Citation Nr: 1311897 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 06-05 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a right eye disorder, claimed as ptosis. 2. Entitlement to service connection for a right eye disorder, other than ptosis. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to November 1970. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran initially testified before a Decision Review Officer in November 2007. He subsequently testified before a Veterans Law Judge in March 2010. During the pendency of the appeal, that particular Veterans Law Judge retired. The Veteran subsequently testified before the undersigned in February 2013. Transcripts of the hearings are of record. This case was initially before the Board in June 2010 when claims for entitlement to service connection for hypertension and a skin disorder were denied. Claims for service connection for bilateral hearing loss, a right knee disorder, and a right eye disorder were remanded. A claim for an increased rating for posttraumatic stress (PTSD) was additionally remanded at that time. While the appeal was pending, service connection for a right knee disorder was granted in a July 2011 rating decision. In October 2011, the Board once again reviewed the Veteran's case and denied entitlement to service connection for bilateral hearing loss and an increased rating for PTSD. The Veteran's right eye disorder claim was remanded for a VA examination and medical opinions regarding his current right eye disorders. The case was again remanded in November 2012, so that the Veteran could be afforded an additional BVA hearing. As noted above, such was afforded to the Veteran in February 2013. The issue of entitlement to an increased disability rating for service-connected posttraumatic stress disorder and a petition to reopen the Veteran's claim of entitlement to service connection for bilateral hearing loss have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to service connection for a right eye disorder, other than ptosis 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. FINDING OF FACT Giving the Veteran the benefit of the doubt, the Veteran's right eye ptosis had its onset during service. CONCLUSION OF LAW Right eye ptosis was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Assist and Notify 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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 2013). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his right eye ptosis is related to an in-service accident that occurred while playing basketball. A May 1970 service treatment record reflects that the Veteran was smashed in the right eye with a black eye resulting. A June 1970 separation examination reflected a normal clinical evaluation of his eyes. Post-service treatment records include an April 2005 VA examination report which noted that the Veteran had visually significant ptosis. At a December 2008 VA examination the Veteran reported experiencing a droopy right eye since spinal surgery in September 2005. Nevertheless, the December 2008 VA examiner noted that ptosis had been listed on the April 2005 VA examination report so his ptosis was not caused by his September 2005 spinal surgery. An August 2009 VA examination and opinion once again considered the Veteran's claims. The VA examiner recommended that the Veteran consider surgical correction of his ptosis. He noted that it was less likely than not that the Veteran's ptosis is related to surgical complications as the condition was documented prior to neurosurgery and remains stable in appearance over that time. The Veteran indicated in an October 2012 statement that he had problems with his right eye prior to spinal surgery but that it essentially became worse after the surgery. The Veteran testified at his February 2013 hearing that his eye never opened normally after his accident, and that it was always droopy. See BVA Hearing Transcript (T.) February 2013 at 3. He additionally asserted that he was having problems with his eye long before his surgery but that it was droopier now than it was before he had surgery. See BVA T. at 4. The Board has considered a November 2011 VA examination and opinion obtained to address the Veteran's claim. The VA examiner opined that none of the Veteran's current ocular conditions are related to the trauma sustained in 1970. No rationale was provided. See 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). As such, no probative value is afforded to this medical opinion. The Board has additionally considered an August 2012 VA opinion obtained to address the Veteran's claim. The VA examiner opined that the Veteran's ptosis was less likely than not proximately due to or the result of the Veteran's service. He rationalized that there is no evidence to support that the Veteran's in-service trauma created the ptosis. He noted that the Veteran's records clearly show that the ptosis occurred in 2005 after surgery. However, the Board notes that this is factually incorrect. VA treatment records reflect that the Veteran underwent an anterior cervical diskectomy and fusion in September 2005. As noted by the December 2008 and August 2009 VA examiners, it was their professional opinion that the Veteran's ptosis had not been the result of his spinal surgery as it was reported at the Veteran's April 2005 VA examination predating his spinal surgery. As the August 2012 VA opinion was based on incorrect information, no probative value is attributed to this opinion. The Board also notes that the Veteran is competent to report such symptoms as a droopy eyelid that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination 'medical in nature' and is capable of lay observation. See 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.'). The Board acknowledges that the Veteran's first complaints of ptosis were not reported until he filed his claim in December 2004, many years following separation from service. Furthermore, no medical professional has established a relationship between this disorder and active duty. However, given that the Board finds his February 2013 BVA hearing testimony credible to establish symptoms of this disorder in service that are the same that he currently experiences, and that several medical professionals have indicated his ptosis is not the result of a post-service spinal surgery, the Board finds that service connection for right eye ptosis is warranted. ORDER Service connection for right eye ptosis is granted. REMAND The Board finds that additional development is required to satisfy VA's obligations under the VCAA. Pursuant to the October 2011 BVA Remand, the Veteran underwent an eye examination in November 2011, and opinions were obtained in November 2011 and August 2012. The November 2011 VA examiner determined that the Veteran had epiphora, ptosis, hypertensive retinopathy, and cataracts of the right eye. As noted above, although a medical opinion was issued, no rationale was provided. An August 2012 opinion only addressed the etiology of the Veteran's ptosis, epiphora, and hypertensive retinopathy. August 2009 and December 2008 VA examinations and opinions did not provide etiological opinions regarding his eye conditions and their relationship to service. An April 2005 VA examination did not provide an etiological opinion. As noted above, the Veteran's claim encompasses all eye disorders of the right eye, other than ptosis. In addition, the United States Court of Appeals for Veterans Claims (Court) held in McClain v. Nicholson, 21 Vet. App. 319 (2007), that so long as the veteran had a diagnosed disability during the pendency of the claim, service connection criteria requiring a current disability was satisfied. During the pendency of the appeal, the Veteran has confirmed diagnoses of hypertensive retinopathy, cataracts, suspect glaucoma, dry-eye syndrome vs. punctual obstruction, and epiphora. Etiological opinions regarding all of these diagnoses have not been obtained. Consequently, based on all of the foregoing, the Board finds that an additional VA opinion is required to provide an opinion as to whether any of these other diagnosed eye disorders are etiologically related to service. Accordingly, the case is REMANDED for the following actions: 1. Return the Veteran's claims file to the examiner(s) who conducted his November 2011 VA examination, or to a qualified medical professional if any examiner(s) is unavailable. If the examiner determines that an examination is necessary, one should be scheduled. The examiner should review the Veteran's claims file and determine whether the Veteran at the time his claim was received (in December 2004) or at any time since then has met the criteria for diagnoses of hypertensive retinopathy, cataracts, suspect glaucoma, dry-eye syndrome vs. punctual obstruction, and epiphora. In doing so, the examiner should address the fact that various VA treatment records reference diagnoses of hypertensive retinopathy, cataracts, suspect glaucoma, dry-eye syndrome vs. punctual obstruction, and epiphora. If the examiner concludes that the Veteran did in fact have hypertensive retinopathy, cataracts, suspect glaucoma, dry-eye syndrome vs. punctual obstruction, and epiphora during the course of his appeal, the examiner should opine whether it is at least as likely as not (50 percent or more probability) that the Veteran's hypertensive retinopathy, cataracts, suspect glaucoma, dry-eye syndrome vs. punctual obstruction, and epiphora had their onset in or are due to an injury in service. A separate opinion for each diagnosis should be obtained. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. Upon completion of the above, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, provided an opportunity to respond, and the case should thereafter be returned to the Board for further appellate consideration, as appropriate. 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). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs