Citation Nr: 1308440 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 12-00 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for an eye disability, to include defective vision, dry eye syndrome, and residuals of cataracts. ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from July 1943 to November 1945, during World War II. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied the benefit sought on appeal. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. In light of Clemons, and the medical and lay evidence of record, the Veteran's claim for service connection for defective vision has been expanded and recharacterized as a claim for service connection for an eye disability, to include defective vision, dry eye syndrome, and residuals of cataracts, as reflected on the cover page. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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. Cataracts and/or defective vision and dry eye syndrome and/or residuals of a tear duct injury did not have their onset during active service and are not related to any incident of active duty service. 2. A corneal scar of the right eye is related to an incident of active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for cataracts and/or defective vision and dry eye syndrome and/or residuals of a tear duct injury are not met. 38 U.S.C.A. §§ 1101, 1110, 5107, 1154(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for service connection for a corneal scar of the right eye are met. 38 U.S.C.A. §§ 1101, 1110, 5107, 1154(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). A March 2011 pre-adjudication letter explained the evidence necessary to substantiate a claim for service connection. The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The Veteran was also notified of how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). The claims file contains service treatment records (STRs), private treatment records identified by the Veteran, and the reports of a March 2011 VA examination and a December 2012 DBQ (Disability Benefits Questionnaire). VA has a duty to ensure that its examinations or opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As the December 2012 report reflects review of the claims file and assessment of the Veteran's contentions and disabilities, the report is adequate. The duty to assist in the gathering of records and a VA examination has been met and the RO/AMC has substantially completed the November 2012 remand directives by obtaining private treatment records from Dr. Glassman and affording the Veteran an ophthalmologic examination. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Merits of the Claim The Veteran contends that he suffers from defective vision and other eye problems as a result of his active service. He specifically contends that debris from an explosion hit him in the eyes during his service, resulting in his suffering from blurred vision for period of time. He has additionally reported that as a result of the incident, he suffered from a black eye and was also required to use an eye patch. He contends that although his vision somewhat improved afterward, he has had defective vision since the time of the in-service incident. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 2013 WL 628429, at *4 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard. See Walker, 2013 WL 628429, at *15 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show 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." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, 2013 WL 628429, at *9. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Significantly, the Federal Circuit indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added). Id. at *14. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. at *13-14. Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required." Id. at *13; see also id. at *9-11, *15-16 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)). The Board must assess the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This evaluation generally involves a three-step inquiry. First, the Board must determine whether the evidence is competent. See, e.g. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Second, the Board must determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). Third, the Board must assess the probative value and weight of the evidence in light of the entire record. Gonzales, 218 F.3d at 1380-81. As observed by the Federal Circuit, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent. See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it). Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability. See Davidson, 581 F.3d at 1316. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy). For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity. See Barr, 21 Vet. App. at 309. For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Federal Circuit has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007). Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Id. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. Id. The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value. See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify."). The Board discounts the weight of evidence it finds not to be credible. See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). In determining whether statements submitted by a veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Further, the Federal Circuit has held that while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). In the case of any Veteran who engaged in combat with the enemy in active service, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service incurrence 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, and, to that end, every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, it is well to observe that these provisions deal with the question of whether a particular disease or injury occurred in service; that is, what happened then, and not the question of either current disability or nexus to service, as to both of which competent medical evidence is generally required. In other words, the above-cited provisions do not presumptively establish service connection for a combat Veteran; rather, they relax the evidentiary requirements for determining what happened in service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521, 524 (1996). The record reflects that the Veteran participated in action against the enemy. Resolving all reasonable doubt in the Veteran's favor, 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) are for application in this case. Specifically, the Veteran's personnel record reflects that his military occupational specialty was that of a telephone field man. With regard to "Battles, engagements, skirmishes, expeditions: participated in action against the enemy at consolidation of Northern Solomons from November 24, 1944 to March 3, 1945; Mindoro from March 20, 1945 to April 9, 1945; and Mindanao from April 17, 1945 to August 10, 1945." The Veteran's service treatment records (STRs) reveal that he was noted to have defective vision of the right eye on his November 1945 separation examination. His STRs do not, however, provide any indication that he suffered an injury to his eyes as a result of an in-service explosion. The Veteran has contended, however, that he only received treatment in the field from a corpsman. The post-service medical evidence of record reveals that the Veteran was treated by M. Glassman, M.D., at Northern Westchester Ophthalmology, from August 1997 to at least June 2010. In December 2010, Dr. Glassman provided a letter indicating that he had treated the Veteran since August 1997, and that his eye disabilities have included cataracts and dry eye syndrome. The treatment records dated from Dr. Glassman reflect, in part, that the Veteran had a history of floaters, wore glasses, cataracts, "OU tear in cold weather," "tearing worse in morning," and tearing from possible allergies. (See October 1999, February 2004, and June 2005 private treatment records from Dr. Glassman). The Veteran had phacoemulsification of the lens of the right eye and implantation of a posterior chamber intraocular lens in 2005. The Veteran has indicated that although he received ophthalmologic treatment from other doctors prior to Dr. Glassman, those doctors were now deceased. In a release form provided in December 2010, the Veteran indicated that he was encouraged to seek ophthalmologic treatment soon after his separation from service from a Dr. Denig, who is now deceased. He contends that Dr. Denig indicated that he may have injured his tear duct, presumably as a result of the in-service explosion. Records of treatment provided by Dr. Denig are not available. In connection with the Veteran's claim, he was afforded a VA eye examination in March 2011. During the examination, he reported that he had been involved in an explosion in 1945 during his service, and that although he was unsure if damage was done to his eyes, he has had "bad eyes" since that time. He additionally reported needing to wear a patch over one eye after the in-service incident. After examining the Veteran, the examiner concluded that there was no evidence of ocular injury causing impaired vision in either eye. Notably, however, the examiner did not specifically diagnose any eye disability and did not appear to consider the Veteran's contention that he may have damaged a tear duct, which possibly could have led to the later diagnosis of dry eye syndrome. Moreover, considering the Veteran's complaint of a continuity of defective vision symptomatology since his separation from service, the examiner did not appear to consider whether the Veteran had any other eye disability that could be attributed to his active service. Thus, the examiner's report lacks sufficient detail for the Board to fully consider the Veteran's contentions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The case was remanded for the Veteran to be afforded a new eye examination in November 2012. In a December 2012 VA DBQ, the VA examiner diagnosed the Veteran with cornea opacity (date of diagnosis in 2012), cataracts (date of diagnosis in 2005), and dry eye (date of diagnosis in 1997). It was noted that he had bilateral cataract surgery in 2005 and has been correctable to 20/25 since. The examiner stated that the Veteran had his cataracts removed and that the results were good. He stated that there were no residuals of the cataracts. The examiner noted the Veteran's contention that he was told by an ophthalmologist in 1946 that he may have had damage to his tear ducts causing tearing. The examiner stated that no damage to the tear ducts was noted on the present examination and that the Veteran's complaint of tearing was attributed to dry eye since 1997. The examiner stated that the claimed condition was less likely than not incurred in service or caused by an in-service injury event or illness. The examiner stated that dry eye is a common condition in patients as they age and in certain environments. The examiner also noted that the Veteran had a corneal scar in his right eye which was at least as likely as not incurred by the explosion in service. However, the examiner stated that the scar was not in his visual axis and did not affect his vision. The Board finds that the preponderance of the evidence is against entitlement to service connection for cataracts/defective vision, residuals of a tear duct injury, and dry eye syndrome. The Veteran was treated for cataracts in 2005. The December 2012 VA examiner stated that there were no residuals of cataracts and no damage to the tear ducts noted on the present examination. As there is no evidence of cataracts or residuals of an injury to the tear ducts during the appellate period (i.e., since the Veteran filed his claim for service connection in December 2010), these claims must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). With respect to dry eye syndrome, the examiner stated that the condition was less likely than not incurred in service or caused by an in-service injury event or illness. The examiner reasoned that that no damage to the tear ducts was noted on the present examination and that dry eye is a common condition in patients as they age and in certain environments. The Board acknowledges that the Veteran suffered an injury to his eyes during service and finds that he is competent and credible in this regard. The Board also acknowledges the Veteran's complaints of continuing eye/vision symptoms since service. However, the December 2012 VA examiner, after considering the Veteran's lay statements and the medical evidence, determined that the Veteran's dry eye syndrome was not related to service. The December 2012 VA DBQ is highly probative because the opinion is based on review of the claims folder, including the Veteran's STRs, and the opinion thoroughly discusses pertinent in-service and post-service medical and lay evidence. The VA examiner offered a detailed explanation of the rationale for the opinion that incorporates both the facts of the Veteran's case and the pertinent medical principles. The Board finds this opinion to be the most probative evidence of record. The Veteran's lay statements are outweighed by the medical evidence of record. The Veteran's assertion that his defective vision is related to service has been investigated by competent medical examination and found not supportable. Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir. 2007). Therefore, the Board finds that the preponderance of the evidence is against entitlement to service connection for dry eye syndrome. Finally, with respect to the corneal scar of the Veteran's right eye, the December 2012 VA examiner concluded that this disability was at least as likely as not incurred by the explosion in service. Therefore, service connection for a corneal scar of the right eye is granted. As the preponderance of the evidence is against the claims for service connection for cataracts/defective vision and residuals of a tear duct injury and/or dry eye syndrome, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Therefore, these claims must be denied. ORDER Service connection for cataracts/defective vision and dry eye syndrome and/or residuals of a tear duct injury is denied. Service connection for a corneal scar of the right eye is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs