Citation Nr: 1303889 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 05-33 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for eye disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his son ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from January 1949 to January 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2009, the Board reopened the claim which had previously been denied, based on new and material evidence. This matter was remanded then and in May 2012 for further development. The Veteran presented testimony at an RO hearing in March 2007, and a transcript of the hearing is associated with his claims folder. 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). FINDINGS OF FACT 1. Refractive error is not a disease or injury under VA compensation law. 2. Other current eye disabilities were not manifest in service and are unrelated to service. CONCLUSION OF LAW The criteria for service connection for eye disability are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in July 2003. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). Any failure to provide the notice required by Kent v. Nicholson, 20 Vet. App. 1 (2006), regarding reopening claims previously denied, is moot, as the claim has been reopened. Any failure to advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, as is required by Dingess, is harmless, as service connection for eye disability has been denied, rendering moot any effective date or degree of disability issues. VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for eye disability in 2010 and 2011; and afforded the Veteran and his son the opportunity to give testimony before the Board. The 2010 and 2011 medical opinions, along with other evidence, collectively are adequate to render a fair and impartial determination on the claim. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO complied with the Board's May 2012 remand by reviewing additional evidence which had been submitted and readjudicating the claim. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). Refractive error of the eye is not a disease or injury within the meaning of VA compensation law. 38 C.F.R. § 3.303(c). Service treatment records show that in April 1950, the Veteran complained of excessive left eye watering associated with an upper respiratory infection. The examiner found no conjunctivitis to be present and prescribed boric acid wash. In November 1950, the Veteran received second degree burns to his face. His eyes were described as normal but his eyelids were edematous and swollen. Later in November 1950, his corneas were clear, his fundus was normal, and there was no injury sustained to the globes. The eyes were treated with butyl sulfate. Another November 1950 record shows that the Veteran's eyes were assessed as satisfactory. The Veteran's January 1952 service discharge examination report shows that his eyes were assessed as normal and that his visual acuity was 20/20 bilaterally. In June 1960, the Veteran stated that "Now, my eyes are bothering me and the skin on the left eyelid is turning blue." On VA examination in December 1960, the Veteran complained of poor left eyesight. A slight bluish discoloration of the left upper eyelid and bilateral pingueculae were found. The remaining media and adnexa were clear and the fundi were well visualized in both eyes. No gross lesions were visualized. Bilateral pingueculae of unknown etiology and a nondisfiguring discoloration of the left upper eyelid of unknown etiology were diagnosed. In February 1973, a private physician reported that in January 1973, the Veteran had complained of difficulty with his eyes and of his eyes drying up. On VA examination in November 1974, the Veteran complained of pain with lacrimation since 1952. He had 20/20 visual acuity on examination and his fundi were normal. On private evaluation in June 1975, a history of facial burns during the Korean war and complaints of eyes hurting and watering were reported. The doctor found presbyopia and an otherwise normal examination. A March 1983 private medical report states that the Veteran was treated from June 1982 to present, and that his complaints included photophobia. On VA examination in July 1983, the Veteran reported an in-service 2nd degree burn with chronic eye irritation ever since, which caused him to have to use tinted glasses. Also, his eyes had burned, watered, and felt dry constantly since the injury. His conjunctiva were normal, as were the fundi, and there was no associated diagnosis. It was noted that he had a history of skin burns in Korea without residuals. On private evaluation apparently in December 1983, the Veteran's visual acuity was 20/30 with glasses. His pupils were equal and reactive to light, and his discs were sharp with slight arteriolar narrowing and nicking. On October 1993 VA evaluation, the Veteran complained of dry eye irritation and shooting pains in the left eye, of 43 years' duration. The examiner observed decreased tear break-up and mild blepharitis. In January 1994, a private physician indicated that it was undetermined whether dry eye was a direct result of a glandular function caused by war trauma, but that the possibility existed. On private evaluation in July 1999, cataract, dry eye syndrome, epiphora, conjunctivitis, and pingueculae were diagnosed. Chronic open angle glaucoma suspect was also reported. In June 2000, a private physician diagnosed the Veteran with spontaneous subcutaneal hematoma of the left eye, dry eye syndrome, and early pterygium and pingueculae. On VA evaluation in April 2002, the Veteran complained of chronic bilateral eye irritation, and diminished visual acuity bilaterally. In March 2003, the Veteran indicated that he had burns on his face in service and that the film that covers his eyes was destroyed. In September 2004, a private physician indicated that it was undetermined but possible that the Veteran's dry eye was a direct result of a glandular dysfunction caused by his war injury. An August 2006 VA medical record reports chronic dry eyes and cataracts. An October 2006 VA medical record reports an assessment of chronic dry eye bilaterally, status post facial trauma/burns during war. The Veteran had advised that he experienced an explosion to his face during war, and had had chronic pain/dryness since. On private evaluation in February 2007, the doctor was asked whether the Veteran's eye redness, pain, and tearing were due to the explosion in service, and the doctor responded that from what he could see, they were not from prior injuries. It was a low possibility that it was from an old injury. His eyes looked like those of any aging person. This doctor wrote a note on a prescription form that day that there was a possibility that the reason the Veteran has dry skin and irritation around the eyes could be due to the old injury from the steam explosion. During the Veteran's March 2007 VA RO hearing, he testified that his eyes were damaged due to the injury in service and that he had symptoms including watering and irritation after service that never stopped. A VA examiner reviewed the Veteran's claims folder and examined him in July 2010 and amended the July 2010 report in October 2010. The examiner noted service findings, including following an in-service November 1950 occurrence of 1st and 2nd degree burns to the Veteran's face in November 1950, and post-service findings, medical reports, and statements from the Veteran. The examiner stated that clinical records contradicted the February 2007 private opinion. After doing so, the examiner concluded that the Veteran currently had early cataracts, complaints of dry eyes, refractive error, a right eye subconjunctival hemorrhage, and slight pigmentation of the upper lid of the left eye. The examiner stated that given the multitude of normal examinations immediately after the injury and 43 years of no complaints or treatment, none of these conditions could be even remotely causally related to incidents in service, including the documented November 1950 burn injury. The Board sought a Veterans Health Administration (VHA) medical opinion in July 2011, noting that the examiner in 2010 had not based her opinion on a careful review of the claims folder. An August 2011 VHA medical opinion ensued. The VHA examiner noted the nature of the in-service injury as described by available service treatment records and statements from the Veteran, and post-service treatment reports, and concluded that the medical information available was consistent with a mild to moderate second degree burn. He noted a November 9, 1950 service treatment record note which indicated that the Veteran's eyes were satisfactory and that his burns were healed. He also noted that there were normal findings on service discharge examination in January 1952, and privately in December 1960, and that a later private medical record reported that there was no scarring. He noted that an April 1950 service treatment record mentioned tearing associated with an upper respiratory infection, but indicated that this was not significant as the association between the two was very common. He also did not feel that the bluish discoloration noted in 1960 was in any way associated with the complaints of eye discomfort or pain or injury. He noted that a July 1999 private medical record noted subcutaneous hemorrhage (bruise) near the left eye, but indicated that this was rarely an indication of pathology. He noted that pingueculae had been noted on eye examinations in December 1960, September 1993, August 1996, and July 1999, but that he did not feel that they were an ongoing source of irritation or disability, as they usually were not. He noted an April 1996 note of a pterygium, but no mention of it in August or October 1996, and indicated that pterygium if in fact present does not appear to be an ongoing source of irritation or disability. He indicated that since then, the Veteran had been seen on numerous occasions for eye complaints, mostly irritation and pain. Examinations had found evidence of a tear film deficiency, most commonly referred to as dry eye syndrome, and blepharitis. He indicated that both of these conditions are exceedingly common, and rarely due to injury unless caustic chemicals are involved. He reported that the constituents of a normal tear film comprise the products of the meibomian glands, goblet cells, and the lacrimal gland, and that none of these are located on the skin. The meibomian glands are located on the inner portion of the eyelid margin, posterior to the lashes, and the goblet cells are components of the mucous membrane portion of the conjunctiva that covers the eyeball and inside of the eyelids. The lacrimal gland is tucked away and well protected behind the superior lateral rim of the orbit. In order to destroy significant numbers of these glands, one would have to suffer a horrible thermal burn. Rehabilitation would take months, not days or a few weeks. Signs would be obvious with scarring of the lids and the lid margins, absent or misdirected lashes, and cicatrization of the conjunctiva. He noted that there was no mention of these findings in the notes, and that most of the eye examinations did not mention any significant objective findings, such as redness or corneal staining. He stated that blepharitis and meibomianitis are also diagnosed on some encounters, but that both are very common disorders of the eyelid margins and are not secondary to injury. Both aggravate symptoms of a tear film deficiency and sometimes contribute to the deficiency. Regarding January 1994 and February 2007 statements that dry eye could be caused by war trauma, and that there was a possibility that dry skin and irritation around the eyes could be due to old injury from a steam explosion, he felt that these statements were inconsistent with the bulk of the information in the record. He could not imagine a scenario that would destroy significant amounts of the tear-producing anatomy while causing so little damage that no scarring had been detected on numerous subsequent examinations. He concluded that the record shows that the Veteran has irritation and discomfort due to a mild tear film deficiency which is at times aggravated by blepharitis. His opinion was that the injury in 1950 was not responsible for the subsequent problems with blepharitis or dry eye syndrome, also known as tear film deficiency. This was based on the fact that a severe thermal injury would be required to compromise the tear-producing tissue and the lack of evidence that such an injury occurred, including as manifest by the rapid recovery from the injury, the initial description of it as first and second degree burns, the lack of any documentation of findings consistent with a previous severe injury causing scarring of the eye or eyelids in any of the numerous eye examinations of record, and the very common occurrence of tear film deficiency and blepharitis in the general population. Based on the evidence, the Board concludes that service connection is not warranted for eye disability. First, any refractive error which the Veteran currently has, including presbyopia, cannot be service-connected, as it is not considered to be a disease or injury under VA compensation law. 38 C.F.R. § 3.303(c). As for other eye disabilities which are currently shown, the preponderance of the evidence indicates that they were not manifest in service and are unrelated to service. They are not shown in service treatment records and no medical evidence indicates that they are at least as likely as not related to service. The examiner in October 2010 indicated that blepharitis, dry eye, cataracts, and a subconjunctival hemorrhage would not be related to service. The VHA examiner in August 2011 agreed that blepharitis and dry eye syndrome were not related to service, and gave detailed reasons for such opinion based upon his medical knowledge and citation to evidence in the claims folder supporting his conclusions. Also, slight pigmentation of the upper left eyelid, and any current pingueculae, pterygium, and meibomianitis were not shown in service and instead were first shown many years after service. Physicians have said over the years that some of the Veteran's eye problems may be related to service, but they have not indicated with any degree of certainty that any of them are. Accordingly, such opinions are of no probative value. See Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992) and ZN v. Brown, 6 Vet.App. 183 (1994) ('may or may not' opinion in Tirpak held as not fulfilling the nexus to service requirement). The Veteran himself indicated in June 2006 that he firmly believed that an eye disorder was incurred in service. However, since he is a layperson, his opinion as to this medical matter is not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Derwinski, 5 Vet. App. 91, 93 (1993). Moreover, while the Veteran asserts that current eye disabilities have continued since service, the preponderance of the evidence indicates that this is not the case. They were not reported in service treatment records or on service discharge examination in January 1952, or for years post-service. The first indication of any eye disability post-service (pingueculae and left eyelid discoloration) was in 1960, when the Veteran indicated that his eyes were now bothering him, and the next relevant notation was in February 1973, for different eye complaints. The Veteran reported pain with lacrimation since 1952 in November 1974, but this is undermined by earlier silence as to complaints or findings regarding lacrimation problems, except in service when the Veteran had complaints of excessive left eye watering which was associated with an upper respiratory infection. In light of the above, the Board finds that the Veteran's assertions of continuity since service are not credible, and so they cannot serve to support his claim. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for eye disability is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs