Citation Nr: 1305045 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-27 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for residuals of a right eye injury. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service in the U. S. Army from February 1964 to January 1967 and service in the New Jersey Army National Guard from September 1975 to December 1996. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Newark, New Jersey. At that time, the issue listed on appeal was whether new and material evidence had been received to reopen the previously denied claim of service connection for residuals of an eye injury, which had been denied in June 1995. The Veteran appeared at a Travel Board hearing at the RO before the undersigned Veterans Law Judge in November 2011. A transcript of the hearing is of record. Following the November 2011 hearing, the Board, in a June 2012 decision, found that new and material evidence had been received to reopen the previously denied claim of service connection for residuals of an eye injury. The Board remanded the newly reopened claim of service connection for residuals of an eye injury for further development, to include obtaining a VA examination. The requested development has been completed insofar as possible and the matter is now ready for appellate review. FINDING OF FACT The weight of the competent, probative and credible evidence does not establish that a current right eye disorder is of service origin. CONCLUSION OF LAW The criteria for service connection for residuals of a right eye injury have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Board notes that the Veteran's status has been substantiated. The Board observes that in a January 2009 letter, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The January 2009 letter provided the Veteran with notice as to the disability rating and effective date elements of the claim. VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All pertinent treatment records, service, VA, and private, have been obtained and associated with the claims folder insofar as possible. No other relevant records have been identified. As it relates to the claim of service connection for residuals of an eye injury, the Veteran was afforded a VA examination in July 2012 to determine the etiology of any current eye disorder. In addition to performing the examination, the examiner rendered an opinion as to whether any current eye disorder was related to the Veteran's period of service and provided rationale to support the opinion. The examination provided the necessary detail to properly assess the Veteran's claim. Thus, the examination was sufficient for VA rating purposes. See 38 C.F.R. § 4.2(2011); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative. The Veteran also appeared at a Travel Board hearing before the undersigned Veterans Law Judge in November 2011 in support of his claim. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Residuals of an Eye Injury 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; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). 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 Hickson v. West, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. See Grover v. West, 12 Vet. App. 109, 112 (1999). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The Board may not reject the credibility of a veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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"). Service connection may 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). VA regulations provide that refractive error of the eyes are not diseases or injuries within in the meaning of applicable legislation for disability compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2012); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Hyperopia is that error of refraction in which rays of light entering the eye parallel to the optic axis are brought to a focus behind the retina, as a result of the eyeball being to short from front to back ... Called also farsightedness and hypermetropia." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 797 (28th ed. 1994). A review of the Veteran's service treatment records reveals that he was seen in October 1965 with complaints of blurry vision after a long period of reading. There was no ocular pain or discharge. Physical examination revealed no conjunctival symptoms. Vision was noted to be 20/20, bilaterally. At the time of the Veteran's December 6, 1966, service separation examination, normal findings were reported for the eyes. The Veteran was found to have 20/20 vision, bilaterally. On his December 1966 service separation report of medical history, the Veteran checked the "no" box when asked if he had or had ever had eye trouble. Subsequent to his service separation examination but prior to his release, the Veteran was jumped in the field on December 8, 1966. He was noted to have sustained damage to the right eye with what looked like damage to the conjunctiva with hemorrhage. An ophthalmological consult performed later that day revealed a "scratch" type injury to the right eye. Following examination, the examiner rendered a diagnosis of corneal, conjunctival trauma. At the time of a December 22, 1966, follow-up visit, the Veteran's cornea was noted to be clear with much improvement. No further treatment was reported. There is no record of treatment for right eye problems in the years immediately following service. At the time of the Veteran's September 1975 New Jersey National Guard enlistment examination, normal findings were reported for the eyes, with vision being recorded as 20/20, bilaterally. On his September 1975 enlistment report of medical history, the Veteran checked the "no" box when asked if he had or had ever had trouble with his eyes. In May 1994, the Veteran was seen with complaints of "blurred vision" for about a year. The examiner noted that the Veteran reported that while in Germany in 1966 he was "hurt" in both eyes due to a fall and was treated in Germany. Physical examination revealed no conjunctival or corneal congestions. There were no exudates. EOMs and fields of confrontation were intact. The Veteran was noted to have 20/20 vision, bilaterally. It was the examiner's impression that the Veteran had hypermetropia/R/O hypertension. At the time of his November 2009 Travel Board hearing, the Veteran indicated that he had a scar inside his right eye. His representative noted that the Veteran had been assaulted in service. Subsequent to the hearing, the Veteran submitted a private March 2010 ophthalmological report. The report is mostly illegible but suggested a current eye disorder that required a retinal scan. In June 2012, as noted above, the Board reopened the claim of service connection for residuals of a right eye injury and requested that the Veteran be afforded a VA examination to determine the etiology of any current right eye disorder and its relationship, if any, to his period of service. The examiner was to address the December 1966 eye injury. In conjunction with the remand, the Veteran was afforded a VA eye examination in July 2012. The examiner noted that the Veteran reported being attacked in service in 1966 and that his eye was hit during the attack. The Veteran stated that this occurred in 1966 and that he received treatment in service. The examiner noted that the Veteran was not sure which eye was hit. He observed that there was no history of eye surgery, pain, or loss of vision. The Veteran reported that his eye was blurry at times. The examiner indicated that he had reviewed the claims folder and noted that the Veteran sustained an injury to his right eye in December 1966. The diagnosis made at that time was corneal and conjunctival trauma. The Veteran's eye was patched and he was given ointment. Physical examination performed at the time of the July 2012 examination revealed visual acuity of 20/40, or better, bilaterally. The pupils were round and reactive to light and no pupillary defect was present. Slit lamp and external eye examination were normal. The Veteran was noted to have pinguecula, bilaterally. The cornea, anterior chamber, and iris were all normal. The Veteran was found to have cortical nuclear sclerosis (cataracts), bilaterally. The Veteran did not have scarring or disfigurement attributable to any eye condition. The examiner diagnosed the Veteran as having cataracts. Preoperative cataracts were found to be present in both eyes. The examiner opined that the cataract was not secondary to trauma from military service but was age-related. Service treatment records clearly show that the Veteran was seen for eye problems on several occasions in service. As to the October 1965 incident, at which time the Veteran was noted to have blurry vision, the Board notes that subsequent to this incident, normal findings were reported for the eyes, with the Veteran being found to have 20/20 vision, bilaterally, on his December 1966 separation examination and his checking the "no" box when asked if he had or had ever had eye trouble on his December 1966 service separation examination. The Board notes that subsequent to the December 1966 examination, the Veteran was hit in the head, with treatment records revealing that he was treated for corneal and conjunctival trauma following the incident on several occasions, with the cornea then reported as being clear with much improvement at the time a December 22, 1966 visit, with no further follow-up treatment. There are no further findings in service and no further complaints or findings of eye trouble in close proximity to the Veteran's period of service. Furthermore, at the time of the Veteran's September 1975 National Guard service enlistment examination, normal findings were reported for the eyes, with vision being recorded as 20/20, bilaterally, and the Veteran checking the "no" box on his enlistment report of medical history when asked if he had or had ever had eye trouble. There were also no findings of eyes problems in the "notes" section of the report of medical history. There were also no objective medical findings of eye problems contained in the record until many decades after service, the first notation being in May 1994, when the Veteran reported having had blurred vision for approximately one year. Therefore, the clinical evidence does not reflect continuity of symptomatology. The Board, however, must also consider the lay evidence of record in determining whether there is continuity of symptoms. The Board has considered the statements of the Veteran, noting that the Veteran is considered competent to report eye symptoms, because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, 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 determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept a veteran's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). In this case, the Board finds that the Veteran's reported history of continued symptomatology since active service, if that is what he is indeed claiming, while competent, is not sufficiently credible to establish that the eye problems he experienced in service had continued since that time. It is not disputed that the Veteran had eye problems during service following the December 1966 assault. However, the eye was noted to be much improved two weeks afterwards, with no complaints or notations of treatment during the remaining period of service. Furthermore, the Veteran denied having any eye problems on his September 1975 National Guard enlistment report of medical history, which was confirmed by normal vision and eye findings on his enlistment examination. While the Veteran reported having sustained an eye injury in service at the time of his May 1994 visit, he stated at that time that his eye problems had only been of one years duration. Moreover, treatment records obtained in conjunction with the Veteran's claim do not reveal treatment for eye problems until decades after service. The multi-year gap between the Veteran's inservice eye problems and the first objective medical findings of eye problems following service is another factor which weighs against the Veteran's contention that eye problems originated in service and continued for a number of years thereafter. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for benefits to be of lesser probative value due to their inconsistency and the conflicting contemporaneous records. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). Therefore, continuity has not been established, either through the competent evidence or through the Veteran's statements. In this case, there is also no evidence that the Veteran is medically qualified to render an opinion as to the etiology of any current eye disorder. Consequently, his statements as to the diagnosis and etiology of the claimed condition, without some form of objective medical corroboration, are not competent and are not probative. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board is placing significant probative value on the June 2012 VA examiner's opinion that the Veteran's diagnosed cataracts were not secondary to trauma from military service but were age-related. Specifically, the Board is particularly persuaded to assign great probative weight to this medical opinion because the VA examiner had the entire claims file for review and provided a solid rationale for his conclusions that was grounded in the evidence of record. Moreover, no medical opinion of record has been presented that in any way contradicts the conclusions of the examiner. As such, there is no basis for direct service connection. With regard to the May 1994 finding of hypermetropia, in addition to not being found at the time of the most recent examination, a refractive error such as this would not be a disease or injury within in the meaning of applicable legislation for disability compensation purposes. Based upon the above, the preponderance of the evidence is against the claim. For all these reasons, the Veteran's claim for entitlement to service connection for residuals of a right eye injury, is denied. ORDER Service connection for residuals of a right eye injury is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs