Citation Nr: 1304289 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 08-28 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for bilateral glaucoma. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active duty from January 1980 to May 1982, with multiple periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2009 by the undersigned. A transcript is associated with the claims file. In April 2011, the Board remanded this claim for additional development. That development having been completed, the claim is now ready for appellate review. FINDING OF FACT The probative evidence of record does not show that the Veteran's bilateral glaucoma is etiologically related to a period of active duty or was diagnosed during a period of active duty for training. CONCLUSION OF LAW Bilateral glaucoma was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 101(24), 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant 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). The notice requirements of the VCAA require VA to notify the claimant 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 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (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). Such 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). Moreover, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (reaffirming that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In June 2007 and May 2011 VCAA letters, the RO/AMC provided notice to the Veteran regarding what information and evidence is needed to substantiate the claim as well as what information and evidence must be submitted by the Veteran and the types of evidence that will be obtained by VA. The 2011 VCAA letter specifically advised the Veteran how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. The Veteran's claim was last readjudicated in a supplemental statement of the case issued in October 2012. The Board finds that VA's duty to notify has been met. The record also reflects that VA has made reasonable efforts to assist the Veteran in the development of her claim. Specifically, the information and evidence that have been associated with the claims file includes service and reserve treatment records and service and reserve personnel records. The Veteran has not been afforded a VA examination because as detailed below, the Veteran does not have service that would permit a grant of service connection for bilateral glaucoma. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate her claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. The Veteran was an active participant in the claims process, identifying relevant records, and providing testimony setting forth her contentions. Thus, she has been provided with a meaningful opportunity to participate in the claims process and has done so. The Board finds that VA's duty to assist has been met. Also, the Board finds that there has been substantial compliance with the directives of the April 2011 Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. Entitlement to Service Connection for Bilateral Glaucoma The Veteran is seeking entitlement to service connection for bilateral glaucoma. She asserts she experienced symptoms during service and was diagnosed during active service. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The term "active military service" includes active duty or any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, or any period of inactive duty for training (INACDUTRA) during which a disability resulted from an injury [but not disease] incurred during that INACDUTRA. Generally, in order to prevail on the issue of service connection on the merits, there must be: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Furthermore, in determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 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). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Further, 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). As an initial matter, medical records indicate the Veteran is diagnosed with bilateral glaucoma. See June 2011 private physician note. The Board therefore finds that the evidence demonstrates a present disability, meeting the first requirement for the establishment of service connection. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). As for the second requirement for service connection, that a disease or injury was incurred or aggravated during service, reserve personnel records indicate that the Veteran served on several periods of ACDUTRA. For example, the Veteran had AT/ACDUTRA from January 6, 1997 to January 19, 1997, August 12, 1997 to August 31, 1997, the month of June 1998, May 10, 1999 to May 19, 1999. Reserve medical records show that a July 22, 1999 record noted an assessment of glaucoma suspect. It was reported that the Veteran was diagnosed with glaucoma last year but was not taking any medications. A July 23, 1999 record noted an assessment of glaucoma. A July 24, 1999 Report of Medical Examation noted that the Veteran had a history of glaucoma. July 28, 1999 and August 13, 1999 records noted assessments of glaucoma suspect. A November 11, 1999 letter from Tulane University Medical Center noted that the Veteran had chronic open-angle glaucoma. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, there is no dispute that Veteran is competent to report symptoms of dizziness and problems with vision because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Indeed, in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. During the August 2009 Hearing, the Veteran testified that she experienced symptoms during service and that she was diagnosed while on ACDUTRA. While the Veteran is credible in her belief that she has the requisite service, her more probative personnel records show otherwise. The law is clear, the Veteran can only prevail if she is shown to have incurred the disease bilateral glaucoma during a period of ACDUTRA. The fact that the diagnosis coincided with service in the reserves is not enough. Personnel records show that the Veteran did not serve on a period of active duty or active duty for training in July 1999 or November 1999. In the absence of the requisite service, service connection for bilateral glaucoma cannot be established. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issue on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for bilateral glaucoma is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs