Citation Nr: 1304590	
Decision Date: 02/08/13    Archive Date: 02/19/13

DOCKET NO.  09-23 447A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for residuals of a left eye injury with secondary glaucoma.  

2.  Entitlement to service connection for nosebleeds.  

3.   Entitlement to service connection for gum disease/tooth decay.  


ATTORNEY FOR THE BOARD

Kristi L. Gunn, Counsel



INTRODUCTION

The Veteran served on active duty from September 1991 to February 1992.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from August 2007 and September 2009 decisions of the Department of Veterans Affairs (VA) Regional Office (RO).  

The claims of entitlement to service connection for nosebleeds and gum disease/tooth decay require further development before being decided on appeal, so the Board is remanding these claims to the RO via the Appeals Management Center (AMC) in Washington, DC.


FINDING OF FACT

The most probative (meaning competent and credible) medical and other evidence of record indicates the Veteran does not have left eye disability, including glaucoma, attributable to his military service and specifically the result of the basketball-related injury he sustained during his service.


CONCLUSION OF LAW

The Veteran does not have chronic residuals of a left eye injury, including secondary glaucoma, due to disease or injury incurred in or aggravated by his active military service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012).  



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Duties to Notify and Assist

The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law in November 2000.  The VCAA was codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107.  To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA and its implementing regulations include, upon the submission of a complete or substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate the claim, including apprising him of his and VA's respective responsibilities in obtaining this supporting evidence.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, they define the obligation of VA with respect to its duty to assist him in obtaining this evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

Ideally, VCAA notice should address all elements of a claim for service connection, so including the "downstream" disability rating and effective date elements.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom., Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Also, ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  


In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U. S. Supreme Court made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing this error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim.

Regarding this claim at issue for service connection for residuals of a left eye injury with secondary glaucoma, the RO sent the Veteran a VCAA notice letter concerning this claim in February 2007, so prior to initially adjudicating this claim in August 2007, therefore in the preferred sequence.  The letter discussed the type of evidence and information needed to substantiate this claim, including the division of responsibility between him and VA in obtaining this supporting evidence, and provided the general criteria for assigning a "downstream" disability rating and effective date in the event service connection eventually is granted.  So he has received all required notice concerning this claim.

VA also fulfilled its duty to assist him with this claim by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993).  To this end, the RO obtained his service treatment records (STRs), VA outpatient treatment records, and private treatment records.  

For this claim, a VA compensation and pension examination (C&P exam) was arranged in February 2012 and provided on contract by QTC Medical Services.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  The report of this examination provides the information needed for deciding this claim as it addresses the salient question of the whether the Veteran has a current left eye disorder and, if so, whether it is related or attributable to his military service, including especially to the type of trauma alleged.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one).  

The Veteran has received all essential notice, has had a meaningful opportunity to participate effectively in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004).  It is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claim.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran). 

In deciding this claim, the Board has reviewed all of the relevant evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).  

II.  Analysis

The Veteran asserts that his left eye injury with secondary glaucoma was incurred in service.  In February 2007 and January 2008 statements, he explained that during his service, between September 1991 and February 1992, while playing basketball, he was pushed by a fellow airman while running for the ball.  The Veteran alleges his left eye hit a fence pole, causing injury to this eye and consequently requiring emergency medical treatment after that incident.  He adds, since that injury to this eye in service, he has experienced continual pain, redness, swelling, burning, eyelid jumping, halos around lights, and headaches.  He therefore believes this is a service-connected disability.  

Service connection may be granted if it is shown the Veteran suffers from a disability resulting from an injury sustained or a disease contracted in the line of duty during his active military service, or for aggravation during service of a 
pre-existing condition beyond its natural progression.  38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303(a), 3.306.  

To establish entitlement to service connection, there generally must be:  (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

If chronicity (permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to establish chronicity (permanency) of disease or injury in service to, in turn, link current disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology" under 38 C.F.R. § 3.303(b).  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Continuity of symptomatology may be established if a claimant can demonstrate:  (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing entitlement to service connection).

To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required.  38 C.F.R. § 3.303(b).  Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  Id.  

In-service notation of a condition does not require medical evidence where "the condition is of a type as to which a lay person's observation is competent."  Savage, 10 Vet. App. at 497.  However, although prong (3) does not require medical nexus evidence, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent."  Id (citations omitted).

A layperson is generally incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom.  Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).  However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, etc.), (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.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  So in certain instances lay evidence has been found to be competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).


This is not always the case, however, as in certain other instances laypersons have not been found to be competent to provide evidence in more complex medical situations, such as concerning a form of cancer.  See also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

When this occurs, there must be supporting medical evidence.  Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

In essence, then, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  See also 38 C.F.R. § 3.159(a)(2).  A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation).  Savage, 10 Vet. App. 488, 494-97.  

When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).

Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records).  But see, too, Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (indicating that, for non-combat Veterans providing non-medical related testimony regarding an event during service (or where the incident, event, injury or disease in question is not claimed to have occurred in combat), Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements).

A Veteran is competent to report what he/she can observe and feel through the senses.  See Layno.  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

But once evidence is determined to be competent, the Board must additionally determine whether the evidence also is credible, as only then does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("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) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).

In ultimately rendering a decision on appeal, the Board must analyze the competency, then credibility, and consequent probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases 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).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the Veteran's Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is satisfactory (meaning both competent and credible), the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

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

The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 3.102.

Turning now to the facts of this specific case.  Regarding the first requirement for service connection, there is no disputing the Veteran has a left eye disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  In the absence of this proof, there could be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed).  Records show that, in May 2004, a private physician suspected the Veteran had glaucoma.  Additionally, a VA outpatient treatment record more recentlyl dated in March 2011 reflects a diagnosis of glaucoma suspect in both eyes, and a February 2012 VA examiner in his diagnosis confirmed the Veteran has 
open-angle glaucoma.  So the fact that he has a left eye disability is not in question. 


Hence, resolution of this appeal instead ultimately turns on whether this left eye disability is attributable to his military service, including especially to the trauma he alleges he sustained to this eye in this basketball incident.  Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998).  And, unfortunately, it is in this equally critical respect that the most probative evidence is against his claim.  

His STRs confirm he received emergency care and treatment in February 1992 after hitting a fence while playing basketball.  It was observed that he had a consequent cut on his left eyebrow.  He was diagnosed with a laceration and returned to full duty afterwards.  There was no subsequent mention of any symptoms referable to this eye for the remainder of his service, including as a residual of that injury.  So while there is no disputing he sustained potentially relevant trauma during his service while playing basketball, it still has to be shown that his current left eye disability is a result or consequence of that basketball injury in service, as opposed to other unrelated factors, to warrant the granting of service connection.  And although, as mentioned, medical evidence is not always or categorically required to establish this cause-and-effect correlation or linkage, it is when, as here, the particular condition at issue is not a "simple" condition, so not readily amenable to mere lay diagnosis or probative comment or opinion regarding its etiology.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  See also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic fever).

Indeed, it was not until some 12 years later in May 2004 that there was any objective indication or confirmation of a left eye disability, namely, glaucoma, which, while not in and of itself dispositive of the claim, nonetheless is probative evidence against the notion that this current left eye disability dates back to the Veteran's military service or is related or attributable to the injury he sustained during his service while playing basketball.  See Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability); Mense v. Derwinski, 1 Vet. App. 354 (1991) (similarly holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period for which there was no clinical documentation of the claimed disorder).

The post-service treatment records reflect a diagnosis of glaucoma suspect beginning in May 2004.  However, in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since (so including during intervening years after service before an initial 
post-service diagnosis), even where not corroborated by contemporaneous medical evidence such as actual treatment records.  See, too, Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence).  But the Court in Buchanan went on to indicate that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence, to determine its ultimate probative value in relation to other items of evidence.  The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). 

During the course of this appeal, the Veteran has given two different, so varying, versions of the incident in service that he claims resulted in a left eye injury with secondary glaucoma.  The first being the basketball incident, and the second being a machine gun round exploding near his left upper eyelid.  See the February 2012 examination report.  These inconsistencies in the record tend to undermine his credibility.  See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service).

In Harvey v. Brown, 6 Vet. App. 390, 394 (1994), the Court upheld a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements years later asserting different etiology.  Also, in Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), the Federal Circuit Court upheld a Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later.  See also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).  And while it is indeed true the Board cannot summarily discount the credibility of his lay testimony merely because he has an interest in the outcome of this adjudication, it is entirely permissible for the Board to consider his self-interest as a factor in determining whether his lay testimony is credible.  See Pond v. West, 12 Vet. App. 341 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).

The Board has weighed his statements as to continuity of symptomatology since service and finds his current recollections and statements made in connection with this present claim for VA compensation benefits are of lesser probative value than his previous, more contemporaneous, in-service history and findings at service separation, also because of the absence of any relevant complaints (meaning pertinent symptoms, etc.) for so many years after the conclusion of his service, and his previous statements made for treatment purposes that gave different histories and etiologies.


In a July 2009 supporting medical statement, a private doctor, S.V., M.D., opined that based on the Veteran's STRs and observing his left eye and side effects, his direct blow in service while playing basketball and subsequent laceration contributed to his current left eye disability.  So there at least is this suggestion his current left eye disability may be attributable to or associated with that injury during his military service.  This doctor did not offer any explanation or supporting rationale for his opinion, however, and this is where most of the probative value of an opinion is derived.  In Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court held that a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two."  
Neives-Rodriguez, at 301.  According to the holdings in Neives-Rodriguez, in determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  To reiterate, most of the probative value of a medical opinion comes from its underlying reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304.  A medical opinion is considered adequate, versus inadequate, when it is based upon consideration of the Veteran's prior medical history and examinations and describes the disability in sufficient detail so the Board's evaluation of the disability will be fully informed and permit the Board to weigh the probative value of the opinion against others.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  

And to be adequate, a medical opinion must do more than merely state a conclusion regarding the etiology of the claimed disorder, instead, must also support the conclusion with sufficient rationale and explanation.  Stefl, 21 Vet. App. at 124.  The probative value of an opinion is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [the] opinion."  Bloom v. West, 12 Vet. App. 185, 187 (1999).

In Mariano v. Principi, 17 Vet. App. 305 (2003), the Court indicated it would not be permissible for VA to undertake additional development of a claim if the sole purpose was to obtain evidence against the Veteran's claim.  Mariano, at 312.  But in Douglas v. Shinseki, 23 Vet. App. 19 (2009), the Court distinguished it holding in Mariano.  In Douglas, the Court acknowledged its decision in Mariano, but held that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim.  Douglas, at 26.

Thus, because of these inadequacies in the private doctor's opinion, the RO scheduled the Veteran for a VA compensation examination through QTC Services in February 2012 for additional medical comment on this determinative issue of whether his basketball injury in service or other trauma in service caused or contributed to his current left eye disability.  During the examination he recounted a laceration to his left upper eyelid during service after a machine gun round exploded causing injury.  He indicated the laceration healed without complication, and that he was diagnosed with glaucoma in 2005 (also keeping in mind doctors first suspected it in 2003/2004).  After objective physical examination of this eye, the examiner diagnosed open-angle glaucoma and left eyebrow laceration.  The examiner ultimately concluded, however, that the Veteran's current left eye disability was less likely than not incurred in or caused by the claimed basketball injury in service.  The examiner explained that the relatively minor laceration of the left eyebrow in February 1992 had healed without sequelae, meaning without any residual disability, and that there is no mention of glaucoma in the records until 2003.  Additionally, the examiner indicated the laceration occurred only to the left eyelid and not the eye, itself, and that the glaucoma is bilateral, meaning affecting both eyes, so not just the left eye in particular that was injured in service.  

This examiner therefore determined there is no connection between the 1992 event in service and the onset or progression of the Veteran's glaucoma.  In providing this opinion, the examiner indicated that, while he did not review the Veteran's VA claims file, he reviewed military STRs, military service personnel records, the report of the Veteran's military enlistment examination, his DD Form 214, his VA treatment records, and his civilian medical records.  

It thus appears that both the private physician, Dr. S.V., and the February 2012 VA examiner did not review the Veteran's claims file.  But as the Court explained in Neives-Rodriguez, review of the claims file is not determinative or dispositive of a medical opinion's probative value.  See also VAOGCPREC 20-95 (July 14, 1995) (also indicating that review of the claims file is not always required.  VA must review a claimant's prior medical records only when such a review is necessary to ensure a fully informed examination or to provide an adequate basis for the examiner's findings and conclusions).

In Elkins v. Brown, 5 Vet. App. 474, 478 (1993), the Court rejected a medical opinion as "immaterial" where there was no indication the physician had reviewed the claimant's STRs or any other relevant documents that would have enabled him to form an opinion on service connection on an independent basis.  See also Swann v. Brown, 5 Vet. App. 177, 180 (1993) (without a review of the claims file, an opinion as to etiology of an underlying disorder can be no better than the facts alleged by the Veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant).  

But in a later decision, Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the Court indicated the Board may not disregard a favorable medical opinion solely on the rationale it was based on a history given by the Veteran.  Rather, as the Court further explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility.  

In the even more precedent decision of Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009), the Court discusses, in great detail, how to assess the probative weight of medical opinions and the value of reviewing the claims folder.  The Court holds that claims file review, as it pertains to obtaining an overview of the claimant's medical history, is not a requirement for private medical opinions.  The Court added, "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."  In the Neives-Rodriguez decision, the Court vacated the Board's decision because the Board had dismissed one of the two favorable private medical opinions solely on the basis that the physician had not reviewed the claims folder, without an explanation of why that failure had compromised the value of the medical opinion.  By contrast, the Court held that, in rejecting the other private medical opinion, the Board had offered adequate reasons and bases for doing so (the doctor had overlooked pertinent reports regarding the Veteran's medical history), and thus, the Board's rejection was not based solely on the failure to completely review the claims file.  

In this particular case at hand, the problem with Dr. S.V.'s private medical opinion is that there is no rationale in support of the favorable opinion.  The Court in Nieves-Rodriguez held that most of the probative value of a medical opinion comes from its reasoning.  Id. at 304.  "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connected or rating context if it contains only data and conclusions."  Id., citing Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); see also Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)).  


The February 2012 examiner's medical opinion is much more probative in comparison.  While, as noted above, a medical opinion may not be discounted solely because the physician did not review the claims file, critical pieces of information from a claimant's medical history can lend credence to the opinion of the medical expert who considers them and, conversely, detract from the medical opinions of experts who do not.  Nieves-Rodriguez, 22 Vet. App. at 304.  In this instance, it is significant that the VA examiner, while admittedly not reviewing the claims file, per se, in a pejorative sense, nevertheless reviewed the most relevant evidence - namely, the STRs and post-service treatment records, and yet found that the Veteran's glaucoma was unrelated to his basketball injury in service, in February 1992.  The February 2012 VA examiner's opinion is based on an accurate history, including especially the necessary facts such as those concerning the circumstances of that injury in service and what occurred in the immediate aftermath of it, including in the course of the Veteran's evaluation and treatment and as concerning the specific complaints he had and the specific objective findings that were noted.  This opinion is consistent with the evidence in the claims file and contains supportive rationale for the conclusion ultimately reached.  Thus, the Board finds that the February 2012 medical opinion is most probative of the determinative issue of causation, and because it is unfavorable to the claim, service connection for residuals of a left eye injury with secondary glaucoma must be denied.  The benefit-of-the-doubt rule is inapplicable when, as here, the preponderance of the evidence is against the claim.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).


ORDER

The claim for service connection for residuals of a left eye injury with secondary glaucoma is denied.  



REMAND

As concerning the remaining claims that are also at issue in this appeal, by way of procedural background, the Veteran filed informal claims for service connection for nosebleeds and gum disease/tooth decay in September 2009.  In a September 2009 rating decision, the RO denied service connection for nosebleeds and gum disease/tooth decay.  In April 2010, in response, he submitted a timely notice of disagreement (NOD) regarding the denials of these claims for service connection for nosebleeds and gum disease/tooth decay.  He has not been provided an SOC concerning these claims, however.  The Court has held that, where the record contains an NOD as to an issue, but no SOC, the issue must be remanded (rather than merely referred) to the agency of original jurisdiction (AOJ), which, here, is the RO, to provide the Veteran this necessary SOC and to give him an opportunity, in response, to complete the steps necessary to perfect his appeal of the claim by also filing a timely substantive appeal (VA Form 9 or equivalent statement).  See Manlicon v. West, 12 Vet. App. 238 (1999).  

Accordingly, these remaining claims are REMANDED for the following additional development and consideration:

Provide the Veteran an SOC concerning his claims of entitlement to service connection for nosebleeds and gum disease/tooth decay.  Also advise him that he still needs to file a substantive appeal (VA Form 9 or equivalent statement) concerning these claims, in response to this SOC, to complete the steps necessary to perfect his appeal of these claims to the Board.  See 38 C.F.R. §§ 20.200, 20.202, 20.300, 20.301, etc.  As well, advise him of the amount of time he has for doing this.  38 C.F.R. §§ 20.302, 20.303, 20.304, 20.305, and 20.306.  Only if he perfects his appeal of these claims should they be returned to the Board for further appellate consideration.

By this remand, the Board intimates no opinion as to any final outcome warranted concerning these remaining claims.  No action is required of the Veteran until he is notified by VA.  He has the right to submit additional evidence and argument concerning these claims the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs