Citation Nr: 1309783 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 09-20 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a right eye disability, including as secondary to wound of the left eye with embedded foreign body. 2. Entitlement to an evaluation in excess of 10 percent for wound of the left eye with embedded foreign body. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to November 1971. He received the Combat Infantryman Badge and Purple Heart Medal, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In January 2004 and July 2008 rating decisions, the RO continued to rate the Veteran's service-connected left eye disability as 10 percent disabling. In July 2008, the RO denied service connection for right eye disability, including as secondary to wound of the left eye with embedded foreign body. The Board remanded the appeal in March 2011 for additional development and adjudication. In addition to the Veteran's claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claims based upon all relevant evidence. The issue of entitlement to an increased rating for the left eye disability is remanded to the RO via the Appeals Management Center (AMC). The Veteran will receive further notice, if any action is required on his part. FINDING OF FACT A right eye disability is not the result of a disease or injury in active service and was not caused or aggravated by a service connected disease or disability. CONCLUSION OF LAW A right eye disability was not incurred in or aggravated by the Veteran's active military service, nor is such disability caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1154 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA. 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. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2012). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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). VA has met all statutory and regulatory notice and duty to assist provisions. 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. Letters dated in May and September 2008 satisfied the duty to notify requirements. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The letters notified the Veteran of the evidence and information necessary to substantiate his claims; informed the Veteran of his and VA's respective responsibilities in obtaining that evidence; and provided notice regarding the five elements of a claim. VA assisted the Veteran by obtaining the Veteran's service treatment records, VA and private medical records, and Social Security Administration disability records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has also been provided with VA examinations in connection with his claims. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. The Board concludes, after reviewing all evidence of record that the preponderance of the evidence is against the Veteran's claims adjudicated herein. As such, any questions as to the appropriate disability rating or effective date to be assigned to the claims are rendered moot; and no further notice is needed. Since there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless and will proceed with the adjudication of the Veteran's claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Board's remand sought to obtain VA outpatient treatment records since February 2009 and afford the Veteran a new VA eye examination. The updated records were obtained. The Veteran was afforded a VA examination in May 2011. As instructed, the examiner reviewed the claims file, which included the Board's remand. The examiner provided opinions with a rationale as to whether any current right eye disability was related to service or the left eye disability. II. Service connection. Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. §§ 3.303, 3.304. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. § 3.303(a). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 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"). For injuries alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) provides a relaxed evidentiary standard of proof regarding events that occurred during combat. Collette v. Brown, 82 F.3d 389 (1996). Specifically, 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); 38 C.F.R. § 3.304(d). However, the reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either the existence of a current disability or nexus between that disability and service, both of which generally require competent medical evidence. See generally, Brock v. Brown, 10 Vet. App. 155 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Veteran contends that his right eye disability is the result of strain caused by his service-connected left eye disability. The Veteran's service treatment records do not indicate that the Veteran injured his right eye and do not otherwise indicate treatment for a right eye disability in service. The Veteran has not reported any in-service right eye injury or disability, and there is no other evidence of such an injury or disability in service. After service, the Veteran was noted to have had a history cataracts in his right eye. He is currently status post intraocular lens implant in that eye. He has also been diagnosed with presbyopia and prescribed glasses. The Veteran's outpatient treatment records do not indicate whether his right eye disorder is the result of military serviced or a service-connected disability, to include his left eye disability. In June 2008, the Veteran underwent a VA eye examination. The examiner's opinion was that the Veteran had blurred vision in the right eye due to a cataract. The examiner did not offer an opinion as to etiology or aggravation. The Veteran was provided an additional VA examination in connection with his claim dated in May 2011. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The examiner noted that the Veteran had had a cataract in the right eye removed and an intraocular lens implanted. Vision following treatment was 20/20 with correction. As to whether the Veteran's right eye condition was caused by service or a service-connected disability, the examiner stated that the Veteran's right eye disability was less likely as not (less than 50/50 probability) caused by or a result of damage to the left eye while serving in Vietnam. Specifically the examiner found that, based on the available records, and with consideration of the injury incurred in the left eye, it was his opinion that it was less likely as not that the right eye disability was caused or related to the Veteran's military service or caused or aggravated by the left eye disability. In fact, the examiner opined that the probability that the previously existing cataract in the right eye was created during the incident which damaged the left eye is actually closer to zero that to 50 percent. In this regard, the examiner stated that the cataract in the right eye was removed in the past and an intraocular lens implant was then in position. The examiner indicated that it was not possible to determine the exact type of cataract that had existed, as the surgery had been completed. However, he indicated that there was no corneal scarring present, as was in the left eye, and no associated retinal scarring or other pathology which would indicate a traumatic cataract. In addition, while the examiner noted that the Veteran had a left eye cataract that may have a traumatic component, the majority of that (left eye) cataract was quite advanced and was a result of the aging process. As such, the examiner found that it was reasonable to assume that the cataract that had been present in the right eye was also age-related. And, in any event, there was no obvious evidence that the right eye cataract was the result of anything other than the aging process. Based on the foregoing, the Board finds that entitlement to service connection for a right eye disability is not warranted in this case. Here, the Veteran has been diagnosed history of right eye cataract status post intraocular lens implant. The Veteran's outpatient records also indicate presbyopia. However, the May 2011 VA examiner, that examined the Veteran and his claims file in connection with his report, found that the Veteran's right eye disability was not related to his military service or his service-connected left eye condition. The Veteran was diagnosed presbyopia (hyperopia and impairment of vision due to old age" Dorland's Illustrated Medical Dictionary 1349 (28th ed.1994) in association with the cataract. For the purposes of entitlement to benefits, the law provides that refractive errors of the eye are developmental defects and are not diseases or injuries within the meaning of applicable legislation. In the absence of a superimposed disease or injury, service connection may not be allowed for refractive errors of the eyes even if visual acuity decreased in service, as this is not a disease or injury with the meaning of the applicable legislation relating to service connection. 38 C.F.R. § 3.303(c). Accordingly, such a disorder cannot be service-connected, absent evidence of aggravation by a superimposed disease or injury. See Monroe v. Brown, 4 Vet. App. 513, 514-515 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90 (July 18, 1990); VAOPGCPREC 82-90 (July 18, 1990); and VAOPGCPREC 11-1999 (Sept. 2, 1990). And as indicated by the evidence, there is no basis to find that any current refractive error was caused by or a result of or aggravated by superimposed disease or injury during service. In assessing the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 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. See 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. The most probative value of a medical opinion comes from its 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; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the opinion of the May 2011 VA examiner is the only medical opinion of record. The examiner considered an accurate record and the opinion was fully informed. The examiner provided an opinion that was fully articulated and not equivocal. The examiner also provided reasoning based on the history of the Veteran's disability and medical knowledge. There are no contrary medical opinions to weigh against. The Veteran has contended that his right eye disability is related to the service-connected left eye disability. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). It would; however, require medical expertise to be able to say that the left eye disability incurred during service caused or aggravated a right eye disability at some point after service. The question regarding the relationship between such disability and military service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, the Veteran's statements are not competent evidence as to the relationship between the left and right eye disabilities. In summary, the most probative evidence consists of the May 2011 medical opinion. As the most probative evidence is against the claim, the preponderance of the evidence is against the Veteran's claim. Because the preponderance of the evidence is against the claim, reasonable doubt does not arise and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a right eye disability is denied. REMAND During the course of the appeal, VA revised the criteria for rating eye disabilities; however, the changes only apply to claims for benefits received by VA on or after December 10, 2008. Because the Veteran's claim was received prior to that date, the older criteria apply here, rather than the revised criteria. See 73 Fed. Reg. 66543-66554 (November 10, 2008). Under the 2008 rating criteria, chronic forms of the disabilities rated at Diagnostic Codes 6006-6009, were to be rated from 10 percent to 100 percent based on impairment of visual acuity, or field loss, pain, rest-requirements, or episodic incapacity, with a minimum rating during active pathology of 10 percent. 38 C.F.R. § 4.84a (2008). In its previous remand, the Board sought a medical opinion in which the examiner commented on the Veteran's pain, rest requirements and periods of incapacity attributable to the left eye disability. The March 2011 examination report did not include findings referable to rest requirements or periods of incapacity. The Board has a duty to insure that its remand instructions are complied with, and the Veteran has a right to such compliance. VA regulations provide that where "diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2012). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination.'" Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Accordingly, the case is REMANDED for the following: 1. Ask the examiner who provided the May 2011 examination to clarify the extent of any rest requirements or incapacitating episodes resulting from the left eye disability during the period beginning in April 2008. If the examiner is unavailable or unable to provide this information, the Veteran should be afforded a new eye examination that includes findings with regard to rest requirements and incapacitating episodes. All examiners or reviewers should be provided with access to the claims folder. 2. If the benefit sought on appeal is not fully granted, issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs