Citation Nr: 1312900 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 10-14 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for left eye near complete visual field loss with severe constriction. 2. Entitlement to a disability rating in excess of 30 percent for the Veteran's service-connected right eye decreased visual acuity secondary to a lightning injury. 3. Entitlement to special monthly compensation (SMC) under the paired organ provision pursuant to 38 U.S.C.A. § 1114(l). 4. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Ms. Katie Ambler, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1987 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2006 and March 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The issues of an increased rating for a right eye disability and entitlement to SMC and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran has a current left eye disability of near complete visual field loss with severe constriction. 2. During service, the Veteran's left eye visual acuity worsened to 20/40 after the lightning strike, but returned to normal; however the Veteran has testified as to continuing visual field difficulties, rather than visual acuity alone. 3. The Veteran's left eye with near complete visual field loss with severe constriction is causally and etiologically related to his military service. CONCLUSION OF LAW The criteria for service connection for left eye with near complete visual field loss with severe constriction have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants service connection for a left eye disability. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary regarding this issue. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection must be considered on the basis of the places, types and circumstances of a Veteran's service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") Pertinent to the case at hand, the Veteran's near complete visual field loss is not among the list of chronic diseases listed within 38 C.F.R. § 3.309(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 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). Indeed, 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 C.F.R. § 7104(a) (West 2002). 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). 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, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining 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."). The Veteran contends that he has a left eye disability that is causally related to a lightning strike he experienced during service. Service treatment records show that the Veteran was struck by lightning in April 1990. The Veteran experienced slightly decreased visual acuity as a result that returned to normal in time. The Veteran also testified as to his continuous visual difficulties of the left eye since service. In April 1990, the examiner diagnosed the Veteran with probable subtle, resolving optic neuritis/neuropathy. The Veteran is competent and credible to testify that his symptoms have been continuous since separation from service. The Veteran has a current diagnosis of near complete visual field loss with severe constriction. His private examiner in May 2010 noted that it was possible for the lightning strike to be the cause of the Veteran's left eye disability. A January 2008 VA examiner reviewed the Veteran's claims folder and noted no evidence of progressive visual field loss within the left eye, although near total field constriction was seen on his prior examination in October 2005. The examiner opined that the Veteran's ophthalmic condition more likely than not service-connected. The Board acknowledges the November 2005 VA examination, which noted that it is more likely that additional pathologic factors were causing his current changes in visual acuity in the left eye. That examiner also noted that he could not determine whether the disability was due to the lightening strike without his recommended workup, to include an MRI of the head and a neuro-ophthamology consultation. This workup was not completed. As a result, the Board finds the January 2008 VA examiner's opinion to be more probative than that of the November 2005 VA examiner. Based on this evidence, the Board finds that service connection is warranted for the Veteran's left eye near complete visual field loss with severe constriction. ORDER Service connection for left eye near complete visual field loss with severe constriction is granted. REMAND The Board notes that when both eyes are service-connected a disability rating is provided based on the visual acuity of both eyes. As the above decision grants service connection for a left eye disability, the Board finds that the rating of the right eye disability and entitlement to SMC under 38 U.S.C.A. § 1114(l) and 38 C.F.R. § 3.350 are inextricably intertwined with the rating of the left eye disability, which the RO must do in the first instance. Therefore, the issues must be returned to the RO for rating prior to consideration of the Veteran's increased rating and SMC claims. In the present case, the Veteran and his representative have asserted that the Veteran is unable to work due, at least in-part, to his service-connected disabilities, specifically due to his eye disabilities. Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations"); See also Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that an appeal for higher rating includes a claim for TDIU, if reasonably raised by the record). In light of the Court's determination that evidence of unemployability in the context of a rating claim may include a TDIU claim, as well as the Veteran's assertion that his back disability has prevented him from maintaining gainful employment, the Board finds that remand of the issue of TDIU for development by the RO, specifically to provide an examination to determine whether the Veteran is capable of obtaining and maintaining employment, is the appropriate action. Accordingly, the case is REMANDED for the following action: 1. Issue a notice letter that complies with the requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012) that includes an explanation as to the information or evidence needed to establish a TDIU claim and an SMC claim. 2. Notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge of the nature, extent and severity of his eye disabilities, as well as the impact of his conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Then readjudicate the appeal, to include adjudicating whether SMC, TDIU, or an increased rating for the right eye disability is warranted. Upon completion, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs