Citation Nr: 0812132 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 06-38 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left eye disorder. 2. Entitlement to an increased disability rating for chronic conjunctivitis of the right eye, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Theresa M. Catino, Counsel INTRODUCTION The veteran served on active military duty from February 1967 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating action of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO denied the issues of entitlement to service connection for a left eye disorder and entitlement to a disability rating greater than 10 percent for the service-connected chronic conjunctivitis of the right eye. The issue of entitlement to a disability rating greater than 10 percent for the service-connected chronic conjunctivitis of the veteran's right eye is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. FINDING OF FACT Left corneal scarring and dystrophy has been associated with the veteran's active military service. CONCLUSION OF LAW Left corneal scarring and dystrophy was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties To Notify And To Assist The Veterans Claims Assistance Act of 2000 (VCAA), which was enacted on November 9, 2000, eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. Since the enactment of the law, the VCAA has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA and to those claims which were filed before the date of enactment but which were not yet final as of that date. The Board has considered this new legislation but finds that, given the favorable action taken herein with regard to the veteran's claim for service connection for a left eye disorder, no further discussion of the VCAA is required with respect to this issue. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2007). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2007). In the present case, service connection is in effect for chronic conjunctivitis of the veteran's right eye based upon findings of residuals of an in-service acid burn to his right eye. Currently, the veteran contends that the acid that spilled from batteries that he was attempting to fill during service went in, not only his right eye, but his left eye as well. According to his recent testimony, he sought in-service treatment for his left eye while he was aboard a medical ship. He maintains that he began receiving post-service medical care for his left eye within one year after his separation from service and that he has received regular left eye treatment since then. See, e.g., March 2008 hearing transcript (T.) at 3-5. In October 2006 statements, family members explained that they have observed the veteran experience burning sensation, pain, irritation, redness, and blurred vision in his left eye on numerous occasions. According to the service medical records, in October 1969, the veteran sought treatment for complaints of "burning and blurred vision" following a battery acid burn to his right eye. In November 1969, he expressed concern that he was using his left eye more than his right eye. The December 1969 separation examination noted that he had partial loss of vision in his right eye following the October 1969 acid burn to his right eye. The examiner diagnosed refractive error. The service medical records are otherwise negative with regard to the veteran's left eye. Post-service medical records, however, reflect the veteran's repeated complaints of left eye symptomatology as well as objective findings of left eye pathology, beginning soon after his discharge from active military duty. Although no left eye pathology was shown at a June 1970 VA examination, the veteran did complain of a burning sensation in both of his eyes as well as blurred vision at that time. A March 1975 VA eye examination provided a diagnosis of a left central corneal scar of mild density. Subsequent medical records reflect treatment for the following left eye pathology and diagnoses: chronic recurrent conjunctivitis in March 1982, mild residual irritation in April 1982, corneal scar in November 1982, diffuse macula opacity in the entire cornea (which was rather deep and occupied the corneal stroma) in February 1986, corneal scarring in June 2005, corneal dystrophy in October and November 2005, corneal scarring in February 2006, and corneal dystrophy manifested by chronic soreness in July 2006. Significantly, the claims folder contains multiple medical opinions associating the veteran's left eye disorder to his active military duty. At a June 2005 private outpatient treatment session, the veteran reported having sustained an acid injury to his left eye in 1969. The treating physician diagnosed corneal scarring secondary to the acid injury. Later, at a January 2006 VA outpatient treatment session, the veteran again reported having sustained an acid burn to his left eye in 1969. The VA treating physician provided an impression of status post acid burn of the left eye. Also, at the VA eye examination conducted in February 2006, the veteran described the acid, or chemical, splash injury to his left eye in 1969 as well as his subsequent complaints of poor vision; recurrent inflammation, irritation, and redness; sensitivity to air, pollen, and smoke; and burning sensation. Following a physical examination, the examiner diagnosed significant endothelial (cornea) scarring with some guttata of the left eye. Additionally, the examiner explained that, while this scarring is endothelial in nature, the disorder is "more likely than not . . . a residual of the original chemical injury to the left eye with damage to the cornea of the left eye." The Board acknowledges that these medical opinions associating the veteran's left corneal scarring with the in-service acid injury are predicated on his own statements of the purported accident. As the Board has discussed in this decision, the service medical records are negative for complaints of, treatment for, or findings of a left eye disability other than refractive error. Importantly, however, lay evidence (as, for example, the veteran's contentions in the present case) does not lack credibility simply because it is unaccompanied by contemporaneous medical evidence. Buchanon v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Of significant importance in the present case are the post-service medical records which reflect complaints, and objective evaluation findings, of left eye pathology since shortly after the veteran's discharge from active military duty. The continuity of symptomatology shown in these post-service reports supports the medical opinions associating the veteran's diagnosed left eye disorder with his active military duty. Based on this evidentiary posture, therefore, the Board finds that the benefit-of-the-doubt rule applies and that service connection for left corneal scarring and dystrophy is warranted. See 38 U.S.C.A. § 5107(b) & Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER Service connection for left corneal scarring and dystrophy is granted. REMAND At the March 2008 hearing, the veteran testified that he was scheduled to undergo an eye examination at the VA Outpatient Clinic (OPC) in New Port Richey, Florida one week later. T. at 7-8. A remand of his claim for an increased rating for the service-connected chronic conjunctivitis of his right eye is necessary to accord the AMC an opportunity to procure records of recent right eye treatment and evaluation that he may have been accorded at this medical facility. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (stipulating that VA is deemed to have constructive, if not actual, knowledge of records generated by VA). Further, the United States Court of Appeals for Veterans Claims (Court) recently set forth specific VCAA notification requirements for increased rating claims. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Because the VCAA notice letter furnished to the veteran in November 2005 in the present case does not comply with the Court's holding in Vazquez-Flores, a corrective VCAA notification letter should be issued to him on remand. Accordingly, further appellate consideration of the veteran's increased rating claim for his service-connected right eye disorder will be deferred and the issue is REMANDED for the following actions: 1. The AMC should provide the veteran with corrective VCAA notification that is in compliance with the requirements set forth in Vazquez-Flores v. Peak, 22 Vet. App. 37 (2008). Specifically, the notice should advise the veteran that, to substantiate his increased rating claim for the service-connected chronic conjunctivitis of his right eye, he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or an increase in severity of the disability as well as the effect that the worsening has on his employment and daily life. In addition, the letter should include examples of the types of medical and lay evidence that the veteran may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation- e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the right eye disability. Further, the veteran should be afforded a copy of the applicable criteria needed to establish an increased (higher) evaluation under all applicable Diagnostic Codes for rating the service-connected right eye disability. Also, the veteran should be advised that, if an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from 0 percent to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. 2. Copies of any additional records of right eye treatment and evaluation that the veteran has received at the New Port Richey VA OPC since February 2006 should be obtained and associated with the claims folder. 3. Following the completion of the above, the AMC should re-adjudicate the issue of entitlement to a disability rating greater than 10 percent for the service-connected chronic conjunctivitis of the right eye. If the decision remains in any way adverse to the veteran, he and his representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue remaining on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. The veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs