Citation Nr: 1237202 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 05-26 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a bilateral eye disorder, to include blindness of the left eye, amblyopia of the left eye, and bilateral cataracts, and to include as due to in-service herbicide exposure. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active military service from August 1947 to May 1950. This matter comes before the Board of Veterans' Appeal (BVA or Board) from a November 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee, which denied the benefit sought on appeal. The claim was denied by the Board in October 2007. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). By a January 2009 Order, the Court vacated and remanded the portion of the Board's October 2007 decision which denied service connection for cataracts, both eyes, and amblyopia, left eye. In June 2009 and again in May 2010, the claim was remanded by the Board to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. Upon reviewing the claims folder, in April 2012, the Board referred the claim to the Veterans Health Administration (VHA) for an advisory medical opinion. See 38 U.S.C.A. § 7109(a) (West 2002); 38 C.F.R. § 20.901 (2011); see also generally Wray v. Brown, 7 Vet. App. 488, 493 (1995). The advisory opinion was obtained in June 2012. The medical opinion is included in the claims folder for review. It is noted that the Veteran, along with his representative, was given the opportunity to provide any comments with respect to the medical opinion. Those comments have also been included in the claims folder for review. The RO certified this appeal to the Board in February 2012. Subsequently, additional evidence was added to the record. However, the Veteran waived his right to have the RO initially consider this evidence in a statement dated in August 2012. 38 C.F.R. §§ 20.800, 20.1304 (2011). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the Board finds that the presumption of soundness applies to the Veteran. 2. The Veteran's current bilateral eye disorder is not shown to be causally or etiologically related to his active military service, to include herbicide exposure. CONCLUSION OF LAW The criteria for service connection for a bilateral eye disorder, to include blindness of the left eye, amblyopia of the left eye, and bilateral cataracts, and to include as due to in-service herbicide exposure, have not been met. 38 U.S.C.A. §§ 1111, 1113, 1116, 1131, 1137, 1153, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.304, 3.306, 3.307, 3.326(a) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection The Veteran seeks service connection for a bilateral eye disorder, to include blindness of the left eye, amblyopia of the left eye, and bilateral cataracts, and to include as due to in-service herbicide exposure. The Veteran maintains that he was "disabled" from an eye disorder prior to his release from active duty in May 1950. He reports that his vision began to decrease at boot camp in 1947, and he is unsure when his vision stabilized. He also claims that he was treated for such disorder in November/December 1949 at the 28th General Hospital in Osaka, Japan. See VA Form 119, June 2004. A. Facts Notably, the Veteran's service treatment records (STRs) could not be located and are presumed destroyed in the 1973 fire at the National Personnel Records Center (NPRC). The Board is aware of its heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In this regard, the Board has previously directed the RO to obtain additional service-related records. See BVA Remands, June 2009 and May 2010. Unfortunately, treatment records from the 28th General Hospital in Osaka, Japan, and records from the Veteran's National Guard service, have also been deemed unavailable for review. See Memorandum From Military Department of Tennessee, May 2010, and Memorandum Re: Availability of Service Records, November 2009. The Board notes that the record does contain the Veteran's August 1947 enlistment examination and several morning reports. The August 1947 enlistment examination shows 20/20 vision bilaterally, but notes that he was previously rejected for military enlistment in November 1946 due to his "eyes." Morning reports for the period from May 1949 to January 1950 show that the Veteran reported to sick call for a "line of duty" complaint, but he was returned to duty without hospitalization. These records do not indicate the type of injury/illness for which the Veteran sought treatment. A search conducted for records from February 1950 to May 1950 produced no results. The Veteran's military service ended in May 1950. Post-service, in December 1989, the Veteran was first seen by a private physician for complaints of "drowning eyes." The Veteran was diagnosed with an early viral syndrome. At this appointment, the Veteran did not report that his eye disorder had been ongoing since his military discharge. A subsequent January 2002 private eye examination shows subjective complaints of poor left eye vision since childhood and a family history of cataracts. The pertinent diagnoses were refractive error, bilateral cataracts, and amblyopia of the left eye. In November 2002, he described itching of his eyes and vision changes. In April 2003, he reported that he had busted an eye vessel in his left eye, and in October of the same year, he was seen with complaints of blood in his left eye. A December 2004 private treatment note shows complaints of vision problems and "weak eyes." A January 2008 private treatment note is positive for "visual disturbances." In September 2011, the Veteran was afforded a VA eye examination. At the examination, the Veteran stated that his vision was fine when he entered the military service, and he was then not allowed to reenlist because of his vision problems. The Veteran was unsure as to the exact timeline for his vision loss, but indicated that his vision began decreasing after boot camp in 1947. Upon a physical examination of the Veteran and a review of the Veteran's claims file, the VA examiner diagnosed the Veteran with "blind NOS," and noted that the Veteran's problem was his left eye ("blind OS"). In June 2012, a VA medical opinion was obtained regarding the claim on appeal. This medical opinion will be discussed in detail below. In an August 2012 statement, the Veteran reported that he was provided his first pair of glasses by the United States Army. In a September 2012 statement and in an undated statement, the Veteran's daughter stated that the Veteran's eyes were damaged during his active military service. The family was aware of this damage, and it was discussed amongst the family. The daughter indicated that, for the length of her entire life, the Veteran has had the eye disorder, and therefore the bilateral eye disorder should be looked at as a "military thing." B. Analysis There are multiple legal theories of entitlement to service connection. Service connection can be established through presumptions, direct service connection, and chronicity or continuity of symptomotology. The Board will address each theory individually below. Laws and Regulations for Presumptive Service Connection The law and applicable regulatory provisions pertaining to Agent Orange exposure, expanded to include all herbicides used in Vietnam, provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). The presumption of service connection based on exposure to herbicides used in the Vietnam during the Vietnam era is not warranted for any disorder other than those for which the Secretary of VA has specifically determined that a presumption of service connection is warranted. 38 U.S.C.A. § 1116. However, notwithstanding the foregoing law and regulations pertaining to presumptive service connection, a Veteran is not precluded from establishing service connection for diseases not subject to presumptive service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Presumptive Service Connection Analysis The Veteran is not entitled to presumptive service connection for his bilateral eye disorder because his DD-214 Form does not document that the Veteran served in the Republic of Vietnam during his active military service. Instead, the Veteran served in Japan. Since the Veteran did not serve in Vietnam, he is not entitled to this presumption. Even if he were entitled to the presumptions under 38 C.F.R. § 3.309(e) (2011), the Board notes that the Veteran's eye disorder is not a disorder that VA has recognized as related to herbicide exposure. Thus, the Veteran is not entitled to presumptive service connection for his bilateral eye disorder. However, the Board will consider his claim that his current bilateral eye disorder is related to herbicide exposure on a direct basis. See Combee, 34 F.3d at 1043-44. In this regard, there is no evidence that the Veteran was exposed to herbicides during his active military service. Furthermore, there is no medical opinion or evidence linking the Veteran's current eye disorder to herbicide exposure during his active military service. The June 2012 VA physician, following a review of the Veteran's claims file, determined that, without knowing the specific chemical that the Veteran was exposed to, it was not possible to tell whether the claimed herbicide affected the Veteran's eyes. There are no medical opinions to the contrary in the claims file. The Veteran is certainly competent to testify as to his own symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). However, his testimony that his current eye problems are related to herbicide exposure in service, without the support of a medical opinion as to diagnosis and causation, is not sufficient evidence to grant his claim. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Thus, the Veteran's current bilateral eye disorder is not related to herbicide exposure during his active military service. The Veteran's claim cannot be granted under this theory of entitlement. 38 U.S.C.A. §§ 1113, 1116, 1137; 38 C.F.R. §§ 3.307, 3.309. Law and Regulations for a Pre-Existing Disorder Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for the active military service, except as to defects, infirmities, or disorders noted at the time of the military examination, acceptance, and enrollment. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A Veteran's reported history of the pre-service existence of a disease or injury does not constitute notation of such disease or injury, but is considered with all other evidence in determining if the disease or injury pre-existed the military service. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). A pre-existing injury or disease will be considered to have been aggravated by active military service where there is an increase in the disorder during such military service, unless there is a specific finding that the increase in the disorder is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disorder underwent an increase in severity during the military service. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the disorder. Aggravation may not be conceded where the disorder underwent no increase in severity during the military service on the basis of all the evidence in the record pertaining to the manifestations of the disorder prior to, during, and subsequent to the military service. 38 C.F.R. § 3.306(b). If a pre-existing disorder is "noted" on entering the military service, in accordance with 38 U.S.C.A. § 1153, the Veteran has the burden of showing an increase in the disorder during the military service. If the Veteran meets that burden and shows that an increase in the disorder occurred, then the burden shifts to the government to show that any increase was due to the natural progress of the disease. Compare 70 Fed. Reg. 23, 027-29 (May 4, 2005) (codified at 38 C.F.R. § 3.304(b)) with Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (holding, in part, that 38 C.F.R. § 3.304(b) is inconsistent with 38 U.S.C.A. § 1111 to the extent that it states that the presumption of soundness may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Pre-Existing Disorder Analysis The Board notes that the Veteran does not contend that his bilateral eye disorder pre-existed his active military service. However, the Board finds that it must address this initial question, since it is raised by the medical evidence. Specifically, the Veteran's August 1947 enlistment examination shows 20/20 vision bilaterally, but notes that he was previously rejected for military enlistment in November 1946 due to his "eyes." This evidence raises the issue of a possible pre-existing bilateral eye disorder. Accordingly, in June 2012, the Board sent the claims folder to a VA physician for an advisory medical opinion. In pertinent part, the physician determined that it is not at least as likely as not that the Veteran's current bilateral eye disorder pre-existed his entry into his period of active duty. The examiner reasoned that the Veteran's pre-enlistment vision, as documented on his enlistment examination, was 20/20 (normal) in each eye. The examiner also indicated that the Veteran most likely did not have amblyopia in his eyes at his military entry because of his normal vision. Thus, based on this medical opinion, the Board finds that there is no clear and unmistakable evidence demonstrating that the Veteran's bilateral eye disorder existed before his acceptance and enrollment into his active duty. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); see Paulson, 7 Vet. App. at 470. Thus, resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to the presumption of soundness. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.102. Consequently, the Board will address the Veteran's claim on a direct basis below. Laws and Regulations for Direct Service Connection To establish direct service connection, the record must contain: (1) medical evidence of a current disorder; (2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease; and, (3) medical evidence of a nexus between the current disorder and the in-service disease or injury. In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1131. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Direct Service Connection Analysis The Veteran seeks service connection for a bilateral eye disorder. As noted above, the first element of direct service connection requires medical evidence of a current disorder. Here, a current diagnosis has been established. As previously stated, in January 2002, a private physician diagnosed the Veteran with refractive error, bilateral cataracts, and amblyopia of the left eye. Additionally, on VA examination in September 2011, the Veteran was diagnosed with "blind NOS," and noted that the Veteran's problem was his left eye ("blind OS"). Thus, the Veteran has satisfied the first element of service connection. As stated above, the second element of direct service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. Here, the Veteran's available STRs are silent for documentation of a bilateral eye disorder. The records reveal no complaints or treatment related to the Veteran's eyes. Here though, the Veteran has stated that his vision began to diminish in service and he felt like he had "drowning eyes" in service. Thus, the second element of direct service connection is satisfied by the Veteran's lay statements. As previously mentioned, the third element of direct service connection requires medical evidence of a nexus between the current disorder and the in-service disease or injury. Here, the only medical nexus opinions of record are negative, or could not be made based on the available information. Specifically, on VA examination in September 2011, following a review of the claims file and a physical examination of the Veteran, the VA examiner noted that the Veteran's STRs were destroyed in the fire, and then determined that, "[b]ecause of this gap in the record I cannot say what has caused [the Veteran's] vision loss. If more data is found please send him back to me so that I can evaluate him again." The examiner provided no additional rationale for this opinion. Accordingly, in June 2012, the Board sent the claims folder to a VA physician for an advisory medical opinion. Following a review of the claims file, the physician determined that, based on the small amount of information in the medical record, it was not possible for him to make a decision on this case "without resorting to mere speculation." The physician stated that in his opinion, it could not be determined from the available information whether a specific in-service injury caused the Veteran's current eye problems. However, the physician then found that it was at least as likely as not that the Veteran's cataracts were related to the aging process. The June 2012 physician reasoned that cataracts are usually related to the aging process. The physician also reasoned that because of the lack of an eye examination before the Veteran enlisted in the military, it is not possible to tell whether there was anything wrong with his eyes in 1947 before he enlisted. Also, the physician pointed out that there was no eye examination performed soon after the Veteran left the military service; thus, it is not possible to know whether his military service affected his eyes. Regarding the blindness in the Veteran's left eye (as noted at the September 2011 VA examination), the physician reported that the Veteran's subjective loss of vision in his left eye cannot be explained by the objective findings recorded in his most recent eye examination. Thus, the physician found that the Veteran had an unexplained loss of vision in his left eye. The Board notes that the United States Court of Appeals for Veterans Claims (Court) recently held in Jones v. Shinseki, 23 Vet. App. 382, 389-91 (2010), that when a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate; instead, a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability. Id. at 389-90. The Jones Court further held that, "while VA has a duty to assist the Veteran by providing a medical examination in certain situations, that duty does not extend to requiring a VA physician to render an opinion beyond what may reasonably be concluded from the procurable medical evidence. Notwithstanding the duty to assist, it remains the claimant's responsibility to submit evidence to support his claim." Id. at 391. Here, the Board finds that the September 2011 and June 2012 VA physicians adequately explained the reasons for their inability to render a nexus opinion, and accordingly the Board does not find the medical opinions to be speculative. The September 2011 and June 2012 VA physicians reviewed the Veteran's entire claims file prior to providing their medical opinions. Both VA physicians acknowledged that the Veteran's STRs were unavailable, but both physicians also pointed to the lack of post-service medical evidence immediately following the Veteran's military discharge. The June 2012 VA physician also provided an alternative theory to address the etiology of the Veteran's current cataracts. Specifically, the June 2012 VA physician found that found that it was at least as likely as not that the Veteran's cataracts were related to the aging process. Further, the June 2012 VA physician considered and addressed the Veteran's lay statements in his medical opinion. Specifically, the physician considered the Veteran's reports of loss of vision in his left eye, but the physician determined, based on the evidence of record, that these complaints were subjective and were not supported by the objective evidence of record. Therefore, the Board does not find that the VA physicians were using speculation as a "substitute" when they were providing their medical opinion. The Board finds that the VA examiners considered all pertinent and available medical facts in forming their medical opinions. The Board finds that the September 2011 and June 2012 VA physicians adequately explained the reasons for their inability to render a nexus opinion, and accordingly the Board does not find the medical opinions to be speculative. Id. The Board is also aware of its heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, missing STRs, while indeed unfortunate, does not obviate the need for the Veteran to have medical nexus evidence supporting his claim (i.e., to etiologically link his currently alleged disorder to his active military service). See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)); see, too, Russo v. Brown, 9 Vet. App. 46 (1996). Cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999). In other words, there is no reverse presumption for granting the claim. Here, the Veteran has not presented, and the VA medical opinions have not provided, a medical nexus opinion connecting the Veteran's bilateral eye disorder to his active military service. The September 2011 and June 2012 VA physicians clearly reviewed all of the available evidence in the Veteran's claims folder. The VA physicians provided medical opinions that are supported by and consistent with the evidence of record. The June 2012 VA physician also provided an alternative theory to address the etiology of the Veteran's current cataracts. Specifically, the June 2012 VA physician found that it was at least as likely as not that the Veteran's cataracts were related to the aging process. Additionally, the June 2012 VA physician found that the Veteran's subjective loss of vision in his left eye could not be explained by the objective findings recorded in his most recent VA eye examination in September 2011. Thus, the physician found that the Veteran had an unexplained loss of vision in his left eye. The June 2012 VA physician could not attribute this unexplained vision loss to the Veteran's active military service, as the physician found that an eye examination was not conducted soon after the Veteran left the military service. The September 2011 VA examiner also could not attribute the Veteran's subjective vision loss in his left eye to his active military service because the physician found that there was gap in the medical treatment records. Further, the June 2012 VA physician found that the Veteran's refractive error and amblyopia of the left eye could not be attributed to the Veteran's active military service, as the physician found that an eye examination was not conducted soon after the Veteran left the military service, but noted amblyopia was not present in 1947 as a test from that period showed his vision to be 20/20; amblyopia was not present. There is no positive evidence to the contrary of these medical opinions in the claims file. The treatment records do not provide contrary evidence. For all of these reasons, and because the balance of the evidence is against the Veteran's claim, service connection for a bilateral eye disorder on a direct basis is not warranted. Laws and Regulations for Chronicity and Continuity of Symptomatology Service connection may be awarded for a "chronic" disorder when: (1) a chronic disorder manifests itself and is identified as such during the active military service (or within the presumption period under 38 C.F.R. § 3.307, and the Veteran presently has the same disorder); or (2) a disorder manifests itself during the active military service (or during the presumptive period), but is not identified until later, there is a showing of continuity of symptomatology after the military discharge, and medical evidence relates the symptomatology to the Veteran's present disorder. 38 C.F.R. § 3.303; see Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). For the showing of chronic disease during the active military service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including t he word "chronic." 38 C.F.R. § 3.303(b). If a chronic disease is shown during the active military service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). However, continuity of symptoms is required where a disorder is noted during the active military service, but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Chronicity and Continuity of Symptomatology Analysis The Veteran reports continuous vision loss since his active military service. However, the Veteran's contentions are not supported by the medical evidence of record. As stated above, the earliest pertinent post-service medical evidence associated with the claims file is dated from 1989, almost 40 years after the Veteran's military separation in 1950. Further, the available STRs do not show that the Veteran developed a chronic eye disorder during his active military service. This absence of evidence constitutes negative evidence tending to disprove the claim that the Veteran had an injury or disease in service, which resulted in a chronic eye disorder or persistent symptoms thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (holding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). The Board concludes that any eye problems the Veteran may have experienced in service were no more than acute and transitory as no chronic symptoms or problems were reported or found for many years. Thus, the Board finds that the medical evidence does not establish a "chronic disorder." 38 C.F.R. § 3.303. The Veteran's service connection claim cannot be granted on this theory of entitlement. In reaching this decision, the Board has considered the Veteran's arguments and his daughter's arguments in support of the claim. The Veteran contends that his bilateral eye disorder is directly related to his active military service, or, in the alternative, is related to herbicide exposure. In an August 2012 statement, the Veteran reported that he was provided his first pair of glasses by the United States Army. Additionally, in a September 2012 statement, the Veteran's daughter asserted that the Veteran's eyes were damaged from his military excursions. She stated that this fact was always acknowledged and spoken about in the family. In the September 2012 statement and in an additional undated statement, the daughter indicated that the Veteran has experienced eye problems for his entire life. The Board acknowledges that the Veteran and his daughter are competent, even as a layperson, to attest to factual matters of which they have first-hand knowledge, e.g., an injury during military service and vision loss. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), and in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a disorder when: (1) a layperson is competent to identify the medical disorder (noting that sometimes the layperson will be competent to identify the disorder where the disorder is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Id. The Board notes that the Veteran is competent to report his vision during his active military service, which resulted in his current bilateral eye disorder. The Veteran's daughter is also competent to describe her observations and conversations with her father regarding his vision loss. However, the Board must still weigh these lay statements against the medical evidence of record. See Layno v. Brown, 6 Vet. App. 465 (1994) (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")). In making this credibility determination, the Board does not find the Veteran's statements and his daughter's statements concerning the etiology of the Veteran's bilateral eye disorder to be credible. Specifically, the Veteran's available STRs make no reference to an eye injury, vision loss, and/or herbicide exposure. The Veteran also first reported eye problems in 1989, almost forty years after his separation from the active duty. At the 1989 treatment visit, the Veteran did not report that his current eye problems were due to herbicide exposure or an eye injury during his active military service. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996); see also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). For instance, in a medical evaluation for a urinary infection, performed in July 1989, the Veteran's head was described as normal and his nose, throat, and tongue were within normal limits. There was no mention made of an eye disorder of any kind. Similar findings were made upon examination in February 1990. Additionally, the Veteran reported that he felt week, stiff and that his eyes were drowning in December 1989. The diagnosis was early viral syndrome/gastroenteritis. Finally, the VA outpatient treatment note of November 2002 shows that the Veteran had just recently experience some vision changes. There is no mention that the Veteran had any eye disorder, including blindness in the left eye. These reports which lack any reference to blindness or an eye disability of a long standing nature refute the Veteran's and his daughter's statements that he has had a continuous eye disability since service. It is important to point out that the Board does not find that the Veteran's lay statements and the Veteran's daughters lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson, 581 F.3d at 1313, quoting Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Rather, these statements are found to be incredible because they are inconsistent with the evidence of record, which fails to show a bilateral eye disorder or herbicide exposure during his active military service. A bilateral eye disorder is not shown in the evidence of record until almost four decades after the Veteran's separation from the active duty in 1950. The medical opinions of record, as discussed above, also provide evidence against the credibility of the lay statements of record. For the reasons set forth above, the Board finds that the lay statements alleging that the Veteran's bilateral eye symptoms have been present since his active military service are not credible. Therefore, these statements do not warrant a grant of service connection or a determination that further development of the medical evidence is required. All other evidence of record, aside from the lay statements in support of this current claim, is unfavorable to the claim for service connection for a bilateral eye disorder, to include as due to in-service herbicide exposure. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the Veteran's claim of entitlement to service connection for a bilateral eye disorder, to include blindness of the left eye, amblyopia of the left eye, and bilateral cataracts, and to include as due to in-service herbicide exposure, is not warranted. II. Notice and Assistance Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). A. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the RO dated in December 2003, October 2003, November 2009, May 2010, and August 2011 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. A May 2011 letter also provided the Veteran with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's May 2011 duty-to-assist letter was not provided before the initial RO adjudication of his claim. However, after he was provided the letter, he was given a full opportunity to submit evidence, and his claim was subsequently readjudicated. He has not claimed any prejudice as a result of the timing of the letter, and the Board finds no basis to conclude that any prejudice occurred. Any notice defect in this case was harmless error. The content of the aggregated notices, including the notice letter subsequently issued, fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). After VA provided the May 2011 notice, the Veteran communicated on multiple occasions with VA, without informing it of pertinent evidence. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. For all of these reasons, the Board concludes that the appeal may be adjudicated without a remand for further notification. B. Duty to Assist VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of STRs and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His personnel records, and post-service VA and private treatment records have been obtained. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disorder currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. The Veteran's Virtual VA records were also reviewed and considered in preparing this decision. Regarding the Veteran's STRs, these records could not be located and are presumed destroyed in the 1973 fire at the NPRC. The Board has previously directed the RO to obtain additional service-related records. See BVA Remands, June 2009 and May 2010. Unfortunately, treatment records from the 28th General Hospital in Osaka, Japan, and records from the Veteran's National Guard service, have also been deemed unavailable for review. See Memorandum From Military Department of Tennessee, May 2010, and Memorandum Re: Availability of Service Records, November 2009. The Board notes that the record does contain the Veteran's August 1947 enlistment examination and several morning reports. The Veteran was notified of these missing STRS in a November 2009 letter from the RO. The Veteran was provided the opportunity to submit alternate evidence, and he did not. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. He has also been afforded a VA examination and VA medical opinions. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. ORDER The claim for service connection for a bilateral eye disorder, to include blindness of the left eye, amblyopia of the left eye, and bilateral cataracts, and to include as due to in-service herbicide exposure, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs