Citation Nr: 1302172 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 09-21 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for an eye disability. 2. Entitlement to service connection for a psychiatric disability. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1954 to July 1958. He reports serving in the reserves following his active duty service until 1962. This matter comes before the Board of Veterans' Appeals (Board) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, that continued previous denials of service connection for an eye disability and a psychiatric disability. The Veteran testified at a hearing before a Veterans Law Judge in January 2011. Transcripts of that hearing is of record. However, that Veterans Law Judge is no longer employed by the Board. The Veteran has been notified that the Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). He was given the opportunity to have another hearing, but he declined. The Board reopened the claims for service connection for an eye disability and for a psychiatric disability in August 2011. Both of those issues were remanded for additional development. That development substantially has been completed. Adjudication accordingly may proceed if otherwise in order. Dyment v. West, 13 Vet. App. 141 (1999). The psychiatric disability issue is REMANDED to the RO via the Appeals Management Center in Washington, D.C. This matter 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 To the extent the Veteran has an eye disability for which service connection can be granted, that disability is not related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for an eye disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 4.9 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159 (2012). Proper notice from VA must inform the claimant, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), of any information and any 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. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. The Veteran was notified by a March 2006 letter of how VA determines disability ratings and effective dates if service connection is awarded. An April 2006 letter notified him of the criteria for establishing service connection, the evidence required, and his and VA's respective duties for obtaining evidence. All notice elements were addressed prior to the initial adjudication in the August 2007 rating decision. Nothing more is required. The June 2011 letter and the portion of the August 2012 supplemental statement of the case addressing some of the notice elements exceeded what is required. Even if a defect with respect to notice content or timing existed, any defect is harmless because the Veteran has had a meaningful opportunity to participate in the processing of this appeal. The essential fairness of adjudication has not been impacted. VA is required to aid the claimant in the procurement of service medical records and other medical treatment records, whether or not they are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159(c) (2012). VA also is required to provide a medical examination or obtain a medical opinion when necessary. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. §§ 3.159(c)(4) (2012). The Veteran has not identified any records, examination, or other development necessary for a fair adjudication of the claim that has not been obtained or sought. The record also does not indicate any further development is needed. Service medical records and VA treatment records have been obtained. Pursuant to the Board's August 2011 remand, VA obtained a negative response for records from the Social Security Administration (SSA). He was advised of that and submitted a few records on his own behalf. No further mention of those records shall be made, as they do not concern his eyes and also appear to show his disability benefits were converted to retirement benefits. No private treatment records have been obtained by VA. However, no private facility has been identified by the Veteran as providing pertinent treatment. He also did not submit any pertinent private treatment records on his own behalf. A VA eye examination was conducted in December 2011 pursuant to the aforementioned remand. The examiner reviewed the Veteran's claims file and his medical records, interviewed him, and undertook an assessment of him. Diagnoses were made and an opinion was provided regarding whether or not the diagnosed disorders were related to the Veteran's service. All questions necessary to render the determinations made herein thus were answered. The examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, the Board finds no support for the Veteran's assertion that the examiner's only objective was to refute his entitlement to service connection. The examiner simply disagreed with the Veteran about whether service connection should be granted. The Board finds that VA's duties to notify and to assist both have been satisfied and that no further notice or assistance to the Veteran is required. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Appellate review therefore may proceed without prejudice. Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service or if pre-existing service, was aggravated therein. 38 C.F.R. § 3.303(a) (2012); 38 U.S.C.A. §§ 1110, 1131 (West 2002). To establish service connection, there generally must be (1) a current disability, (2) incurrence of an injury or disease during service or aggravation of a pre-existing injury of disease by service, and (3) a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007); . Service connection also may be established if the evidence of record reveals chronicity or continuity. 38 C.F.R. § 3.303(b) (2012). If a chronic disease is shown in 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) (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology after service is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity legitimately may be questioned. 38 C.F.R. § 3.303(b) (2012); Savage v. Gober, 10 Vet. App. 488 (1997). Service connection may be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Board must account for evidence that it finds to be persuasive or unpersuasive and provide reasons for rejecting any material evidence favorable to the Veteran. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, an assessment of the probative value of the lay evidence in addition to the medical evidence must be undertaken. Lay evidence indeed may be sufficient by itself to support a claim. Barr v. Nicholson, 21 Vet. App. 303 (2007). That is the case where the evidence is both competent and credible. Competency is a legal concept determining whether testimony may be heard and considered whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6. Vet. App. 465 (1994). A lay person is competent to provide testimony or statements relating to facts of events that the lay person observed or that is within the realm of personal knowledge. Layno v. Brown, 6. Vet. App. 465 (1994). In weighing credibility, discounting of competent testimony or statements from a lay person may occur in the light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Factors for consideration include a showing of interest, self-interest, bias, inconsistent statements, inconsistency with other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor. Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). The Board cannot determine that lay testimony or a lay statement lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the lack of such evidence in combination with other factors may lead to the determination the lay testimony or statement is not credible. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, reasonable doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran prevails when the evidence supports his claim or is in relative equipoise, but does not prevail when the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although all the evidence has been reviewed, only the most salient and relevant evidence is discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record but does not have to discuss each piece of evidence). The evidence leads the Board to conclude that service connection for an eye disability is not warranted. All necessary requirements for establishing entitlement to that benefit are not met. A current disability exists when there is a disability when a claim for it is filed or at any time during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran filed for service connection for an eye disability in October 2005. That benefit was denied in a May 2006 rating decision. In April 2007, the Veteran submitted a statement concerning his eyes. The Board discussed in August 20011 that the statement was construed as a request to reopen rather than an appeal. The Board therefore found that April 2007 rather than October 2005 is the date of claim. Regardless of which of the dates is the date of claim, the evidence shows that the Veteran has a current eye disability. Reticular degeneration and vitreous syneresis/floaters were diagnosed prior to the claim being filed in a 2004 VA treatment record, but they were not diagnosed when the claim was filed or during its pendency. However, the Veteran has had refractive error persistently since prior to the claim being filed. VA treatment records show such a diagnosis in 2001. VA treatment records additionally show that presbyopia was diagnosed beginning in 1999, while hyperopia was diagnosed in 2001. Refractive error further was diagnosed at the December 2011 VA eye examination. In addition to refractive error, the Veteran has had cataracts persistently since prior to the claim being filed. VA treatment records beginning in 2001 contain a diagnosis of cataracts. That diagnosis was also made at the December 2011 VA eye examination. Based on the above, refractive error and cataracts comprise the Veteran's current eye disorder. Acknowledgement is given to his assertion that his main eye problem is going blind after his eyes are exposed to bright light. A lay person is competent to diagnose a condition only when the person (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms at the time that support a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is a lay person because there is no indication he possesses medical knowledge, training, or experience. Conditions such as flat feet, certain skin ailments, tinnitus, and varicose veins are examples of conditions a lay person is competent to identify. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398 (1995). The Veteran is not competent to identify or diagnose any eye disability. Unlike flat feet and the rest of the aforementioned conditions which are simple to detect and diagnose, conditions of the eye are not. An eye symptom such as going blind for a period of time is simple to detect, but a symptom does not in and of itself constitute a disability without a diagnosed or identifiable underlying malady or condition. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). The Veteran did not attempt to diagnose a condition which accounts for his claimed symptomatology. No diagnosis has been made by a medical professional of any disability due to light exposure in the eyes. The examiner who conducted the December 2011 VA eye examination indicated that being unable to see for a period of time following exposure to bright light is a normal physiologic response. It also was noted that response was not excessive in the Veteran during the examination, nor had an excessive response been documented in his VA treatment records. He disputed that, reporting fogginess and an inability to focus for up to a few weeks after bright light exposure. It appears that he is reporting the quality of his vision was bad in those weeks rather than that he had complete vision loss. The diagnoses of refractive error, inclusive of presbyopia and hyperopia, and cataracts account for his impairment of his vision. Refractive error of the eye is not a disease or injury within the meaning of legislation governing service connection. 38 C.F.R. §§ 3.303(c), 4.9 (2012); McNeely v. Principi, 3 Vet. App. 357 (1992). Service connection cannot be granted for the refractive error component of the Veteran's current eye disability. There is no showing that any disability for VA purposes is superimposed on the refractive error. That leaves for consideration cataracts. The Veteran's service medical records are silent with respect to cataracts. He denied eye trouble upon his active duty service entrance examination in July 1954 and at another examination in July 1954. His eyes were found to be normal each of those times. It follows that he did not have pre-existing cataracts which could have been aggravated during his active duty service. The Veteran did not complain about or receive treatment concerning his eyes during service. He denied eye trouble upon separation examination in June 1958. His eyes were found to be normal at that time. It follows that he did not incur cataracts during his active duty service. The Veteran does not contend that he incurred cataracts in service. Rather, he has recounted experiencing an inability to see for a period of time after he worked in a dark room with a light table during his active service. He is competent to so recount because that would have been within his personal experience. He is credible to so recount because there is no reason to doubt his assertion. The Veteran's statements are not contradicted by any other evidence. A photograph of him working with a light table is of record. The Veteran's allegation is also facially plausible. It was reiterated that the examiner who conducted the December 2011 VA eye examination indicated the inability to see for a period of time was a normal consequence of bright light exposure. That such a normal consequence would not have been reported by the Veteran, and thus is not documented in the service medical records, is not surprising. The Veteran does not contend that he had chronic cataracts or at least some symptoms of cataracts continuously since his active duty service. He does contend that he has had eye strain or damage in the form of an inability to see for a period of time subsequent to bright light exposure ever since his active duty service. Yet chronicity and continuity of symptomatology are not shown because of the lack of an in-service indication of cataracts or any eye symptom which was abnormal. The evidence indicates that the Veteran continued to experience a normal reaction to exposure to bright light after his active service as he did during it. To the extent he really experienced decreased vision rather than vision loss, refractive error cannot be service-connected. Cataracts first were diagnosed in 2001, over 40 years after the Veteran's discharge from active duty service in 1958. All that remains for consideration is whether or not there is a nexus, other than through chronicity or continuity of symptomatology, between the cataract component of the Veteran's current eye disability diagnosed after service and the Veteran's service. It is clear that he believes his work in a dark room with a light table during his active duty service resulted in eye strain or damage that ultimately caused his current eye disability which encompasses cataracts. Medical evidence is not necessarily required when the determinative issue involves etiology. It is error to suggest that lay evidence can never be enough to establish that there is a nexus between a claimed condition and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). However, the question of whether there is a nexus in this case is medical in nature. There are numerous potential causes of cataracts. The eye is a complex organ, and cataracts were first diagnosed many years after service. Therefore, only those with medical expertise therefore are competent to opine as to nexus. Jones v. West, 12 Vet. App. 460 (1999). It follows that, as a lay person without such expertise, the Veteran is not competent to render an opinion that the required nexus exists. Cromley v. Brown, 7 Vet. App. 376 (1995); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). One medical opinion is of record. The examiner who conducted the December 2011 VA eye examination opined that the Veteran's cataracts "have absolutely nothing to do with his" work in a dark room involving a light table during active service. The examiner highlighted that the service medical records were negative and that there was a long period of time after active service before any eye symptoms, which would include cataract symptoms and symptoms of other eye conditions, were complained of or detected. Factors that may be considered in assessing the probative value of a medical opinion include a physician's access to the claims file or other pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of examination, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Prejean v. West, 13 Vet. App. 444 (2000); Black v. Brown, 10 Vet. App. 297 (1997); Ardison v. Brown, 6 Vet. App. 405 (1994); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The examiner who conducted the December 2011 VA eye examination is an assistant chief of ophthalmology. The examiner's negative opinion was rendered following review of the claims file and interview of the Veteran. No deficiency is found in either respect. Indeed, the review of the claims file covered approximately seven pages of the examination report and is best characterized as extensive. That strongly suggests that the factual premises underlying the opinion are accurate. There is no indication to the contrary. No degree of uncertainty was expressed in rendering the opinion. A rationale was offered. The opinion, though succinct, is sufficiently thorough and detailed to be afforded substantial probative value. The Board finds that opinion to be the most persuasive evidence in this case and to outweigh any lay assertions to the contrary. In sum, the Board finds that the preponderance of the evidence is against service connection for an eye disability under all applicable theories of entitlement. Therefore, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an eye disability is denied. REMAND The issue of entitlement to service connection for a psychiatric disability unfortunately must be remanded. Although the Board sincerely regrets the additional delay this will cause, adjudication cannot proceed without further development. VA's duty to assist requires that any VA medical opinion obtained be adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Hayes v. Brown, 9 Vet. App. 67 (1996). A medical opinion is adequate when it allows the Board to perform a fully informed evaluation of the claim. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, it must be based upon consideration of the Veteran's entire medical history. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994). That helps ensure that the factual premises underlying a medical opinion are accurate. Reonal v. Brown, 5 Vet. App. 458 (1993). Pursuant to the Board's August 2011 remand, the Veteran underwent a VA mental disorders examination in December 2011. His claims file and medical records were reviewed. The Veteran indicated that his psychiatric symptoms started immediately after discharge from active service in 1958, that the symptoms worsened thereafter, and that he started taking medication for them "around 20 years ago." Generalized anxiety disorder and depressive disorder, not otherwise specified, were diagnosed by the examiner. A different examiner opined in an April 2012 addendum, following review of the Veteran's claims file, that it was less likely than not that the diagnosed disorders were incurred in or caused by service. The rationale provided hinged upon the Veteran reporting that he was first diagnosed with and began treatment for his symptoms "about 20 years ago" in approximately 1992. It was noted that was 30 years after his 1962 discharge from reserve service subsequent to his active duty service, and thus it was determined that service was not likely a contributing factor leading to the diagnosis. The Board finds the VA medical opinion in the addendum did not consider the Veteran's entire medical history but rather was made based on an inaccurate factual premise. The April 2012 examiner did not interview the Veteran. That examiner reviewed the claims file to include the December 2011 VA mental disorders examination report summarizing an interview of the Veteran, but that review evidently was not thorough. The examiner inaccurately indicated that the Veteran had reported onset of his psychiatric symptoms about 20 years ago. The Veteran reported, at the examination, onset immediately following active duty service with medication treatment beginning around 20 years ago. He otherwise has reported, in statements and testimony, onset during his active duty service. For the Board to perform a fully informed evaluation, another VA medical examination with medical opinion is needed. Accordingly, the case is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. 1. Obtain any VA medical records dates cine August 2012. 2. Then, schedule the Veteran for a VA medical regarding his psychiatric disability. The examiner must review the claims file and must note that review in the report. The examiner should obtain from the Veteran a description of his relevant history and symptomatology, to include information about onset, frequency, duration, and severity. All tests, studies, or evaluations deemed necessary should be performed. The examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current psychiatric disability was incurred in or otherwise is related to his active duty service. A complete and clear rationale must be provided for the opinion. That should include discussion of the pertinent service medical records, VA treatment records, previous VA mental disorders examination and addendum, and lay evidence such as the Veteran's statements. Thus, Veteran's claim of continuity of symptomatology after service should be addressed. 3. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The Veteran has the right to submit additional evidence and argument on the issue the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs