Citation Nr: 1301802	
Decision Date: 01/16/13    Archive Date: 01/23/13

DOCKET NO.  07-28 187	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for residuals of a left eye injury, claimed as swelling in the left frontal forehead. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Hager, Counsel

INTRODUCTION

The Veteran had active service from May 1966 to May 1969.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA).  In that decision, the RO denied service connection for left eye condition (claimed as numbness over left eye and swelling).

The Veteran appeared at a video conference hearing before the undersigned Veterans Law Judge in February 2009.  A transcript of the hearing is of record.

In May 2009, the Board remanded the claim.  In August 2010, the RO granted service connection for residuals of a head injury.  In the body of its decision, the RO discussed only scars as a residual of the in-service head injury claimed.  The issue on appeal has been characterized accordingly.

In February 2011, the Board again remanded the claim.  As the Board will grant the benefit sought in this decision, discussion of whether there was compliance with the Board's remand instructions is unnecessary.


FINDING OF FACT

The Veteran has had swelling above the left eye during the appeal period that is due to an in-service injury.


CONCLUSION OF LAW

With resolution of reasonable doubt in the Veteran's favor, residuals of swelling over the left eye were incurred in service.  38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  As the Board is, however, granting the only claim on appeal herein, for service connection for left eye injury residuals, further discussion of the VCAA is unnecessary.  Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001).

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

In his written statements and Board hearing testimony, the Veteran described sustaining an injury to his head including the left eye from shrapnel from a mortar blast.  The service treatment records include references to treatment for a contusion over the eye in March 1968, which the Veteran indicated took place on his return from Vietnam.  A Veteran is competent to describe in-service injury and observable residuals, see Washington v. Nicholson, 19 Vet. App. 362, 368 (2005), and the RO implicitly found the Veteran's account credible when it granted service connection for in-service head injury residuals based on the Veteran's description of the same in-service incident that he claims resulted in an in-service eye injury.  The Board therefore finds that there is competent and credible evidence of in-service injury above the left eye.

On the January 2010 VA examination, there were no abnormalities of the left forehead, no fluctuation, no swelling, no edema, and no neurological deficits.  Two court cases lead the Board to conclude, however, that the lack of a specifically diagnosed left eye disorder on the January 2010 examination is not fatal to the Veteran's claim.  In Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361-1362 (Fed. Cir. 2001), the Federal Circuit declined to reach the question of whether pain alone is a compensable disability, even if the pain cannot be attributed to any current disability.  Rather, the Court found that it could not reach this issue without a factual finding of nexus between current symptoms of pain and in-service injury, and held that to establish entitlement to service connection, a veteran must prove existence of disability that has resulted from a disease or injury that occurred in service.  In addition, the Court has held that the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

The Veteran filed the claim on appeal herein in May 2006.  The evidence includes an October 2006 brain CT scan with an impression of scarring associated with the subcutaneous tissue of the left supra orbital scalp and a February 2009 letter from Dr. P.C. indicating that the Veteran suffers from permanent neurological deficit of the left side of his head and surrounding eye areas due to his in-service injury.  In addition, the Veteran has consistently stated that he has experienced swelling above the left eye since the in-service injury and the January 2010 VA examiner, though finding no neurologic abnormalities on examination, wrote with regard to recurring episodes of swelling described by the Veteran, "This can happen, particularly to scalp wounds, particularly when the blood flow to the scalp increases such as summer time."  There is thus competent evidence that the Veteran has had swelling above left eye swelling during the appeal period due to his in-service left eye injury and therefore met the requirement of showing current disability due to in-service injury.  With reasonable doubt resolved in favor of the Veteran, he is entitled to service connection for residuals of swelling above the left eye.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 




ORDER

Entitlement to service connection for residuals of a left eye injury, manifested by swelling above the left eye is granted.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs