Citation Nr: 1307713 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 07-39 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a bilateral eye disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In February 2010, the Veteran testified at a Travel Board hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of this hearing is associated with the claims file. In April 2010, the Board remanded this case for further evidentiary development. In August 2012, the Board remanded this case for the Veteran to be scheduled for a new Travel Board hearing with a current Veterans Law Judge. In October 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present, there are no additional documents pertinent to this appeal in Virtual VA. FINDING OF FACT The Veteran's bilateral eye disability is causally related to his military service. CONCLUSION OF LAW The criteria for service connection for a bilateral eye disability have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the Board's favorable disposition to grant the claim for service connection for a bilateral eye disability, the Board finds that no discussion of VCAA compliance is necessary at this time; any notice defect or duty to assist failure is harmless. Pertinent Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). 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 include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d at 1372. 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). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, with respect to the claim. The Veteran contends that his current bilateral eye disability, presumed ocular histoplasmosis syndrome (POHS), is the result of being exposed to histoplasmosis spores from bird and bat droppings during the course of his infantry service in Vietnam, specifically while serving in the jungle and in caves, digging up graves, and living in filthy and unsanitary conditions. The Veteran's service treatment records do not document any complaints, findings, treatment, or diagnosis of a bilateral eye disability, nor do his service treatment records document any exposure to spores from bird and bat droppings. The Veteran's DD Form 214 shows that he served in Vietnam and received the Combat Infantryman Badge (CIB). Therefore, the Board notes the potential applicability of 38 U.S.C.A. § 1154(b). That statute states that for any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service, even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 2002). More than 34 years after his service discharge in September 1970, the Veteran sought private treatment from an eye doctor in November 2004 for seeing wavy lines and having blurriness and irritation in his left eye. At that time, it was noted that he had had no ocular complaints until approximately 15 years ago when straight lines looked wavy, and that he had seen a private eye doctor two times in the last 10 years. In December 2004 and January 2005, he underwent laser surgery on his left eye for blood vessel leakage. At a January 2005 private eye examination, the examiner noted that the Veteran had had a persistent scotoma in his left eye since his recent laser surgeries. Fundus examination revealed multiple small punched out chorioretinal scars in the periphery of both eyes, noted to be consistent with histoplasmosis. Such examination also revealed a serous detachment of the neurosensory retina, with a slight amount of subretinal hemorrhage remaining, in the left eye. Private treatment records dating since January 2005 document the assessment of POHS in both of the Veteran's eyes, as well as ongoing treatment for his decreasing vision in the left eye. At an April 2006 fee-basis VA eye examination by QTC Medical Services, the examiner diagnosed the Veteran with POHS, with loss of central visual acuity in the left eye. The Veteran submitted two Internet articles pertaining to POHS. The first article noted that histoplasmosis is a disease caused by a fungus found in soil (where bird and bat droppings have accumulated in places such as caves), and that the fungal spores can cause POHS in the eyes after they are inhaled into the lungs. The second article noted that histoplasmosis contamination is heaviest in areas near bodies of water and caves (where bird or bat droppings accumulate) and the spores are released into the air when soil is disturbed (by activities such as digging holes), and that scarring in the eyes from histoplasmosis can cause sight degeneration usually later in life. At his February 2010 Travel Board hearing, the Veteran testified that he did not have any problems with his eyes during active duty service, and that he first started having eye problems in 1995. He described his exposure in Vietnam to bird and bat droppings, particularly while serving in the jungle and in caves as well as while digging up graves. At a July 2010 VA eye examination, the examiner diagnosed the Veteran with POHS in both eyes with choroidal neovascular membrane in the left eye. The examiner noted that the Veteran had had significant loss of vision in his left eye and had lost depth perception because of this. The examiner stated that, while the condition did not manifest while the Veteran was in service, this condition can remain asymptomatic for years before causing vision loss. The examiner, citing from the Centers for Disease Control (CDC) website, noted that H. Capsulatum (the organism that causes POHS) has been described on every continent in the world except Antarctica. Therefore, based on the current examination, review of the claims file, and information from the CDC, the examiner opined that the Veteran's POHS is at least as likely as not related to his military service. In an August 2011 addendum, a second VA examiner (not the same one who examined the Veteran in July 2010) reviewed the claims file. The second examiner agreed with the first examiner's diagnosis of POHS in both of the Veteran's eyes, as well as agreed with the first examiner's note that H. Capsulatum is fairly ubiquitous and can be found on almost any continent and can remain inactive for many years and never cause vision loss (such as with the Veteran's right eye). However, the second examiner stated that there was no evidence in the claims file which shows that the Veteran had POHS while he was in the military service, and that it is unknown whether he got this before, during, or after his military service. Therefore, the second examiner opined that the Veteran's vision loss in the left eye is less likely than not related to his military service, and that the POHS in his right eye (which has not caused vision loss in that eye) is less likely than not related to his military service. At his October 2012 Travel Board hearing, the Veteran once again testified that he did not have any problems with his eyes during active duty service, and that he first started having eye problems in the mid-1990s. He described his exposure in Vietnam to bird and bat droppings, particularly while serving in the jungle and in caves as well as while digging up graves. Upon review of the record, the Board once again notes that the Veteran served in combat, and that he contends that his current bilateral eye disability of POHS resulted from exposure to histoplasmosis spores from bird and bat droppings during his infantry service in Vietnam. The Board finds the Veteran's testimony and statements regarding such in-service exposure to be consistent with his combat service and to be credible. See 38 U.S.C.A. § 1154(b). The competent medical evidence of record clearly documents that the Veteran has a current diagnosis of POHS in both eyes. In July 2010, a VA examiner opined that the Veteran's POHS is at least as likely as not related to his military service. In August 2011, a second VA examiner opined that the Veteran's vision loss in the left eye and the POHS in the right eye are less likely than not related to his military service. Under the "benefit-of-the-doubt"' rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached a stage of equipoise. In this case, the Board is of the opinion that this point has been attained. Therefore, given the medical and lay evidence outlined above, and after resolving all doubt in the Veteran's favor, the Board concludes that the Veteran's bilateral eye disability is causally related to his military service, and service connection for a bilateral eye disability is warranted. ORDER Entitlement to service connection for a bilateral eye disability is granted. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs