Citation Nr: 1302114	
Decision Date: 01/18/13    Archive Date: 01/23/13

DOCKET NO.  11-02 548	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to service connection for bilateral visual loss (claimed as bilateral glaucoma and a left eye cataract).  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S.J. Janec, Counsel

INTRODUCTION

The Veteran had active military service from May 1943 to May 1949.

This matter comes before the Board of Veterans' Appeals (Board) from a March 2010 rating decision in which the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA) denied service connection for bilateral visual loss (claimed as bilateral glaucoma and a left eye cataract).  

The Veteran testified at a personal hearing before a Decision Review Officer at the RO in April 2012.  A transcript of the proceeding is included in the file.  

In December 2009, the Veteran perfected an appeal on the issue of entitlement to service connection for residuals of a right foot and toe injury.  However, in January 2010, he withdrew the appeal in writing.  Hence, the issue was not certified to the Board and will not be addressed in this decision.  

Please note that 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

Bilateral visual loss (claimed as bilateral glaucoma and a left eye cataract) did not have its onset during service or, indeed, until many years thereafter, and is not shown by competent medical, or competent and credible lay, evidence to be related to any in-service injury or disease.  


CONCLUSION OF LAW

Bilateral visual loss (claimed as bilateral glaucoma and a left eye cataract) was not incurred in or aggravated by service.  38 U.S.C.A. § §§ 1101, 1110, 1131, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012).  
REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. 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, with respect to the increased rating claims on appeal.  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 appellant).  

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 claimant.  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.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

I.  Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims for increased ratings.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).  

When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012).  The United States Court of Appeals for Veterans Claims (Court) held that 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The Court has also observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a).  

In a January 2010 letter, issued prior to the rating decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need to advise VA of, or submit any further medical evidence relevant to, the claim.  He was also advised of how disability ratings and effective dates are assigned.  Accordingly, the Board finds that the duty to notify provisions have been satisfactorily met and that neither the Veteran nor his representative has pointed out any specific deficiency to be corrected.  

The Board also concludes that VA's duty to assist has been satisfied.  The Veteran's service treatment records, VA medical records, and identified private medical records are in the file.  The Veteran presented personal hearing testimony before a Decision Review Officer at the RO in April 2012.  At no time during the current appeal has the Veteran referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the issue on appeal.  

A medical opinion was not obtained in conjunction with the Veteran's claim for service connection for visual loss.  The Board acknowledges that the Veteran was involved in a motor vehicle accident in April 1946 and that he sustained a laceration on his scalp.  However, the remainder of the Veteran's service treatment records do not document complaints of visual problems, and the Veteran has not presented competent medical or competent and credible lay evidence that his currently manifest bilateral glaucoma or left eye cataract and their resulting visual loss had their onset in service or are otherwise related to his active service, including the in-service motor vehicle accident in which he sustained a laceration to his scalp.  Hence, the Board finds, under such circumstances, that VA is not obligated to obtain a VA opinion for this claim.  See 38 U.S.C.A. § 5103A (d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006) [which held that, under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service (or VA treatment); and the record does not contain sufficient information to make a decision on the claim].  Consequently, the Board finds that VA's duty to assist has also been met in this case.  

II.  Law and Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b) (2012).  

Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).  

Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).  Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

Here, the Veteran's current visual loss (due to bilateral glaucoma and a left eye cataract) was not manifest in service.  His service treatment records show that he was involved in an automobile accident in April 1946, when he sustained a scalp laceration.  However, there is no documentation of any injury to the eyes or any visual loss due to glaucoma and/or cataracts.  Upon induction examination in April 1943, his visual acuity was 20/25, bilaterally.  It was noted that there were no eye abnormalities.  Upon examination in November 1945, visual acuity was 20/15, bilaterally.  Upon examination in May 1949, his visual acuity was 20/20, bilaterally.  Later, in May 1968, he was hospitalized at a VA facility, in part, for complaints of double vision.  Clinical evaluation revealed that is fundi were unremarkable, pupils were round, regular, equal and reactive to light.  Eye movements were within normal limits and there were no field deficits.  Cranial nerves were intact.  

Current VA records dated from February 2009 through August 2010 show that the Veteran has been diagnosed with bilateral glaucoma and a left eye cataract, with resulting visual loss.  However, there is no competent medical, or competent and credible lay evidence establishing a relationship between the Veteran's military service, including his scalp laceration, and his currently manifest eye disorders.  (To the extent that the Veteran may assert that his visual acuity worsened during active service, the Board observes that congenital or developmental defects such as refractive error are not diseases or injuries within the meaning of the applicable legislation on VA compensation benefits.  38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2012); Beno v. Principi, 3 Vet. App. 439 (1992).  There is no indication that the visual acuity change was due to eye injury or disease that was incurred in service).  

The Veteran is competent to report the visual problems that he experiences.  However, he is not competent to diagnose himself with glaucoma and/or cataracts, which are complex medical conditions requiring special education, expertise, and equipment to diagnose.  See Espiritu, Jandreau, supra.  Additionally, the Board finds that the Veteran's assertions are not credible in light of the medical records denoting no eye abnormalities at the time he was hospitalized in 1968, almost 20 years after his release from active duty.  Consequently, the Board finds that the objective contemporary clinical evidence pertaining to the Veteran's medical problems is more probative than later unsupported statements made in conjunction with a claim for VA compensation benefits.  Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  Consequently, the Board finds that no probative weight can be assigned to the statements regarding experiencing eye problems or visual loss since service.  

Moreover, the Board observes that the Veteran has not specifically claimed to have had vision problems since service.  Further, there are no medical records documenting complaints of glaucoma and/or cataracts to satisfy the continuity of symptomatology requirement of § 3.303(b) until decades after discharge.  In this regard, the Board notes that a prolonged period without documented medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  Here, the lack of complaints of visual problems, as well as the absence of clinical evidence reflecting treatment for glaucoma and/or cataracts until many years after discharge from active service, and the fact that clinical evaluation in 1968 did not reveal any evidence of these claimed disorders, are against this service connection claim.  Hence, the Board concludes that service connection may not be granted for this disability.  

The Veteran has been provided with ample opportunity to present competent medical evidence to support his claim.  However, he has not done so.  See 38 U.S.C.A. § 5107(a) (West 2002) (it is a claimant's responsibility to support a claim for VA benefits).  In the absence of any persuasive evidence that the Veteran's currently manifested bilateral glaucoma and left eye cataract with resulting visual loss are etiologically related to active service (to include the in-service motor vehicle accident that resulted in a scalp laceration), service connection is not warranted, and the claim must be denied.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012).  


ORDER

Service connection for bilateral visual loss (claimed as bilateral glaucoma and a left eye cataract) is denied.  



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs