than not that the Veteran's headaches were caused by the indicated TERAs, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all TERAs, including noise exposure, environmental hazards, burn pits, particulate matter, that the Veteran was exposed to during his service in Southwest Asia. The examiner explained that the Veteran's headaches can be due to a variety of factors with the vast majority of headaches being idiopathic with completely unexplained causes. He noted that the condition is occasionally vascular in nature, and other causes are hormonal, emotional, genetic, medication related, due to brain lesions, or many other causes. The examiner explained further that there is no evidence to attribute the condition to any one particular cause, nor is there documentation to show that the headaches began during a deployment or as a result of deployment to include any exposure events. He also stated that there is no medical or scientific evidence available that provides any indication of a relationship between the development of headaches and the noted TERAs.

The Board acknowledges the Veteran's contention that his headaches are related to service. However, this is a complex medical question outside the competence of a non-medical expert to determine whether such a cause-and-effect relationship exists in this particular case. Thus, this nexus question requires expert consideration and cannot be considered within the competence of a non-expert lay witness. As an individual without medical training, the Veteran has not established the competence needed to rebut the expert medical opinions of record. See Fountain, 27 Vet. App. at 274-75; Monzingo, 26 Vet. App. at 105-06. As such, his opinion is not adequate to rebut the examiners' opinions as to the etiology of the claimed condition, nor is it otherwise sufficiently probative to be considered competent evidence tending to increase the likelihood of a positive nexus between service and a visual impairment, and an opinion by a qualified medical expert is required to decide the claim.

Consequently, the Board gives more probative weight to the VA examiner's opinions. The Board finds VA examiner's opinions clear and unequivocal and are based on the relevant information, including the Veteran's statements, STRs, post-service records, and relevant medical research. Moreover, the examiner's explanations are logical and follow from the facts and information given. See Monzingo, 26 Vet. App. at 105-06; Nieves-Rodriguez, 22 Vet. App. at 304. The examiner who provided opinions in April 2024 and June 2024 determined that the Veteran's headaches were not related to service and did not have their onset in service. The examiner explained that the Veteran's STRs reflect that he denied the presence of headaches during service, headaches frequently have unexplained causes, and the Veteran has many post service risk factors for headaches.

The Board acknowledges the Veteran's contention that his headaches are secondary to his hypertension. The Board finds the Veteran's claim fails under a theory of secondary service connection as the Veteran is not service connected for hypertension. Thus, as secondary service connection presupposes that the underlying condition is service connected, the evidence is persuasively against finding service connection is warranted for headaches as secondary to hypertension. Thus, there is no reasonable doubt to resolve. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, service connection is not warranted for sleep apnea on a secondary basis. See 38 C.F.R. § 3.310.

Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for headaches is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

3
warranted for headaches as secondary to hypertension. Thus, there is no reasonable doubt to resolve. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, service connection is not warranted for sleep apnea on a secondary basis. See 38 C.F.R. § 3.310.

Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for headaches is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

3. Service connection for hypertension.

The Veteran is seeking service connection for hypertension. He asserts that he did not have hypertension prior to his enlistment and was prescribed medication to treat hypertension by the VA. See February 2014 Veteran Statement. He asserts further that he was diagnosed with high blood pressure in 2005 during a physical at Fort Benning, Georgia. See May 2022 Veteran Statement.

The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran's hypertension preexisted his second period military service from May 2006 to August 2007. In this regard, the Veteran asserts that he was diagnosed with high blood pressure in 2005 during a physical at Fort Benning, Georgia.

The Veteran's May 2006 entrance examination is absent of any notations of defects, infirmities, or disorders. Therefore, with respect to hypertension, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id.; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009).

Concerning the first prong, the most competent and credible evidence of record shows that there is clear and unmistakable evidence that the Veteran's hypertension preexisted his second period of service. The Veteran's STRs reflect elevated blood pressure readings and include a diagnosis of hypertension noted in August 2005, prior to his active duty period of service from May 2006 to August 2007.

Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence "that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012).

Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the
. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996).

The most competent and credible evidence of record illustrates that there is clear and unmistakable evidence that the disability was not aggravated by military service. In this regard, any indication of aggravation of hypertension is absent from the Veteran's August 2007 post deployment questionnaire and examination. In addition, blood pressure readings taken during this period of service are similar to those recorded in August 2005. The most competent and credible evidence of record illustrates that there is clear and unmistakable evidence that the disability was not aggravated by military service. As such, VA has met its high burden of showing by clear and unmistakable evidence both that the Veteran's hypertension preexisted service and was not aggravated by such. Thus, the presumption of soundness is rebutted in its entirety. As the presumption of soundness is rebutted, the second element of service connection is not met and entitlement to service connection based direct theories of entitlement is not warranted. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

The Board also acknowledges the Veteran's contention that his hypertension is secondary to his service-connected PTSD. However, there is no indication in the evidence of record of a relationship between the Veteran's hypertension and service-connected PTSD. The Veteran's contention that his hypertension is secondary to his service-connected PTSD, are the Veteran's own general conclusory statements, which do not meet the low threshold of an indication that the claimed disability is due to service. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Thus, VA's duty to provide an opinion concerning this theory of entitlement is not triggered.

Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for hypertension is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

4. Service connection for a back condition.

The Veteran is seeking service connection for a back condition. The Veteran asserts he has back problems due to duties associated with his MOS of "tanker." See March 1994 Claim Form. He contends that he has a back condition from climbing in and out of a tank for two years. See February 2014 Veteran Statement.

The Board finds the Veteran has a current disability, when reasonable doubt is resolved in his favor. In this regard, the Board acknowledges that the Veteran is unable to appear for a VA examination due to his incarceration. However, the Board will assume that for the purposes of this decision the Veteran is diagnosed with a back condition.

The Board finds that the evidence of record establishes the occurrence of an in-service event or injury, when reasonable doubt is resolved in the Veteran's favor. In this regard, the Veteran's DD 214 concerning his first period of service from November 1990 to September 1992 reflects that his MOS was Abrams Armor Crew. The Board finds the Veteran's account of this experiencing some back pain as associated with climbing in and out of a tank to be credible and consistent with the circumstances of his service. See 38 U.S.C. § 1154(a). In addition, an STR dated in September 1991 reflects that the Veteran reported back pain after falling off a bike. Accordingly, evidence of record establishes the occurrence of an in-service event or injury, when reasonable doubt is resolved in the Veteran's favor.

Thus, the question becomes whether there is a nexus between
In this regard, the Veteran's DD 214 concerning his first period of service from November 1990 to September 1992 reflects that his MOS was Abrams Armor Crew. The Board finds the Veteran's account of this experiencing some back pain as associated with climbing in and out of a tank to be credible and consistent with the circumstances of his service. See 38 U.S.C. § 1154(a). In addition, an STR dated in September 1991 reflects that the Veteran reported back pain after falling off a bike. Accordingly, evidence of record establishes the occurrence of an in-service event or injury, when reasonable doubt is resolved in the Veteran's favor.

Thus, the question becomes whether there is a nexus between the Veteran's back condition and back pain during service. Concerning this question, the evidence of record weighs against the claim.

The examiner who provided a VA opinion in April 2024 determined that it is less likely than not that the Veteran's back condition was incurred in or caused by the claimed in service event. The examiner explained that he reviewed the file and found no record of a chronic or recurrent back problem beginning during service. He acknowledged that the Veteran's STRs include one notation of back pain in September 1991, however, back pain is not noted chronically thereafter or in the immediate post separation period. The examiner also noted that the Veteran denied recurrent back pain at the time of his April 1992 separation examination. The examiner explained that a nexus to service cannot be made due to the missing elements of origin and chronicity of the current condition, as a disability which began during service or was caused by some event during service must be considered chronic for a nexus to be established. He explained that although an acute back condition is noted in the Veteran's STRs, no permanent residual or chronic disability is reflected in the evidence.

The Board acknowledges the Veteran's contention that his back condition is related to service. However, this is a complex medical question outside the competence of a non-medical expert to determine whether such a cause-and-effect relationship exists in this particular case. Thus, this nexus question requires expert consideration and cannot be considered within the competence of a non-expert lay witness. As an individual without medical training, the Veteran has not established the competence needed to rebut the expert medical opinions of record. See Fountain, 27 Vet. App. at 274-75; Monzingo, 26 Vet. App. at 105-06. As such, his opinion is not adequate to rebut the examiners' opinions as to the etiology of the claimed condition, nor is it otherwise sufficiently probative to be considered competent evidence tending to increase the likelihood of a positive nexus between service and a visual impairment, and an opinion by a qualified medical expert is required to decide the claim.

Consequently, the Board gives more probative weight to the VA examiner's opinion. The Board finds VA examiner's opinion clear and unequivocal and is based on the relevant information, including the Veteran's statements, STRs, post-service records, and relevant medical research. Moreover, the examiner's explanations are logical and follow from the facts and information given. See Monzingo, 26 Vet. App. at 105-06; Nieves-Rodriguez, 22 Vet. App. at 304.

The Board acknowledges the opinion relies on the absence of complaints or treatment for a back condition after the September 1991 complaint. The Board may weigh the absence of contemporary medical evidence against a claimant's lay statements. Fountain, 27 Vet. App. at 272; Buchanan v. Nicholson, 451 F.3d 1331, 36-37 (Fed. Cir. 2006). However, in order to do so, the Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation. Horn, 25 Vet. App. at 239. The absence of a record of an event which would ordinarily have been recorded gives rise to a legitimate negative inference that the event did not occur. AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013). In this case, the Board notes that the Veteran affirmatively denied that he experienced any symptomology related to his back after the 1991 report of back pain. For example, the Veteran denied recurrent back pain at the time of his separation examination in April 1992; he denied back pain at the time of his reenlistment examination in May 2005; he denied back pain at the time of an October 2007 post deployment health assessment; he also denied joint pain at the time of a March 2009 medical assessment. In addition, at
not occur. AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013). In this case, the Board notes that the Veteran affirmatively denied that he experienced any symptomology related to his back after the 1991 report of back pain. For example, the Veteran denied recurrent back pain at the time of his separation examination in April 1992; he denied back pain at the time of his reenlistment examination in May 2005; he denied back pain at the time of an October 2007 post deployment health assessment; he also denied joint pain at the time of a March 2009 medical assessment. In addition, at the time of an August 2007 health assessment, the Veteran reported that he did not suffer from any injury or illness while on active duty for which he did not seek medical care. Thus, the absence of evidence is negative evidence in this case as the evidentiary foundation for finding such has been established.

Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for a back condition is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

RYAN T. KESSEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Gray, Elissa A.

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.

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