Citation Nr: 1209855 Decision Date: 03/15/12 Archive Date: 03/28/12 DOCKET NO. 07-24 087A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a left eye disorder. 2. Entitlement to service connection for asthma. ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from June 20, 1979 to October 17, 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied the benefits sought. Notably, regarding the asthma service connection claim, the present claim comes before the Board on appeal from an August 2006 rating decision. In that decision the RO declined to reopen a claim for service connection for asthma on the basis that new and material evidence had not been submitted subsequent to the last prior final denial of the claim. The August 2006 determination was based on the finding of the RO that the Veteran did not initiate an appeal from a prior rating decision of February 1993 denying service connection for asthma; and therefore that decision was final and new and material evidence was required to reopen the claim. If new and material evidence, however, was received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board without consideration in that decision in accordance with the provisions of § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the relevant period to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Muehl v. West, 13 Vet. App. 159, 161 (1999). In this case, the RO received medical evidence within one year of the February 1993 rating decision that previously denied the claim for service connection for asthma. In April 1993, the RO received the report of a VA examination in January 1993, which contains evidence pertinent to the claimed asthma condition. Upon reflection, in light of Bond, the Board therefore concludes that the February 1993 decision has not become final and the Board has thus characterized the issue as stated on the title page. In October 2010 the Board remanded the case for further development and to provide appropriate notice to the Veteran with respect to one claim. The claim of entitlement to service connection for asthma is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the competent evidence is against a finding that a left eye cataract disorder is related to service, and the competent medical evidence does not show the presence of any other vision disorder other than refractive error impairment of myopia. CONCLUSION OF LAW A left eye disorder was not incurred in or aggravated during military service; and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 4.9 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim and that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Regarding the left eye claim decided below, VA's duty to notify was satisfied by way of several letters sent between January 2004 and November 2010, which fully addressed the notice elements. Specifically, such letters in combination informed the Veteran of what evidence was required to substantiate her service connection claim and of her and VA's respective duties for obtaining evidence. The RO has also provided adequate notice of how disability ratings and effective dates are assigned. VA has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011). The Board finds that all necessary development has been accomplished and the Board will proceed with appellate review. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service treatment records, and VA and private treatment records. The Veteran was afforded a VA examination with an opinion regarding her left eye disorder claim in November 2010. The Board finds that such VA examination and opinion obtained are adequate to decide the issue as they are predicated on an interview with the Veteran; a review of the record, to include her service treatment records; and a physical examination with diagnostic testing. The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Therefore, the Board finds that findings from the examination report are adequate for the purposes of deciding the claim on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Significantly, neither the Veteran nor her 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. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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). II. Service Connection for Left Eye Disorder Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which she or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). To show a chronic disease in service requires a combination of manifestations sufficient to identify the disease, and sufficient observation to establish chronicity at the time. 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. See 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all of the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). There are a number of service treatment records associated with the Veteran's period of active service from June 20, 1979, to October 17, 1979; and thereafter while she was a member of the U.S. Army Reserve. During a May 1979 examination, the Veteran's vision without correction was 20/200 in the right eye and less than 20/400 in the left eye. Best corrected vision in both eyes was 20/20. The assessment was that the Veteran had defective vision. Service treatment records dated in June 1979 show that the Veteran was examined by optometry section. The provider noted there was no ocular pathology, trauma, surgery, or family history. Examination of the cornea, lids, and conjunctiva were within normal limits. Internal findings were within normal limits. With correction, the visual acuities were 20/30 bilaterally. The Veteran received eyewear prescription based on the evaluation. Service treatment records in April 1982 show that the Veteran was seen for eye complaints and the provider found three small abrasions over the pupil of the right eye. The assessment was abrasions of the right eye. During a follow-up visit that month the Veteran reported she still felt some irritation but it was much better. The provider noted there was eye irritation status post corneal abrasion. The assessment was corneal abrasion. Service records include a March 1983 report of medical history showing that the Veteran reported having no eye trouble. The report of a February 1987 report of medical examination on enlistment to the Army Reserve shows that the Veteran's vision without correction was recorded to be 20/70 in the right eye and 20/200 in the left eye. Best corrected vision in both eyes was 20/40. The assessment was that the Veteran had defective vision. The report of a September 1989 service examination records that visual acuity without correction was 20/70 bilaterally; and the best corrected visual acuity was 20/20 bilaterally. On examination of the eyes, the evaluation was normal. The report of a November 2010 VA examination contains a discussion of the Veteran's service treatment records pertaining to the medical history of her eyes and vision, essentially as discussed above. The Veteran reported an ocular history of a foreign body in both eyes in 1988 during military training. She reported she had a sharp sensation in both eyes, and her visual acuity was affected since then. On examination, uncorrected distance visual acuity was 20/70-1 in the right eye and 20/200-1 in the left eye. The best corrected distance visual acuity was 20/20 in both eyes. The best corrected near visual acuity was 20/20 in both eyes. Extra ocular muscle movements were full bilaterally; confrontation visual fields were full to finger counting bilaterally. The pupils were equal, round, and reactive to light without an afferent papillary defect. Slit-lamp examination revealed clear lids and lashes bilaterally; ocular melanosis in both eyes; clear cornea bilaterally; and quiet anterior chamber in both eyes. There was a Grade I nuclear sclerotic cataract in both eyes. The report contains diagnoses of (1) refractive error; (2) history of foreign body in both eyes with no secondary ocular manifestations of both eyes; and (3) mild cataracts with good visual acuity of both eyes. The examiner opined that it was not likely that any ocular pathology was related to the Veteran's service. In this regard she noted as rationale, that the mild cataracts did not pre-exist service and did not exist in service; and these lenticular changes appeared to be age-appropriate findings and did not impact visual acuity. The examiner also noted that examination of the anterior segment of the Veteran's eyes revealed no ocular manifestations and no corneal scarring in either eye, that could be associated with the reported history of trauma (foreign object) in both eyes. On review, the Board finds that the preponderance of the evidence is against a finding that any left eye disorder is related to service. First, with respect to the diagnoses of any present ocular disorder of the left eye, although the Veteran may have had a history of a foreign body in contact with the left eye as reported by the Veteran, the recent examination found no secondary ocular manifestations present. Second, as noted by the recent VA examiner, although the Veteran has bilateral mild cataracts, there is no evidence of these in service. Nor is there evidence of cataracts after service prior to the November 2011 VA examination. Consistent with that finding, the examiner at the November 2011 VA examination opined that the cataracts appeared to be age-appropriate, and were not likely related to service. Review of the remainder of the medical records on file fails to show any other diagnosis pertaining to a left eye disorder other than refractive error. Notably, refractive errors, are excluded, by regulation, from the definition of disease or injury for which veterans benefits are authorized if incurred or aggravated in service. 38 C.F.R. §§ 3.303(c), 4.9. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9. In summary, review of the claims file shows no competent medical evidence showing the presence of any left eye disorder other than refractive error and cataract, which were addressed above. The preponderance of the evidence is against the claim for service connection. Therefore, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left eye disorder, is denied. REMAND A remand is necessary for purposes of further development with respect to the claim of service connection for asthma for the reasons outlined below. Service treatment records include a May 1979 induction examination, which noted that the Veteran reported a history of sinusitis. However, the Report of Medical Examination reflects that the Veteran's lungs and chest were evaluated as normal and no respiratory disability was noted. In July 1979 the Veteran was seen for upper respiratory complaints including difficulty breathing. The impression was asthma, existing prior to service. Post-active service evidence includes an April 1982 service treatment record showing the Veteran had end expiratory wheezes, which the provider assessed as mini-bronchial spasm. A June 1985 treatment report contains an assessment of asthma. A February 1987 Army Reserve Enlistment Examination, in which the evaluation of the lungs and chest was abnormal, with a diagnosis of bronchial asthma. In light of the Veteran's contentions and the state of the record, the Board finds that a VA examination is necessary to adjudicate the claim of service connection for asthma. Review of the claims file reflects that the Veteran has not been afforded a VA examination that addresses whether there remains a present chronic asthma disorder, and if so, whether it is as likely as not that such asthma disorder is etiologically related to the Veteran's service. Therefore, following a thorough review of the entire claims folder, such examination should be accomplished on remand. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically in the claims files. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Since the claims file is being returned to the RO, the file should be updated to include VA treatment records compiled since the latest VA clinical records dated in September 2003. See 38 C.F.R. § 3.159(c)(2) (2010); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Any outstanding and relevant private treatment records should also be requested and any obtained should be associated with the claims file. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Take appropriate measures to obtain copies of any outstanding records of pertinent VA or private medical treatment. 2. Notify the Veteran that she may submit statements from her and others describing any continuity of respiratory symptoms since service associated with her claimed asthma condition. 3. Then schedule the Veteran for an appropriate examination to determine the nature, extent, onset and etiology of any asthma or asthma-like respiratory disorder. All indicated studies should be performed, and all findings should be reported in detail in the examination report. The claims files should be made available to and reviewed by the examiner. In offering any requested opinions, the examiner must specifically acknowledge and comment on the Veteran's competent reports of current symptoms and continuity of symptoms since service. The examiner should state the likelihood that any respiratory disability, to specifically include asthma if found to be present, existed prior to service. If the examiner concludes that a respiratory disability, to specifically include asthma, existed prior to service, the examiner should indicate that likelihood that the disability worsened during service. If the examiner diagnoses the Veteran as having a respiratory disability, to specifically include asthma, that did not pre-exist service, the examiner must opine as to whether it is at least as likely as not that the condition is related to or had its onset during service. In offering these opinions, the examiner should specifically acknowledge and comment on the Veteran's report of a continuity of symptoms since active duty service. The examiner should set forth a complete rationale for all findings and conclusions in a legible report. 4. Then the RO should readjudicate the appeal. If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the Veteran an opportunity to respond. Then the case should be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs