Citation Nr: 1010683 Decision Date: 03/22/10 Archive Date: 03/31/10 DOCKET NO. 08-14 548 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a disability manifested by vision loss. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Katie Molter, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to February 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision in which the RO, in pertinent part, denied the Veteran's claim. The Veteran perfected a timely appeal. The Veteran testified at an RO hearing in January 2009 and at a Board hearing in January 2010. Transcripts of those hearings have been reviewed and associated with the claims file. FINDINGS OF FACT 1. A disability manifested by vision loss was not noted in service or within one year after service; and although post- service medical records show a diagnosis of ischemic central retinal vein occlusion, resulting in vision loss, there is no competent evidence of a medical relationship between any such disability and the Veteran's military service. 2. At the January 15, 2009, Decision Review hearing, the Veteran expressed his desire to withdraw from appellate review the issue of whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for hypertension. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a disability manifested by vision loss are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 3.310 (2009). 2. The criteria for a withdrawal of the Veteran's substantive appeal on the issue of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hypertension are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.204(b), (c) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I.. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (Apr. 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). In this appeal, a June 2006 pre-rating letter provided notice to the Veteran regarding what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and that he should send the information describing additional evidence or the evidence itself to the VA. The letter also provided notice as to how disability ratings and effective dates are assigned (if service connection is granted), and the type of evidence that impacts these types of determinations, consistent with Dingess. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all available records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of the Veteran's service treatment records, VA treatment records, and private treatment records. Also of record and considered in connection with the appeal is the testimony provided by the Veteran at his two hearings. The Board notes that during the January 2010 Board hearing, the Veteran alleged that there may service treatment records missing because there are only two records which detail his head injury. However, the claims file contains four volumes of service treatment records and there is no indication that any records are missing. Considering the claim for service connection for vision loss, in light of the record and the governing legal authority, the Board finds that the claim must be denied. II. Analysis A. Vision Loss Claim In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. See 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Service connection will also be presumed for certain chronic diseases if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has alleged that his current vision loss is a result of a head injury that he sustained while on active duty. Service treatment records show that the Veteran walked into the leading edge of the wing on an airplane. The Veteran complained of pain under the left eye. The Veteran was diagnosed with soft tissue trauma. No abnormal vision loss or injury to the eyes was noted on his separation examination. VA treatment records show that the Veteran was seen at the Optometry clinic for eye glasses adjustment and post operative refraction examination. No visual or ocular complaints were noted. At the January 2010 Board hearing, the Veteran testified that an aneurism and detached retina were caused by a head injury the Veteran sustained in service and that the detached retina caused the Veteran's current vision loss. Private treatment records show that the Veteran was treated for a retinal tear/detachment of the left eye in 1999. In September 2004 he was diagnosed with a central retinal vein occlusion of the left eye which was treated lasers twice in 2004. Treatment records show that the Veteran complained of occasional flashing lights in each eye and reported a history of ocular migraines. In February 2009 the Veteran was afforded a VA examination. The Veteran was diagnosed with (1) ischemic central retinal vein occlusion in the left eye: cause of decreased vision and loss of depth perception in the left eye. The examiner opined that this was not secondary to trauma. (2) Status post retinal tear/detachment repair of the left eye: no functional effect ad not the cause of (1). The examiner opined that it was possible that the retinal tear detachment was related or secondary to the history of trauma but it did not cause the vein occlusion which is the reason for his vision loss in the left eye. The examiner noted that the retinal tear/detachment was not noted at an in-service eye examination in 1990. (3) Mild cataracts in each eye: no functional effect and not secondary to trauma. The examiner noted in his examination report that he had reviewed the entire claims file, including all private and VA treatment records. Finally, the examiner opined that the Veteran's vision loss was not secondary to vein occlusion as this was not caused by trauma. In order to establish a service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In this case there is evidence of a current disability, the February 2009 VA examiner diagnosed the Veteran with ischemic central retinal vein occlusion in the left eye. In addition, there is both medical and lay evidence of an in-service injury to the Veteran's left eye. However, there is no medical evidence of a nexus between the claimed in-service disease or injury and the current disability. The only medical nexus evidence of record is a negative opinion which was offered by the February 2009 VA examiner who found his current condition to not be caused by or as a result of his left eye injury during his military service. No other competent medical evidence has been offered to establish a nexus between the Veteran's service and his current condition. See 38 C.F.R. § 3.159(a)(1). The Board finds that the balance of the medical evidence of record does not support service connection for vision loss. Currently, the only evidence of record supporting the Veteran's claim is his own lay opinion. The Veteran, however, has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to medical causation. To the extent that the Veteran himself has related his current symptoms to service, the Board notes that a layperson is generally not deemed competent to opine on a matter that requires medical knowledge, such as a determination of etiology. Accordingly, his lay opinion does not constitute competent medical evidence and lacks probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd, 142 F.3d 1434 (Fed. Cir. 1988); YT v. Brown, 9 Vet. App. 195, 201 (1996). For these reasons, the claim fails to satisfy the medical nexus requirement. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310(a),(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran has alleged that his vision loss was secondary to a head injury. However, the Veteran's claim for service connection for a head injury was denied in an April 2008 rating decision and service connection has not been established for a head injury, therefore, there can be no claim for a disability manifested by vision loss on a secondary basis. Overall, the preponderance of the evidence is against entitlement to service connection for a disability manifested by vision loss. In reaching these determinations, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Petition to Reopen A veteran may withdraw his or her appeal in writing or on the record at a hearing at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204 (2009). When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. §§ 20.101, 20.202 (2009). The record reflects that the Veteran perfected a timely appeal of the October 2006 rating decision that continued the denial of service connection for hypertension because the evidence submitted was not new and material. Thereafter, at the January 15, 2009, Decision Review hearing, the Veteran expressed his desire, on the record, to withdraw this claim from appellate review. The Board finds that this statement qualifies as a valid withdrawal of the issue of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hypertension. See 38 C.F.R. § 20.204 (b). In view of the Veteran's expressed desires, the Board concludes that further action with regard to this issue is not appropriate. The Board does not have jurisdiction over this withdrawn claim. As such, the issue is dismissed. ORDER Entitlement to service connection for a disability manifested by vision loss is denied. The appeal, concerning the issue of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hypertension, is dismissed. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs