Citation Nr: 1311215 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 02-19 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for an eye disability, to include glaucoma, keratitis, conjunctivitis, chronic dry eye syndrome, blepharospasm, and blepharitis. 2. Entitlement to service connection for Bell's palsy, claimed as secondary to the current eye disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from July 1971 to September 1975. This matter came before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified before the undersigned Acting Veterans Law Judge in April 2003 and before a Decision Review Officer in May 2008. Transcripts of his hearings have been associated with the record. The appeal was remanded for additional action in January 2010 and November 2011. The issue of entitlement to service connection for Bell's palsy is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's eye symptoms have been ascribed to dry eye syndrome; dry eye syndrome was manifest in service and is related to service. 2. Glaucoma was not manifest in service and is unrelated to service. CONCLUSIONS OF LAW 1. Dry eye syndrome was incurred during service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2012). 2. Glaucoma was not incurred in or aggravated during service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 & Supp. 2012); 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 claimant and his representative 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) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the U. S. Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Id. at 486. A November 2000 letter discussed the evidence necessary to support the appellant's claim. The evidence of record was listed and the appellant was told how VA would assist him in obtaining additional relevant evidence. He was invited to submit or identify pertinent evidence. An August 2007 letter discussed the manner in which VA determines disability ratings and effective dates. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect VA's duty to assist, the Board notes that identified records have been associated with the claims file. The claims file was reviewed by a VA physician in April 2010 and again in December 2011, and the Board finds that the resulting opinions offered by that physician are adequate with respect to the issue decided herein in that the review was performed by a neutral skilled provider who considered the Veteran's pertinent history prior to rendering conclusions. Neither the appellant nor his representative has identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. As noted above, the appellant also was afforded a hearing before the undersigned acting Veterans Law Judge (VLJ) during which he presented oral argument in support of his service connection claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the 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 VLJ fully explained the issue on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claim that were lacking to substantiate the claim for benefits, and suggested the submission of evidence that would be beneficial to the appellant's claim. Significantly, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. 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). For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97; see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). Having carefully reviewed the evidence relevant to this claim, the Board has determined that service connection for dry eye syndrome is warranted. In that regard, the Board observes that the service treatment records document, and a VA ophthalmologist has acknowledged that the Veteran received treatment during service. A December 2011 report from a VA ophthalmologist recites the Veteran's history, noting that various diagnoses were rendered. Those include conjunctivitis, photophobia, punctate keratitis, and questionable iritis. The VA ophthalmologist indicated his belief that the Veteran's eye complaints were not from conjunctivitis, noting that such rarely produced punctate keratitis, but that dry eye often did. He concluded that the Veteran's complaints of burning, redness, and foreign body sensation, as well as punctate keratitis, could all be explained by the diagnosis of dry eyes. He noted that such diagnosis would better explain the Veteran's intermittent levels of irritation and discomfort. He pointed out that the eye surface could dry out and lead to punctate keratitis and redness, foreign body sensation, and photophobia depending on a patient's activities. He also stated that conjunctivitis was usually accompanied by clinical signs which were not described. He noted that he had previously noted dry eyes in the Veteran and so felt comfortable stating that his dry eyes were at least as likely as not the cause of the Veteran's eye complaints all along - from the 1970s on. He additionally stated that it was less likely than not that the Veteran's symptoms were related to conjunctivitis, chronic or otherwise. The Board notes that the issue has been characterized to include various other eye related diagnoses and symptoms. In that regard, the December 2011 examiner specified that he was comfortable stating that the Veteran's dry eye syndrome was at least as likely as not the cause of the Veteran's eye complaints all along, from the 1970s. He pointed out that drying of the eye surface could lead to punctate keratitis (inflammation) and redness, and foreign body sensation. The Board observes that in reaching his conclusion, the examiner reviewed the claims file, which includes various impressions and findings, to include symptoms of burning, swelling (keratitis or blepharitis), and twitching (blepharospasm). After considering all of the Veteran's symptoms over the years, he concluded that dry eye syndrome was the cause of the Veteran's complaints. As the examiner essentially ascribed the diagnosis of dry eye syndrome to the Veteran's symptoms and complaints, the Board has determined that it need not address the various other eye related diagnoses, with the exception of glaucoma, and symptoms incorporated into the issues as characterized by the AOJ. In sum, because there is evidence of eye symptoms in service which the VA examiner has opined constituted dry eye syndrome, there is evidence of a current diagnosis of dry eye syndrome, and a competent medical opinion linking the symptoms in service with the current diagnosis, service connection is warranted. 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 such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. Because, at the very least, a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown , 5 Vet. App. 413, 421 (1993). As such, the Board finds that entitlement to service connection for dry eye syndrome may be granted. With respect to glaucoma, the Board notes that the Veteran was noted to be highly suspicious for that disease in June 2006. At that time, T.C.N., M.D. noted that the Veteran had started on medications for that condition and had also undergone laser treatment to control glaucoma. He indicated that he had discussed with the Veteran that trauma could sometimes be a cause of glaucoma. He noted that such would be rare, but possible. These statements are clearly expressed in very speculative terms. For this reason, the Board affords these statements little probative value with respect to establishing the etiology of the Veteran's glaucoma. See Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). On the other hand, the report of an April 2010 VA examination includes the examiner's opinion that glaucoma was not caused by anything related to service to include foreign body removal, episodes of conjunctivitis, or an episode of punctate keratitis. He reasoned that such would not be caused by the Veteran's prior low severity superficial problems. In rendering his opinion, the VA examiner reviewed the claims file, to include evidence supportive of the Veteran's claim in the form of Dr. N's records. Ultimately, he determined that glaucoma was not related to service. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Therefore, the Board finds the VA examiner's opinion to be of greater probative value than Dr. N's statements and the unsupported statements of the Veteran. The Board has considered the Veteran's statements concerning the etiology of his glaucoma. The Veteran is certainly competent to report the onset of symptoms and the circumstances surrounding such. However, the Board finds that the Veteran is not competent to offer an opinion on a complex medical matter, to include opining as to whether his claimed glaucoma is related to service to include any eye trauma suffered therein. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board finds that the etiology of this claimed disability is ultimately far too complex a medical question to lend itself to the opinion of a layperson. Therefore, the Board finds that the conclusions of the VA examiner far outweigh the Veteran's lay assertions. In light of the above discussion, the Board must conclude that the preponderance of the evidence is against a claim of entitlement to service connection for glaucoma, and there is no doubt to be resolved. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert. ORDER Entitlement to service connection for dry eye syndrome is granted. Entitlement to service connection for glaucoma is denied. REMAND In its November 2011 remand, the Board noted that a March 2010 VA examination was inadequate. Specifically, the Board indicated that the examiner incorrectly stated that the Veteran had Bell's palsy in service when in fact such was not noted in service. The Board also noted that while the examiner had determined that there was no current Bell's Palsy or residuals, she did not reconcile her opinion with the lay evidence of Bell's Palsy residuals consisting of May 2008 testimony by the Veteran and his wife. The Board ordered that the claims file be returned for a supplementary opinion, to include rationale. On remand, the claims file was forwarded to a VA examiner. In response, the examiner stated that opinion offered in March 2010 had not changed, and that she had reviewed the claims file, medical literature, and previous examination performed by a neurologist in March 2010. She provided no discussion of the Veteran's lay assertions of Bell's palsy symptoms and no rationale for her conclusory statement. As such, the Board finds that her supplementary report is not responsive to the questions posed by the November 2011 remand order, and is adequate for the purpose of deciding this claim. In light of the above discussion, the Board has determined that additional development is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule a VA examination to determine whether the Veteran has Bell's palsy that is related to service or to his service-connected eye disability. The claims folder should be forwarded to the examiner for review, and the examiner should be directed to elicit a complete history from the Veteran, the details of which should be included in the examination report. All necessary testing should be conducted. Following examination, interview of the Veteran, and review of the claims file, the examiner should indicate whether there is current Bell's palsy or residuals of Bell's palsy. The examiner should then provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any such disability is related to any disease or injury in service, or to the service-connected dry eye syndrome. If there is no currently diagnosed Bell's palsy or Bell's palsy residuals, the examiner must reconcile this lack of diagnosis with the Veteran's lay reports of symptoms. A discussion of the reasons behind any opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 3. Upon completion of the examination ordered above, review the examination report to ensure that it addresses the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 4. Then, readjudicate the claim on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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). ______________________________________________ N. Rippel Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs