Citation Nr: 1000331 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 04-16 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for bilateral eye disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his daughter ATTORNEY FOR THE BOARD B. Adams, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1948 to August 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In August 2007, the Veteran and his daughter testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. When this case previously was before the Board in January 2008, it was remanded for additional development. The case since has been returned to the Board for further appellate action. The Board granted a motion to advance this case on the docket due to the Veteran's advanced age in November 2009. See 38 C.F.R. § 20.900(c) (2009). FINDING OF FACT The Veteran's ocular histoplasmosis syndrome (OHS) is not etiologically related to service. CONCLUSION OF LAW Bilateral eye disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided with the notice required under the VCAA by letter mailed in September 2002, prior to the initial adjudication of the claim. Although he was not provided with notice regarding the disability-rating and effective-date elements of the claim until March 2008, after the initial adjudication of the claim, the Board has determined that there is no prejudice to the Veteran in proceeding with the appeal. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained below, the Board has determined that service connection for bilateral eye disability is not warranted. Consequently, no effective date or disability rating will be assigned, and the failure to provide earlier notice with respect to those elements of the claim is no more than harmless error. The Board notes that the Veteran's service treatment records are not of record and are presumed to have been destroyed by a fire at the National Personnel Records Center in 1973. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). In any event, as explained below, the Board has determined that the Veteran's testimony regarding his in-service illness is credible and has conducted its analysis of the claim accordingly. The Board also notes that pertinent post-service private treatment records dated in 1970 are unavailable. The RO's attempts to obtain these records were unsuccessful. In August 2009, the Veteran's representative notified VA that the Veteran's attempts to obtain the records also were unsuccessful. The Board notes that it also has found the Veteran's testimony regarding his treatment for bilateral eye disability by these private physicians to be credible and will analyze the claim accordingly. The record also reflects that all other available post- service medical evidence has been obtained and that the Veteran has been afforded an appropriate VA examination. The Board acknowledges that the Veteran and his representative believe the September 2009 VA examination was insufficient because the examiner did not address the fact that during service the Veteran was stationed in locations other than Libya and because he did not accurately describe the severity of the Veteran's bilateral eye disability. However, the Board notes that the Veteran and his representative have specifically argued that he contracted histoplasmosis in Libya and have pointed to his in-service hospitalization for treatment of an unknown virus in support of that argument. The examiner was asked to address this point in the January 2008 remand and complied with that request in the examination report. In addition, the examiner confirmed that the Veteran has OSH, and the extent of the Veteran's vision loss is not relevant to determining the etiology of that condition. The Board, therefore, finds that the VA examination report is adequate. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board also is unaware of any such outstanding evidence. Therefore, the Board is satisfied that originating agency has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. In sum, the Board is satisfied that any procedural errors in the originating agency's development and consideration of the claim were insignificant and non-prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A.§ § 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran contends that service connection is warranted for bilateral eye disability because it is related to an in- service illness. Specifically, he maintains that he developed OHS because he contracted histoplasmosis during service. He testified in August 2007 that he was hospitalized with a fever for two or three days while he was stationed in Tripoli, Libya, in 1950. He was told that he had contracted a virus, but no further diagnosis was rendered. His symptoms resolved, and he remained in good health until he began experiencing eye problems in 1970. He then sought treatment from a private eye specialist, who informed him that his bilateral eye disability had been caused by a virus. As noted, the Veteran's service treatment records were destroyed in a fire, and records from the private eye specialist who treated the Veteran in 1970 are unavailable. Nevertheless, the Board concluded in January 2008 that the Veteran's testimony regarding his in-service illness, subsequent symptomatology, and diagnosis is credible. The available post-service medical evidence includes VA treatment records dated from 2001 to 2008. Records dated in September 2001 and May 2002 confirm that the Veteran has OHS. A May 2005 record notes his report that he was diagnosed with the condition in 1970 and that he reported having spent time in Texas, Alabama, and northern Africa. With respect to medical nexus, the Veteran was afforded a VA examination in September 2009. The examiner reviewed the claims folder and performed a physical examination and clinical interview of the Veteran. He noted the Veteran's report that he had served in Tripoli, where he briefly was hospitalized with a virus and fever. He also noted the Veteran's report that after his release from active duty he had lived in California and England and later worked as a radar/gyroscope installer in various parts of the United States. In addition, the examiner indicated that the Veteran experienced no symptoms of bilateral eye disability until 1970, when he began experiencing light sensitivity and a private eye specialist informed him he had retinal damage from a virus that had become dormant. The examiner indicated that he had reviewed "a significant amount of research," including, "numerous studies, some of which dated back to the late 1950s" regarding histoplasmosis, the disease which causes OHS. These studies revealed that histoplasmosis is endemic to a large area of the United States that is limited by Arkansas and the Mississippi River to the west, the Great Lakes to the north, the Appalachians to the east, and the Gulf of Mexico to the south. The disease is found in smaller, but "still fairly significant," numbers in other parts of the United States and other parts of the world, such as southern Africa, but there is a "very low inciden[ce] of histoplasmosis" in Libya. The studies indicated that most of the estimated 50 million people infected with histoplasmosis are asymptomatic, although some people experience symptoms that can range from very mild cold or flu-like symptoms to more serious ones. The examiner noted that further symptoms "[v]ery often" do not manifest until decades after histoplasmosis is contracted. Based on his review of the claims folder, the examination results, and the available medical research, the examiner opined that there is not a 50 percent or greater chance that the Veteran contracted histoplasmosis during service. He also opined that it is more likely the Veteran contracted histoplasmosis during his time in the United States, where, "in some areas 80-85% of the population has been infected." He explained that the Veteran could have been infected with histoplasmosis at any time prior to his diagnosis in 1970 without manifesting any symptoms. He also explained that the virus and fever which the Veteran contracted during service, "could have been caused by any number of conditions and [are] certainly not specific for histoplasmosis." He stated that histoplasmosis studies revealed a "very high" incidence of the disease in the United States and the Great Lakes region, but not in Libya, and that occupations at high- risk for histoplasmosis include heating and air conditioning installers and roofers. He then noted that the Veteran had reported working as a radar/gyroscope installer in various parts of the United States, including Michigan in the Great Lakes region, after service. There is no contrary medical opinion of record. The Board acknowledges the Veteran's belief that his in-service hospitalization was for his initial infection with histoplasmosis. However, as a layperson without medical training, the Veteran is not qualified to opine regarding issues of medical diagnosis and causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Board also acknowledges that in several written statements the Veteran reported that the private eye specialist who diagnosed his OHS in 1970 indicated his histoplasmosis infection was of long duration. However, the Veteran has not alleged that the private specialist specifically related his infection to service, and there is no evidence to suggest that the period of long duration began during service, rather than at some point during the decades following the Veteran's release from active duty. The Board also notes that the VA examiner's opinion is consistent with the other evidence of record. An internet article submitted by the Veteran in support of his claim in March 2003 indicates that high incidences of histoplasmosis occur in the United States, including "large portions" of Alabama and Texas, and a May 2005 VA treatment record reflects the Veteran's report that he "extensively visited" Alabama and Texas. Finally, the Board also acknowledges the argument of the Veteran and his representative that he could have contracted histoplasmosis while stationed in Japan and other locations during service. However, the Veteran and his representative have specifically argued that he contracted the disease in Libya and have pointed to his in-service hospitalization to support that argument. They have not alleged that he experienced other symptoms indicative of possible infection while stationed in other locations. Moreover, infection with the fungus that causes histoplasmosis can be asymptomatic, and the research discussed by the VA examiner and submitted by the Veteran indicates that histoplasmosis is endemic in the United States, including areas in which the Veteran lived, visited, and worked. The Board notes that the VA examiner's opinion is consistent with the amount of time the Veteran spent in service in Libya and other foreign locations relative to the amount of time he spent after service in various parts of the United States. For these reasons, the Board has concluded that the preponderance of the evidence is against the Veteran's claim. Accordingly, service connection for bilateral eye disability is not warranted. ORDER Entitlement to service connection for bilateral eye disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs