Citation Nr: 1300918 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 09-01 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a bilateral eye disorder (previously claimed as diplopia and vision loss). ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active military duty from September 1972 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision issued by the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied the benefit sought on appeal. This matter was previously before the Board in September 2008, April 2010, August 2011, and October 2011, and was remanded each time to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. The case has now been returned to the Board for appellate disposition. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's current bilateral eye disorder is not shown to be causally or etiologically related to his active military service. CONCLUSION OF LAW Service connection for a bilateral eye disorder (previously claimed as diplopia and vision loss) is not established. 38 U.S.C.A. §§ 1110, 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.304, 3.326(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. VA's Duties to Notify and Assist 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). 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). A letter from the RO dated in May 2004 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. An additional letter dated in April 2008 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 April 2008 duty-to-assist letter was not provided before the initial RO adjudication of the Veteran's claim in July 2004. However, after he was provided the letter, the claim was then readjudicated in the December 2008 Statement of the Case (SOC) based on any additional evidence received in response to that additional notice. This is important to point out because if there was no VCAA notice provided prior to the initial adjudication of the claim, or for whatever reason the notice provided was inadequate or incomplete, this timing error may be effectively "cured" by providing any necessary notice and then going back and readjudicating the claim, including in a SOC, such that the intended purpose of the notice is not frustrated and the Veteran is given ample opportunity to participate effectively in the adjudication of his claim. In other words, this timing error in the provision of the notice is ultimately inconsequential and, therefore, at most nonprejudicial, i.e., harmless error. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). For all of these reasons, the Board concludes that the appeal may be adjudicated without a remand for further notification. 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 service treatment records (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 STRs, Social Security Administration (SSA) records, and post-service VA and private treatment records have been obtained. The Veteran's Virtual VA records were also reviewed and considered in preparing this decision. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Veteran participated in a VA examination in May 2010, and a VA medical opinion was provided in May 2011. These results have been included in the claims file for review. The opinion was based on a review of the claims file, a thorough examination of the Veteran, and was supported by sufficient rationale. Therefore, the Board finds that the VA examination and medical opinion are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board is also satisfied as to substantial compliance with its September 2008, April 2010, August 2011, and October 2011 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This included scheduling the Veteran for a VA examination and medical opinion, which were provided in May 2010 and May 2011. The remand also included readjudicating his claim in a Supplemental SOC (SSOC). The RO and AMC tried on several occasions to provide the Veteran with a SSOC, but the SSOCs kept being returned to VA as undeliverable. Finally, in September 2012, the AMC sent the Veteran a copy of the September 2012 SSOC, and this SSOC was not returned to VA as undeliverable. Therefore, the Veteran has been notified of the readjudication and has been provided an opportunity to respond to it. Therefore, the Board finds that there has been substantial compliance with its remand directives. Id. 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. II. Service Connection The Veteran claims he has loss of vision related to his active military service. 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. § 1110. 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). 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 the 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As noted above, the first element of direct service connection requires medical evidence of a current disorder. Here, a current diagnosis has been established. Following a physical examination of the Veteran at the May 2010 VA examination, the examiner diagnosed the Veteran with the following diagnoses: refractive error (hypermetropia, astigmatism, presbyopia); mild eyelid ptosis of the right eye; blepharitis; dry eyes; and, bilateral senile cataracts. The examiner found that diplopia was not present. However, based on the other eye diagnoses, the Veteran has satisfied the first element of service connection for his bilateral eye disorder claim. 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. In this regard, the reports of medical examination and history at the time of the Veteran's enlistment into the military in September 1972, shows the Veteran had visual acuity of 20/20 for distant vision in both eyes and J-1 [Jaeger scores] with near vision for both eyes. There were no abnormalities of the eyes noted on clinical evaluation. The Veteran's STRs show that in August 1973 the Veteran was seen at a military dispensary with complaints of blurred vision when "wakening and standing." He also visited the optometry clinic in August 1973 complaining of an inability to read close-up. His visual acuity at that time was 20/30 for both eyes. There were no complaints or findings of diplopia in the STRs. According to the military discharge examination report in January 1974, the Veteran had visual acuity of 20/20 for distant vision in both eyes and J-1 with near vision for both eyes. Evaluation of his eyes showed normal findings. In the separation Report of Medical History, however, the Veteran indicated that he did not have vision in both eyes. Post-service, the Veteran underwent VA examinations in July 1974 and January 2003. The July 1974 examination of his eyes revealed normal findings. A January 2003 VA examination report reflects that refractive error was corrected by eyeglasses. In a September 2002 private neurological evaluation report, it was noted that the Veteran's visual acuity was 20/30 with the right eye and 20/40 with the left eye. In a May 2004 neurological report by the Veteran's private physician, Dr. A.M., it was noted that the Veteran had been complaining of visual problems, episodic diplopia, bilateral orbital pain, blurred vision and decreased visual acuity. This intervening lapse of so many years between the Veteran's separation from military service in 1974 and the first documented manifestation of a bilateral eye disorder in 2003 is probative evidence against his claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disorder). 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 opinion of record is negative. In May 2011, the May 2010 VA examiner provided a medical opinion based on his review of the Veteran's claims file and a physical examination of the Veteran. The VA examiner determined that the Veteran's current bilateral eye diagnoses were not caused by or a result of the Veteran's active military service. The examiner reasoned that the Veteran's loss of vision was instead caused by or a result of his moderate-severe dry eyes, senile cataracts, and blepharitis. The examiner clearly reviewed the STRs and other evidence in the claims folder. He provided an opinion that is supported by and consistent with the evidence of record. He provided an alternative theory to address the etiology of the current bilateral eye disorder. There is no positive evidence to the contrary of this opinion in the claims file. The treatment records do not provide contrary evidence. For all of these reasons, service connection is not warranted. The Veteran reports continuous vision loss symptomatology 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 2003, almost 30 years after the Veteran's military separation in 1974. Further, the STRs do not show that the Veteran developed a chronic bilateral eye disorder during his active military service. The STRs document two complaints of vision loss, which does not amount to a chronic bilateral eye disorder. Despite the Veteran's report of not having vision in both of his eyes on his separation Report of Medical History, the examining physician at his military separation examination did not find any abnormalities of the Veteran's eyes. Further, following his military discharge, the Veteran did not seek treatment for his eyes until almost thirty years later, which also does not document a chronic disorder. Thus, the Board finds that the medical evidence does not establish a chronic disorder in order to warrant a grant of service connection under this theory of entitlement. 38 C.F.R. § 3.303. In reaching this decision, the Board has considered the Veteran's arguments in support of his claim. The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., an injury during his active military service. 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. Although the Veteran is competent to report that he has experienced vision loss since his active military service, which resulted in his current bilateral eye disorder, the Board must still weigh his 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 concerning the etiology of his bilateral eye disorder to be credible. His STRs make reference to vision loss, but do not include a diagnosis pertaining to the eyes. Further, no abnormality of the eyes was noted at the Veteran's military separation examination. The first eye abnormality was noted in 2003, almost 30 years after his separation from the active duty. 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). It is important to point out that the Board does not find that the Veteran's 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, the Veteran's statements are found to be incredible because they are inconsistent with the evidence of record, which fails to show a diagnosis pertaining to an eye abnormality during his active military service. The Veteran was not diagnosed with his current bilateral eye diagnoses until almost three decades after his separation from the active duty. Further, the claims file contains a competent medical opinion from a physician who examined the Veteran and reviewed his claims file, and then determined that the Veteran's current bilateral eye disorder is not related to his active military service. For the reasons set forth above, the Board finds that the Veteran's lay statements that his vision loss 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 Veteran's statements in support of this current claim, is unfavorable to the claim for service connection for a bilateral eye disorder. 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 in this case. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the Veteran's claim of entitlement to service connection for a bilateral eye disorder (previously claimed as diplopia and vision loss) is not warranted. ORDER The claim for service connection for a bilateral eye disorder (previously claimed as diplopia and vision loss) is denied. ____________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs