Citation Nr: 1309216 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 10-29 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for an eye disorder, claimed as blurred vision. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The Veteran had active duty from August 1972 to August 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of the North Little Rock, Arkansas Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2011, the Veteran testified during a Board hearing using videoconferencing techniques before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. FINDINGS OF FACT 1. During the Veteran's June 8, 2011, Board videoconference hearing the Veteran acknowledged that he desired to withdraw his appeal for service connection for hypertension. 2. The evidence is in equipoise as to whether the Veteran's tension headaches are related to his active duty service. 3. Currently diagnosed refractive error, presbyopia, is a developmental disorder of the eye, and service connection is, by regulation, precluded for such disorders. 4. A ratable eye disorder was not incurred in or aggravated by service, and is not attributable to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal on the issue of service connection for hypertension have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for the establishment of service connection for tension headaches have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. The criteria for the establishment of service connection for an eye disorder have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Hypertension Claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the Veteran or by his or her authorized representative. Id. In the present case, at his June 2011 videoconference hearing, the Veteran acknowledged during his testimony that he desired to withdraw the claim for service connection for hypertension. See June 2011 hearing transcript at 2. Hence, there remain no allegations of error of fact or law for appellate consideration on this issue. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. II. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board is granting in full the benefit sought on appeal with respect to the headache claim. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered as to that matter. As to the issue of service connection for an eye disorder, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in August and October 2008 (prior to the initial adjudication of the claim) and May 2010 (after which the claim was readjudicated in a March 2011 supplemental statement of the case). The letters fully addressed all notice elements. They informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With those letters, the RO effectively satisfied the notice requirements with respect to the remaining service connection issue on appeal. Under these circumstances, the Board finds that adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Neither the Veteran nor her representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. The notice complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records (STRs), private treatment records, and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The RO associated the Veteran's service treatment records, private treatment records identified by the Veteran, and VA treatment records with the claims file. The Veteran reported in April 2010 that with respect to additional private treatment records, the clinic where he had received treatment "is now closed and the records are not attainable . . . ." No outstanding evidence has been identified. The Veteran was also afforded a VA examination in connection with the eye disorder claim. According to Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed. The Board finds the March 2010 VA eye examination report was thorough and adequate upon which to base a decision. The VA eye examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board notes that in the recent case of Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) the Court held that "[t]here is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file." Monzingo at 7 (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)). The Court instead has held that "examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Id. The Board finds that the 2010 VA eye examiner's negative nexus opinion is adequate under this standard as he provided his judgment on the requested medical question as well as the essential rationale: the examiner found the Veteran's current visual acuity was 20/25 bilaterally, and while the STRs showed that he had been struck in the right eye area during service, his July 1974 service separation examination revealed 20/20 vision bilaterally. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the eye issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Further, the Veteran was provided an opportunity to set forth his contentions at a videoconference hearing in June 2011 before the undersigned VLJ. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veteran's Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the undersigned VLJ identified the issues on appeal. Service history was discussed. The current complaints regarding his eye disorder was also addressed. The VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. See Bryant, 23 Vet. App. at 497. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and the Board can adjudicate the claim based on the current record. The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist 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). Service connection The Veteran has claimed entitlement to service connection for headache and eye disorders. To establish service connection for the claimed disabilities, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). The United States Court of Appeals for Veterans Claims (Court) held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Further, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Headache Disorder The Veteran's service treatment records indicate that he sustained a "soft tissue trauma" in the area of the right eye which resulted in Grade IV swelling of the eyelids. However, his July 1974 service separation examination showed no evidence of headaches, and in a post-service June 1975 enlistment examination for the Army National Guard, he denied "frequent or severe headache." Subsequent to service a January 1976 private treatment record noted a report of headache. VA treatment records dating from 2008 show complaints of, and treatment for, headaches. A November 2008 VA examination diagnosed head injury with post-concussive vascular headaches. The Veteran reported that he was briefly knocked unconscious in service in 1973 when another soldier "struck him in the eye and head." Since that time he reported recurring headaches that have recently worsened. The examiner noted that the claims folder had been reviewed, and commented, "[h]is headaches, historically correlate with post head injury headaches per [V]eteran history." A March 2010 VA TBI (traumatic brain injury) examination gave an impression of "posttraumatic headache by history." The examiner stated "[t]here was no evidence of chronic headache following his head trauma in his chart that I could find. Historically he relates the headaches to the trauma, but the characteristics of the headaches are actually more tension. No other TBI symptoms were found. A September 2010 written statement by the Veteran's treating VA physician states: "[i]t is very likely that the chronic headaches from which [the Veteran] has suffered from since [sic] a head injury in 1972 are related to that injury." The evidence of record supports the medical opinions. The Veteran's lay statement of the event, coupled with the STR documenting trauma in the right eye area, clearly establishes that such a head injury occurred. Further, two of the medical opinions of record, as discussed above, link his current headache disability to the inservice incident. Accordingly, after affording the Veteran all reasonable doubt in his favor, service connection for tension headaches is warranted. Eye Disorder As noted above, the STRs include a record which reflects that the Veteran sustained a soft tissue injury in the area of the right eye in service. Post-service, a November 2008 VA examination diagnosed presbyopia. The examiner noted that the claims folder had been reviewed and that a September 2008 VA eye consultation diagnosed presbyopia only. The September 2008 record noted that the Veteran reported he was hit in the "OS" (left eye) by a bat in 1973 and was treated at a hospital and the eye was patched for several days. A July 2008 VA outpatient treatment record noted that the Veteran reported blurry eyes "for the last one month." A March 2010 VA TBI examination noted physical examination of the eyes was essentially normal. A March 2010 VA eye examination revealed corrected vision to 20/25 bilaterally. The examiner explicitly stated that he had reviewed the claims folder. He noted that the Veteran and the VA treatment records indicated that the eye injury in service was to the left eye, while the STRs showed that it was the right eye that was injured. The examiner also noted that the Veteran's vision was normal (20/20 bilaterally) on service separation examination. The examiner concluded that "[h]is complaint of blurred vision was not caused by an injury in the service." The law provides that refractive error of the eyes is a developmental defect and not a disease or injury within the meaning of applicable legislation. In the absence of superimposed disease or injury, service connection is not granted for refractive error of the eyes, including presbyopia, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9; Veterans Benefits Administration (VBA) Manual M21-1MR, Part III, iv.4.B.10.d. At the outset, the Board notes that the preponderance of the evidence is against a finding that the Veteran has (or has had at any time during the appeal) a current eye disability other than presbyopia. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110 (West 2002). The Court has held that "this requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Federal Circuit has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. 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, (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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Evidence of record includes the Veteran's statements and hearing testimony asserting a nexus between his claimed eye disorder or vision problems and his eye injury in service. In this case, while the Veteran is competent to state that he has had vision problems, like blurry vision, he is not competent to provide testimony regarding the nature or etiology of his claimed eye disorder. Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). Because an eye disorder is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. The probative value of the Veteran's statements is further weakened when weighed against the evidence of record. Indeed, the September 2008 VA optometry consult and the November 2008 and March 2010 VA examination reports did not identify a disability of the eyes other than a refractive error. Further, the March 2010 clearly opined that the Veteran's reports of blurred vision were not related to an injury in service. The Board finds the opinion of the 2010 eye examiner to be extremely probative and persuasive as the examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran; reviewed and discussed the relevant evidence in the service and post-service treatment records; and provided the essential rationale for his negative opinion. In sum, the Board finds that the criteria for entitlement to service connection for the claimed eye disorder has not been established, either through medical evidence or through the Veteran's lay statements. The claim for service connection for an eye disorder must therefore be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As such, the appeal is denied. ORDER The claim for entitlement to service connection for hypertension has been dismissed. Entitlement to service connection for tension headaches is granted. Entitlement to service connection for an eye disorder is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs