Citation Nr: 1120791 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 08-06 669A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of an eye injury, to include retained steel splinters in the retina. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active service from March 1953 to March 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2007 decision of the Department of Veterans Affairs (VA), Regional Office (RO), located in St. Petersburg, Florida which denied service connection for residuals of an eye injury. On a substantive appeal form received in March 2008, the Veteran requested a travel board hearing to be held at his local RO. In July 2008, he indicated that he would also accept a video-conference hearing. A travel Board hearing was scheduled for August 2009, for which the Veteran failed to appear without providing any reason or request for rescheduling. The case, therefore, will be processed as though the request for a hearing had been withdrawn. See 38 C.F.R. § 20.704. This case was previously before the Board in October 2009 at which time the service connection claim for residuals of an eye injury was remanded. A review of the file reflects that there has been substantial compliance with the actions requested in that Remand and the case has returned to the Board for appellate consideration. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The evidence of record does not show that the Veteran suffers from any currently manifested eye disability which is etiologically related to his period of honorable active service or any incident sustained therein, to include an eye injury. CONCLUSION OF LAW The criteria for a grant of service connection for residuals of an eye injury, to include retained steel splinters in the retina, have not been met. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements) The Board finds that with respect to the Veteran's service connection claim, the VCAA duty to notify was satisfied by letters sent to the Veteran in February 2007 and October 2009. The letters addressed all required notice elements and were sent prior and subsequent to the initial unfavorable decision issued by the agency of original jurisdiction (AOJ) in April 2007. Further, in Dingess v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the Veteran with notice of what evidence not previously provided will help substantiate the claim. 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the Veteran of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. This specific notice was provided to the Veteran in February 2007 and October 2009. Thereafter, the RO readjudicated the claim in a supplemental statement of the case issued in October 2010. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Under the VCAA, VA also has a duty to assist the Veteran in the development of a claim. This includes assisting the Veteran in procuring service treatment records (STRs) and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here the file contains the Veteran's STRs, and post- service VA medical records dated from 2004 forward. A VA examination of the eyes was conducted August 2010. Neither the Veteran nor his representative has argued that the 2010 VA examination was in any way inadequate. In addition, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. In this regard, VA attempted to procure records from the Brooklyn Navy Yard Dispensary (BNYD), but was unable to obtain any such records; a fact documented for the file in a formal finding to this effect dated in September 2010. The Board finds that as to the claim being decided herein on appeal, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Factual Background The Veteran served with the United States Navy with a primary MOS of Radio Operator. The Veteran filed a service connection claim for residuals of an eye injury in January 2007, describing the condition as steel splinters in the eyes and indicating that he had been treated for this condition by VA in 2004. In a statement attached to the application, the Veteran explained that he sustained an eye injury in the spring of 1953, while on active duty aboard the USS Snyder. He believed that the injury occurred between April 1 and June 30, 1953. He indicated that he was performing a paint grinding operation when foreign matter became lodged in his eye. It was noted that he had gone to sick bay and was referred to the dispensary at the Brooklyn Navy Yard, where a captain removed a large metal chip from the retina by cutting it out. The doctor completed the operation, bandaged the eye, and directed the Veteran to wear an eye patch for several weeks; the Veteran indicated that for a short time after removing the eye patch he experienced blurred vision. The Veteran indicated that full vision was restored, but noted that the matter of the eye injury had come up in 2004 or 2005, when he had been scheduled by VA medical center (VAMC) in West Palm Beach (WPB) for magnetic resonance imaging (MRI) studies. He indicated that a computed tomography (CT) scan was performed which revealed retained metal in the eye and the MRI was cancelled as it would explain that this could harm the eye. A review of the STRs fails to disclose any reference to or documentation of an eye injury or treatment in service. The March 1955 separation examination report reflects that clinical evaluation of the eyes was normal, as was ophthalmoscopic evaluation, and that vision was 20/20. Although specifically requested by VA in October 2009, no records were available from the BNYD and the file contains a formal finding of unavailability to that effect, dated in September 2010. However, the Board notes that the STRs included some entries from the BNYD which did not relate to the eye claim at issue. Records dated from the VAMC in WPB dated from 2004 forward are on file. A December 2004 entry indicates that an attempt to conduct an MRI failed twice due to the size of the patient. A stand-up MRI was scheduled for December 9, 2004, but apparently was not done at that time due to reasons totally unrelated to the eye (leg weakness). A record dated in December 10, 2004, indicates that an MRI was not done at that time because metal was found in the Veteran's eye. An entry dated on December 11, 2004 indicates that MRI studies were not conducted due to a history of metal shards in the eyes status post surgical intervention in the distant past. A December 13, 2004 record reflects that MRI studies were "impossible." A record dated in December 16, 2004, indicated that the Veteran was able to undergo a CT scan (for studies relating to back problems). A VA record dated in May 2006 reflects that the Veteran underwent a diabetic retinopathy evaluation which revealed no visible diabetic retinopathy or macular edema, bilaterally. Vision was assessed as 20/40 (right ) and 20/30-2 (left). A past ocular history of seeing black and white floaters and paint chip removal from one eye was provided by the Veteran. An August 2007 eye examination report reflects that the Veteran gave a history of a metallic foreign body in the right eye in service. Clinical examination did not reveal any retained foreign matter in the eye or any residuals thereof. Early cataracts bilaterally, causing slight reduction in vision; and compound hypermetropic astigmatism(CHA)/presbyopia, bilaterally; were diagnosed. In June 2009, the Veteran underwent an annual eye examination which revealed: refractive error, bilaterally; early cataracts bilaterally; and compound hypermetropic astigmatism/presbyopia, bilaterally. In August 2010, the Veteran underwent a VA examination conducted by an ophthalmic surgeon. The report reflects review of the claims folder. The Veteran gave a history of a foreign body in the right eye incurred in service. Examination revealed no evidence of visible metallic foreign body was shown in the area of the right eye and there was no visible evidence of any post foreign body removal scarring. Corneal topography was normal and there was no indication of eye pain. The impressions included: senile cataracts of both eye; mild dry age-related macular degeneration (AMD); and suspected glaucoma. The examiner opined that decreased best corrected visual acuity of the right eye was most likely due to age-related cataract, mild AMD and mild epiretinal membrane (ERM). The examiner reiterated that no visible ocular foreign body was shown on either August 2 or 5, 2010, and recommended that the Veteran undergo an evaluation by an orbital specialist, should any further testing be sought relating to the foreign body. Analysis The Veteran maintains that service connection is warranted for residuals of an eye injury, reportedly sustained during service in the spring of 1953, while performing a paint grinding operation which resulted in foreign matter being caught in the eye. The Veteran now seeks service connection for an eye disorder, to include retained metal fragments in his eye and any residuals attributable thereto. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. 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). Service connection may also 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant 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); 38 C.F.R. §§ 3.102, 4.3 (2010). 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 C.F.R. § 3.102 (West 2002). In order to establish service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) 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, arguably Hickson element (1), evidence of current eye disability is shown. The file does contain various currently diagnosed/manifested eye disorders which include: cataracts, possible glaucoma, and evidence of decreased visual acuity, as shown by clinical records dated from 2004 forward, and eye evaluations conducted by VA between 2006 and 2010. However, as will be explained herein, none of the currently diagnosed/manifested eye conditions is attributable to the Veteran's period of service or any incident sustained therein, to include an eye injury. With respect to service incurrence - the STRs, to include the March 1955 separation examination report - fail to document any eye injury/trauma, or any complaints, findings or diagnosis relating to the eyes. The Veteran has provided a lay account of an incident which occurred in 1953, reporting that during that year, foreign matter became lodged in his right eye as a result of his performing a paint grinding operation, requiring treatment in service. While this injury was not documented in the STRs, the Board has no reason to discredit the Veteran's lay account of this incident. The Veteran is competent to describe such an event and his statements to this effect are considered credible. Barr v. Nicholson, 21 Vet. App. 303 (2007). Even having established that the Veteran sustained an eye injury/trauma in service, the Board reiterates that an injury sustained in service is not, in and of itself, a disability subject to service connection under VA regulations. As provided under 38 C.F.R. § 3.303(b), there must be a showing of chronic disability resulting from that injury. The Veteran has specifically explained that the basis for even filing the claim was simply because of findings made by VA in 2004, to the effect that there might be some retained metallic matter in the eye. The Board notes that VA clinical evaluations of the eyes conducted between 2006 and 2010 failed to include any findings of retained metallic particles in either eye. However, as stated by the Veteran, VA clinical records dated in December 2004, do include a notation that an MRI could not be conducted due to indications of metal in the Veteran's eye. It is not clear whether this finding was based on a history provided by the Veteran or based on actual clinical evidence reflecting the presence of retained metallic matter in the eye. But the fact remains that the medical records on file do not appear to include clinical indications supporting this finding. When evaluated by VA in August 2010, the ophthalmic surgeon who conducted that examination made a specific finding that no visible ocular foreign body was shown. Even assuming that there is actually some retained metallic matter in the Veteran's eye, this in and of itself is not a disability. The critical issue in this case is whether the injury, to include any retained metallic material which may have resulted from it, is productive of any chronic eye disability. The requirement of an evidentiary showing of such an etiological relationship has been repeatedly reaffirmed by the U.S. Court of Appeals for the Federal Circuit, which has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between the veteran's service and the disability claimed. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Essentially, this is the third Hickson element. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Hickson element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Brown, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in- service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The Board notes that even if an in-service eye injury was productive of retained material in the eye, the March 1955 separation examination revealed no clinical disability of the eye, normal ophthalmoscopic evaluation, and vision of 20/20. This examination report is highly probative as to the Veteran's condition at the time of his release from active duty, as it was generated with the specific purpose of ascertaining the Veteran's then-physical condition. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Significantly, there has been no indication of any chronic and/or continuous eye symptomatology since service, nor does the Veteran even so maintain. In this case, there is a large gap in evidence from approximately April 1955 until 2004, during which time it appears that the Veteran received no treatment for any symptoms relating to the eye, and no eye disorder was diagnosed. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service, is probative evidence against the claim). Essentially, aside from the mere presence of retained metallic material, the Veteran has not identified any chronic eye impairment which he believes is attributable to the in-service eye injury. In turn, retained metallic material in the eye, even if currently manifested, has not been productive of any eye disability, functional impairment or even pain, according to the clinical records. In this regard, none of the currently diagnosed eye disorders, nor the currently manifested loss of vision, has been in any way etiologically linked to the Veteran's period of service, an eye injury sustained therein, or to retained metallic matter in the eye. When examined by VA in 2010, the impressions included: senile cataracts of both eye; mild dry age-related macular degeneration (AMD); and suspected glaucoma. The examiner opined that decreased best corrected visual acuity of the right eye was most likely due to age-related cataract, mild AMD and mild epiretinal membrane (ERM). Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). As this opinion was made based on full review of the claims file, comprehensive clinical evaluation of the Veteran, and consideration of his lay history and symptoms, this opinion is found to carry significant weight. In addition, the file contains no professional medical opinion to the contrary and the Veteran has not provided any competent medical evidence to diminish its significant probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). There was no indication in the 2010 VA examination report, or in any of the VA examinations and clinical records on file dated from 2004 forward, that any clinical manifestations of the eye or diagnosed eye disorders are in any way related to the eye injury sustained in service, to include possible retained metallic matter in the eye related to that injury. In fact, the 2010 VA examination report indicated that the eyes are not even painful, nor has the Veteran so maintained. The Board has considered the Veteran's general lay assertions to the effect that he has a currently manifested eye disorder which is attributable to an eye injury in service. While the Veteran is generally considered competent to report symptoms (although absent in this case); a lay person such as the Veteran is not competent to offer an opinion on complex medical questions, such as rendering a diagnosis or offering an opinion as to the underlying etiology of his claimed disability; essentially it is beyond the Veteran's competency to do so. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Court has held that a condition or injury occurred in-service alone is not enough to warrant service connection; there must be a current disability resulting from that condition or injury. See Chelte v. Brown, 10 Vet. App. 268 (1997). No such evidence has been presented in this case and as such the claim fails. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The benefit sought on appeal is therefore denied. ORDER Service connection for residuals of an eye injury, to include retained steel splinters in the retina, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs