Citation Nr: 1124449	
Decision Date: 06/28/11    Archive Date: 07/06/11

DOCKET NO.  10-46 135	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for a bilateral eye disability, to include dry eye syndrome and pingueculae.


ATTORNEY FOR THE BOARD

F. Yankey, Counsel


INTRODUCTION

The Veteran served on active duty from March 1988 to July 2008.  This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which in pertinent part denied service connection for dry eye syndrome.

The May 2009 rating decision also denied entitlement to service connection for a low back disability and sinusitis.  The Veteran expressed disagreement with these decisions, but service connection was subsequently granted for a low back disability.  The RO issued a statement of the case with regard to the sinusitis issue, but in her substantive appeal the Veteran indicated that she was only appealing the eye issue, and the sinusitis issue was not certified for appellate consideration.  The Board will not further consider the sinusitis issue.


FINDING OF FACT

The Veteran has current pingueculae and dry eye syndrome that began in active military service.


CONCLUSION OF LAW

Pingueculae and dry eye syndrome were incurred in active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

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, 5126 (West 2002 & Supp. 2010)) defined VA's duty to assist a Veteran in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).

The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim.  Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).  In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating her claim.  

Legal Criteria

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a).

Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 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).

In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, No. 2009-7075 (Fed. Cir. Sept. 14, 2009).

"[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). 

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic."  When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).

Service connection 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) (2010).

Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010); 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 her currently diagnosed dry eye syndrome is related to her active military service.  Specifically, she claims that she was treated for dry eye syndrome (which she did not have prior to service) during military service and prescribed Refresh for artificial tears.  See November 2010 VA Form 9.

Service treatment records are negative for any complaints, treatment or diagnosis of dry eye syndrome.  However, they do show that during outpatient treatment in June 2008, the Veteran was noted to have a pinguecula in both eyes.  Outpatient treatment records from the VA Medical Center in Columbia, South Carolina dated from September 2008 to April 2009, are negative for treatment for dry eye syndrome, a pinguecula or any other eye disability.  

The Veteran was afforded a VA examination in May 2009.  She reported daily itching, burning, redness and foreign body sensation in both eyes, for approximately two to three years, with no known inciting event.  She also reported daily rubbing of her eyes for relief of her symptoms, with little success.  The Veteran also reported occasional blurring of vision when her eyes felt dry, which was only transiently helped with blinking and eye rubbing.  She denied decreased vision, distorted vision, diplopia, visual field defect, history of eye injury, eye swelling or eye surgery.  

She indicated that she was using Refresh artificial tears, which was only mildly helping to relieve her symptoms.  The Veteran was diagnosed with dry eye syndrome at that time, but the examiner did not give an opinion on the etiology of the disability.  However, the examiner did note that the Veteran had no underlying medical diagnoses which were contributing to her dry eyes, specifically indicating that she carried no diagnosis of lupus, rheumatoid arthritis, Sjorgen disease or other autoimmune disease, and that she was not taking any suspicious medications such as antidepressants, antihistamines or beta-blockers.

An addendum to the VA examination was provided by a different examiner in March 2010.  The examiner noted that the Veteran was diagnosed as having pinguecula in June 2008 and with dry eye syndrome in May 2009.  The examiner opined that based on his review of the Veteran's claims file and examination findings, the Veteran's dry eye syndrome and pinguecula were less likely than not related to her military service.  

The examiner's rationale was that dry eye syndrome is very common, and that as noted during her previous examination, the Veteran did not have any autoimmune diseases or any other underlying diagnoses of medical conditions that would contribute to her dry eye syndrome.  The examiner opined that it was much more likely that the Veteran just recently developed dry eye syndrome and that it was not related to her military service.  

The examiner also opined that it was less likely than not that the Veteran's pingueculae was related to her military service.  His rationale was that if the Veteran had pinguecula both nasally and temporally in both eyes, then it was possible to conclude that maybe she had a lot of sun exposure during service, which could be the reason why she had the pingueculae, but as there was only a single pinguecula in one eye noted, it was less likely that it developed as a result of chronic sun exposure during service.  

The evidence clearly documents current eye disabilities diagnosed as dry eye syndrome on the May 2009 examination.  The March 2010 addendum seems to find current pinguecula.

The service treatment records document pinguecula in both eyes and the Veteran has provide competent and credible reports of dry eye symptoms beginning in service.

The VA examiners have provided negative opinions as to a nexus between the current disabilities and service.  These opinions do not account for the Veteran's reports of a continuity of symptoms or the fact that pinguecula were initially documented in both eyes during service.  The most recent examiner seems to have imposed an additional requirement that a disability that began in service had to actually be caused by some incident of military duty.  These opinions are therefore of no probative value.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that a medical opinion that fails to take into account a Veteran's reports is inadequate).

The weight of the evidence is to the effect that the current dry eye syndrome and pingueculae had their onset in service.  Accordingly, service connection is granted.


ORDER

Service connection for an eye disability, namely bilateral pingueculae and dry eye syndrome, is granted.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs