Citation Nr: 1301674 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-12 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Entitlement to service connection for vision loss. 2. Entitlement to an effective date for an award of service connection for posttraumatic stress disorder (PTSD), prior to July 31, 2008. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to October 1970. He had a period of active duty for training from June 4, 1978 to June 17, 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). By rating action dated May 2006, the RO denied the Veteran's claim for service connection for vision loss. A December 2008 rating action granted service connection for PTSD, and assigned July 31, 2008 as the effective date of the claim. The Veteran disagreed with the effective date of the award. This case was previously before the Board in December 2009, at which time it was remanded for additional development of the record. As the requested actions have been accomplished, the case is again before the Board for appellate consideration. In its December 2009 determination, the Board denied service connection for residuals of a low back injury. Accordingly, this decision is limited to the issues set forth on the preceding page. The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a residuals of a low back injury has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has vision loss that is related to service. 2. The Veteran did not file a claim for service connection for PTSD within one year of his separation from service. 3. The Veteran's initial claim for service connection for PTSD was received on July 31, 2008. CONCLUSIONS OF LAW 1. Vision loss was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303(c) (2012). 2. The criteria for an effective date for an award of service connection for PTSD, prior to July 31, 2008, have not been met. 38 U.S.C.A. §§ 5101(a), 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant 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, and 3.326(a) (2012). Duty to Notify The notice requirements of the VCAA require VA to notify a Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In any event, where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). By letter dated November 2005, issued prior to the rating decisions on appeal, the RO provided notice to the Veteran regarding what information and evidence were needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. A March 2006 letter advised the Veteran of how the VA assigns a disability rating and an effective date, and the type of evidence which impacts such. The Veteran's claim for an earlier effective date for the grant of service connection for PTSD arises from his disagreement with the effective dates assigned following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Further, because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). Duty to Assist The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, private and VA medical records, the reports of VA examinations, and the testimony of the Veteran at two Board hearings, including one before the undersigned. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). VA examinations were conducted, and opinions regarding the etiology of the Veteran's vision loss have been obtained. The VA opinions were rendered by a medical professional who clinically evaluated the Veteran, and provided a factual foundation for the conclusions that were reached. Therefore, the Board finds that the opinions are adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. As discussed above, the appellant was notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by submitting evidence and providing testimony. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of these matters. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Service connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms. Savage v. Gober, 10 Vet. App. 488 (1997). The Veteran asserts service connection is warranted for vision loss. He claims he received thermal burns during service and wound up with blurry vision. He argues he was serving on a boat that was involved in a firefight. He insists he was temporarily blinded by a flash burn and wore patches over both eyes. The record reflects the Veteran was awarded the Purple Heart Medal. In each case in which a veteran is seeking service connection for a disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which the veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C.A. § 1154(b). However, the provisions of 38 U.S.C.A. § 1154 do not obviate the requirement that a veteran must submit medical evidence of a causal relationship between his current condition and service. See Libertine v. Brown, 9 Vet. App. 521, 524 (1996). That is, even assuming combat status, the veteran must provide satisfactory evidence of a relationship between his service and his current condition. Wade v. West 11 Vet. App. 302, 305 (1998). He has not done so in this case. When examined in October 1966, prior to his entry into service, the eyes were evaluated as normal. Uncorrected distant vision was 20/25 in the right eye, and 20/20 in the left eye. The summary of defects section listed defective vision. Corrected visual acuity was 20/15 bilaterally in July 1967, and uncorrected visual acuity was 20/30 in the right eye and 20/25 in the left eye in September 1967. Corrected visual acuity was 20/20 in each eye in March 1968. A report of casualty dated May 1968 discloses the Veteran received multiple burns and abrasions to his hands when his craft was hit by enemy rockets. It was noted in July 1968 that the Veteran had thermal burns to both eyes. An examination demonstrated pink inflammation of both eyes and the eyelids. The Veteran was seen the next day, and it was indicated the right eye was asymptomatic, but the left eye was blurry. Corrected visual acuity was 20/20 in August 1968. He complained of blurry vision in July 1970. Visual acuity was 20/40 in the right eye and 20/30 in the left eye. On the separation examination in September 1970, the eyes and an ophthalmoscopic evaluation were normal. Distant vision was correctable to 20/20, bilaterally. "Visual acuity" was noted under the summary of defects. It was not considered disqualifying. Private medical records reveal the Veteran was seen in January 1992 and the assessment was presbyopia. VA outpatient treatment records disclose the Veteran was seen in October 2006 and reported blurred vision. He mentioned there was an explosion on a boat in Vietnam in which he sustained ocular trauma/burns. He stated he wore a patch on his eyes for two weeks and felt that his eyes were "scarred" by this incident. Corrected visual acuity was 20/25 in the right eye and 20/30 in the left eye. The assessments were early retinal pigment epithelium changes and refractive error/presbyopia. On VA examination of the eyes in February 2009, a history of ultraviolet keratitis was noted. It was indicated the Veteran was near a welder and was exposed to ultraviolet radiation, causing keratitis. It was reported his eyes were patched and he rested in sick bay for two weeks. The assessments were mild cataracts of both eyes, not visually significant at this time; refractive error with presbyopia of both eyes; meibomian gland dysfunction of both eyes; and mild retinal pigment epithelium changes of the left eye. The examiner noted she reviewed the claims folder and medical records. She concluded the Veteran's eye condition was not permanently aggravated and indicated he suffered ultraviolet keratitis. She commented that the only ocular injury that was described sounded like ultraviolet keratitis. She added the only ocular record was a brief note regarding a complaint of blurry vision in July 1970, and this appeared to be due to refractive error. The Veteran was again examined by the VA in June 2010. The examiner noted she reviewed the claims folder and medical records. The Veteran related he sustained welding flash burns to both eyes in 1968. The diagnoses were cataracts of both eyes and possible early macular degeneration. In August 2010, a VA optometrist provided an opinion regarding the etiology of the Veteran's vision problems. The examiner stated he reviewed private medical records and the service treatment records. He concluded that mild maculopathy of the left eye was not caused by or a result of the photokeratitis (welder's flash) of both eyes. He commented that welder's flash can cause keratitis to the front of the eyes, which heals in a matter of days/weeks. He added that it does not affect the retina or macula. Finally, he noted the Veteran has a long history of smoking which is a risk factor for maculopathy. The Board acknowledges the Veteran was treated in July 1968 after receiving thermal burns to his eyes. While the Veteran alleges he has had eye problems since this incident, the remainder of the service treatment records does not show any abnormality of the eyes. In this regard, it is significant to point out that the Veteran's visual acuity was normal in August 1968. Although the discharge examination lists "visual acuity" as a defect, no clinical abnormalities were present and the Veteran's corrected visual acuity was within normal limits. The first indication of any eye problems was in January 1992, when the Veteran was seen for presbyopia. He was noted to have early retinal pigment epithelium changes in 2006, and cataracts in 2009. Evidence of a prolonged period without medical complaint is for consideration. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.Cir.2000). While the fact that any eye problem was initially documented many years after service is not dispositive, it is crucial evidence and, combined with the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). In light of the absence of any eye complaints for so many years after service, the Board finds that the objective medical evidence of record outweighs the credibility of his reported onset and continuity of symptomatology. Such records are more reliable, in the Board's view, than the Veteran's unsupported and contradictory assertions of the onset of his symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]; see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. The Board acknowledges the Veteran's assertions that an eye disability is related to service. However, as a lay person, he is not competent to diagnose a disability or render an opinion as to the cause or etiology of such disorder as that requires medical expertise which he is not shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Although the Veteran is competent to testify as to the fact he sustained burns to the eyes in service, and this is supported by the service treatment records, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does not reflect that the Veteran currently possesses a recognized degree of medical knowledge that would render his opinion on causation competent. The only medical opinion of record concluded that maculopathy of the left eye was not caused by the keratitis in service. The Board also reiterates that service connection is not in order for refractive error of the eyes. The Board concludes, therefore, that the medical findings are of greater probative value than the Veteran's allegations regarding the etiology of vision loss. Accordingly, the Board finds the preponderance of the evidence is against the claim for service connection for vision loss. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). II. Effective date A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the VA may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155. Except as otherwise provided, the effective date of an evaluation and award of service connection shall be the day following separation from active service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2). The Veteran argues an earlier effective date is warranted for the award of service connection for PTSD. When he testified before the undersigned in September 2012, he asserted that when he met with his representative, he discussed PTSD, and believed this was part of his claim. He stated he filed a notice of disagreement to the May 2006 rating action, and assumed a claim for service connection for PTSD had been filed. Finally, he maintains that because he was receiving treatment, he thought a claim had been filed. The Veteran submitted VA Form 21-526 in November 2005. There was no mention of PTSD, or any psychiatric disability. By rating decision dated May 2006, the RO denied service connection for shrapnel wounds to the back, head and throat, hearing loss in the left ear, tinnitus, vision loss and residuals of a low back injury. The Veteran was notified of this determination in a May 2006 letter. The letter made no mention of PTSD. A Decision Review Officer (DRO) report dated July 31, 2008 is of record. It was noted under the summary of discussion that the evidence shows that the Veteran was in close combat. By rating action dated December 2008, the RO granted service connection for PTSD, and assigned a 70 percent evaluation effective July 31, 2008. This was the date of the DRO conference, which the RO construed as a claim for service connection for PTSD. The Veteran insists he filed a claim for service connection in 2005, following a meeting with his representative. While it is true that a claim was received in November 2005, the Veteran, who signed the claim form, failed to make any reference to PTSD. Although he believed his representative would make this claim, the fact remains his signature is on the application, so his attempt to attribute the failure to submit a claim for service connection for PTSD in 2005 is disingenuous and without merit. The regulations require that a claim must be filed. In this case, the claim for service connection for PTSD was not received until July 31, 2008. The Board acknowledges the Veteran claims he received treatment for PTSD shortly after his claim was received in November 2005. While VA outpatient treatment records do show he was seen in January 2006, at which time he described an in-service stressor and it was noted he had multiple PTSD symptoms related to that incident, these records are not pertinent to his claim for an earlier effective date. The Board notes that the effective date of service connection cannot be based on the date of the earliest medical evidence showing that the Veteran PTSD that is related to service. It must be based on the date that the application upon which service connection was eventually awarded was filed with VA. See Lalonde v. West, 12 Vet. App. 377, 382 (1999) (Since the appellant had not been granted service connection for his anxiety disorder, the mere receipt of medical records cannot be construed as an informal claim). Hence, although there are VA outpatient treatment records reflecting treatment for PTSD prior to August 30, 2001, this fact is essentially irrelevant. The provisions of 38 C.F.R. § 3.157 (2012) are, therefore, inapplicable. Since the Veteran did not file a claim for service connection for PTSD prior to July 31, 2008, the VA is precluded, as a matter of law, from granting an effective date prior to that date for service connection for PTSD. Since the Veteran's claim for service connection for PTSD was received more than one year following his separation from service, the proper effective date is the date his claim was received, that is, July 31, 2008. There is no basis on which an earlier effective date may be assigned. Thus, in this case, the law is dispositive of the claim, and it should be denied because of lack of legal entitlement. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for vision loss is denied. An effective date for an award of service connection for PTSD, prior to July 31, 2008, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs