Citation Nr: 1310534 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-04 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a right eye disorder, including visual field changes of the right eye. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from January 2004 to May 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from October 2007 and June 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board notes that in his January 2010 substantive appeal, the Veteran requested a Board hearing at the RO. The Veteran was scheduled for a travel board hearing on April 17, 2012; however, he failed to report to the hearing due to being incarcerated. See the April 2012 RO hearing letter. As a result, the Board has determined that his request for a hearing has been withdrawn. See 38 C.F.R. § 20.704 (2012). The Board has reviewed the contents of the Veteran's Virtual VA file and found no medical or other evidence pertinent to this appeal that is not in his claims file. FINDING OF FACT The preponderance of the evidence shows that the Veteran's visual changes of the right eye were not present in service or until many years thereafter and are not related to service or to an incident of service origin. CONCLUSION OF LAW Visual changes in the right eye were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to his right eye disorder claim, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir. 2004). Letters dated in August 2006 and March 2008 informed him of all three elements required by 38 C.F.R. § 3.159(b) as stated above. Additionally, in light of the denial of the Veteran's service connection claim, no disability rating or effective date can be assigned, so there can be no possibility of prejudice to the Veteran under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). As to the duty to assist, the Board has obtained the Veteran's service treatment records and VA outpatient treatment records. The Veteran was also provided a VA examination and medical opinion in connection with his service connection claim. The examiner reviewed the Veteran's medical history, recorded pertinent examination findings, and provided a conclusion with supportive rationale. The Board finds that the VA examination report is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Decision The Veteran contends that his current right eye disability is related to his active military service. In a May 2006 statement, the Veteran explained that his right eye was injured in service when he was burned in cooking school. He stated that his class was cooking a pot roast in a cooker when the hot grease burned his right eye. Since that time, he has endured vision problems and blurring in the right eye. The Veteran asserts that service connection is warranted for his right eye disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease diagnosed after service when all 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, ___ F.3d ___, No. 2011-7184, 2013 WL 628429, at *4 (Fed. Cir. Feb. 21, 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))). 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 § 3.303(b); ___ F.3d ___, No. 2011-7184, 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"). Specifically, 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). If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id.; see also Walker___ F.3d ___, No. 2011-7184, 2013 WL 628429, at *9 (observing that subsection 3.303(b) provides a "second route by which a veteran can establish service connection for a chronic disease"). When the claim is for a disorder or disease not listed in section 3.309(a), then "the 'nexus' requirement of the three-element test" must be satisfied, and evidence of a continuity of symptomatology will not suffice to establish service connection. Id. at *14; 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 Federal Circuit has clarified that the nexus requirement of the three-element test is a higher evidentiary showing than the more relaxed continuity-of-symptomatology standard, and that the latter only applies to the specific chronic diseases listed in section 3.309(a) of the regulations. Id. at 13-14 (observing that "[t]he 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 . . . service connection via continuity of symptomatology") (emphasis added). Because the Veteran's right eye visual changes are not defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities do not apply, and evidence of a continuity of symptomatology after service is not sufficient by itself to support the claim. See id. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service treatment records note that the Veteran visited the optometry clinic in June 2004 with complaints of ocular pain and burning in the right eye. The Veteran reported hot grease splashing into his right eye while cooking. The right eye was irrigated after the incident, but has since endured pain and burning. After physical testing, the Veteran was diagnosed with keratoconjunctivitis secondary to heat trauma in the right eye. In August 2004, the Veteran returned to the optometry clinic with continuing complaints relating to his right eye. He explained that hot grease popped in his right eye and since that time, he has had decreased vision in his right eye. The Veteran visited sick call again in November 2004 with continuing complaints of little to no vision in the right eye since the grease incident in June 2004 and again most recently in November 2004. Examination of the right eye revealed no signs of erythema or eyelid edema. There was a pustule noted on the upper lateral lid edge with no objective corneal injury. Visual testing revealed 20/20 vision in the right eye with clear corneas and good visual acuity and binocular acuity. While the Veteran's service treatment records show that he incurred a right eye injury, there must still be competent evidence of a current disability and a nexus to service in order to establish entitlement to compensation benefits. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (observing, in pertinent part, that "the mere fact that a [veteran] has suffered a service-connected disease or injury does not automatically lead to compensation for future disabilities . . . . [T]he veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty."); see also Huston v. Principi, 18 Vet. App. 395, 402 (2004); Clyburn v. West, 12 Vet. App. 296, 303 (1999); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). In November 2006, the Veteran was afforded a VA examination to determine the etiology of his claimed right eye disability. The Veteran reported being splashed in the right eye with frying grease in service that left him with a decrease in peripheral vision. After physical examination testing, the VA examiner concluded that there was no visual disability related to his chemical injury, but the 30-2 visual field results may be due to an optic tract infarct. The VA examiner recommended that the Veteran receive a magnetic resonance angiography (MRA) and a neuro-opthalmologist consult in order to receive an accurate diagnosis. As such in August 2007, the Veteran underwent a second VA examination for his right eye disability. The Veteran reported being burnt with grease in the right eye three times, but since recovered from the episodes. He gave a history of decreased temporal vision in his right eye for one to one and a half years. Additionally, the Veteran reported being hit with a lead pipe on the right side of the head by German police approximately one and a half years ago. Since both incidents the Veteran reported no change in central vision or visual acuity, but admitted to some "jumping of vision" when looking around. After physical examination testing, the VA examiner assessed the Veteran with visual field changes in the right eye of unknown etiology. The VA examiner explained that such visual field changes do not appear to be related to damage to the optic nerve or tract or that there are signs of optic nerve dysfunction or optic atrophy. While the August 2007 VA examiner provided a diagnosis and medical opinion regarding the Veteran's right eye visual changes, the RO noted that it was rather unclear whether or not the VA examiner reviewed the claims file prior to reaching a conclusion. As such, the RO requested an additional VA medical opinion. See the April 2011 RO note. In May 2011, a VA examiner concluded that the Veteran's right eye visual changes are not caused by or a result of the in-service right eye grease burns. The VA examiner explained that grease burns are an anterior segment injury with likely residual effects found on the cornea or conjunctiva. In this case, the Veteran's anterior segment findings noted no residual effects and were unremarkable. Visual field defects usually stem from optic nerve or optic tract pathway damage, which are posterior segment and would be unaffected by ocular surface damage. In a July 2011 follow-up addendum, the VA examiner indicated that his May 2011 opinion remained unchanged after a review of the claims file. As an aside, in April 2011, a VA physician reviewed the Veteran's VA eye clinic notes and concluded that the visual field defects in the right eye are not caused by damage to the eye or visual pathways from the injury to his head by a lead pipe several years ago. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran's visual changes in the right eye are not related to service. In making this determination, the Board finds it significant that the only evidence of record indicating a possible nexus between the Veteran's military service and his current right eye disability are the Veteran's own assertions. In determining that service connection is not warranted in this case, the Board acknowledges that the Veteran is competent to report that he has experienced right eye visual problems since the in-service grease accident. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). In this regard, the Board highlights that competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled, or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). The Board acknowledges the Veteran's reports that he has continued to have visual changes in the right eye symptomatology since service; however, the Board finds that his statements are not credible. The Veteran's contentions of having visual changes in the right eye since service are outweighed by the contemporaneous medical evidence, which reveals that he demonstrated good visual acuity and binocular acuity after the two in-service grease accidents in June 2004 and November 2004. See the November 2004 service treatment note. Regardless, as noted above, because the Veteran's right eye visual changes are not defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities do not apply, and evidence of a continuity of symptomatology after service is not sufficient by itself to support the claim. Although the Veteran contends that his visual changes of the right eye are causally related to his in-service grease accident in June 2004, he has submitted no competent medical evidence or opinion to corroborate this contention. See 38 C.F.R. § 3.159(a)(1) (defining competent medical evidence as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issue in this case, the etiology of visual impairment, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." By contrast, the Board finds the May 2011 VA medical opinion and July 2011 VA addendum opinion which is based on a review of the Veteran's complete medical history and is supported with well-reasoned and cogent medical rationale, to be more probative as to the etiology of the Veteran's visual changes of the right eye. In this regard, as previously stated, after reviewing the Veteran's claims file and discussing his pertinent medical history, the May 2011 VA examiner provided the opinion that the Veteran's visual field changes are not caused by or a result of the in-service right eye grease burns. Moreover, in support of this opinion, the examiner explained that grease burns are an anterior segment injury with likely residual effects found on the cornea or conjunctiva. The Veteran's anterior segment findings noted no residual effects and were essentially remarkable. As such, after weighing and balancing all the evidence of record, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran's visual changes in the right eye had their onset during active service, or are related to any in-service disease or injury, including the in-service grease accident in June 2004. See 38 U.S.C.A. §§ 1110, 1112. Accordingly, the Board finds that the criteria for service connection for visual changes in the right eye are not met and the Veteran's claim must be denied. In reaching this conclusion, 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. See 38 U.S.C.A. 5107(b); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). ORDER Entitlement to service connection for visual field changes of the right eye is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs