Citation Nr: 1313431 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 09-49 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for bilateral loss of vision. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from August 1943 to May 1946. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, that denied a reopening of the Veteran's claim. In August 2012, the Board remanded the case to the RO, via the Appeals Management Center (AMC), in Washington, DC, for additional development, including completion of development directed in the November 2011 remand. See Stegall v. West, 11 Vet. App. 268 (1998). The AMC/RO completed the additional development as directed, continued to deny the claim, and returned the case to the Board for further appellate review. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The AMC completed the additional development directed in the August 2012 remand by returning the claims file to the medical examiner for clarification, as directed in the remand. 2. The preponderance of the evidence of record shows the Veteran's currently diagnosed bilateral vision loss is not causally related to his active service. CONCLUSION OF LAW The Veteran's bilateral vision loss was not incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (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) (2005). 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 Court has also 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a letter issued in January 2008, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection, to include the reason his prior claim was denied and the type evidence needed to reopen the claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. The Veteran has substantiated his status as a veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims. He was also told to submit relevant evidence in his possession. Hence, VA complied with the notice requirements of the VCAA. The Veteran testified at a hearing before the undersigned at the RO in August 2011. A transcript of the hearing is associated with the claims file and has been reviewed. The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the August 2011 hearing, the undersigned identified the issues on appeal and solicited information as to treatment, and findings related to the claimed disability; and, ensured the Veteran was aware of the evidence needed to substantiate his claim. The Board then remanded the claim to obtain evidence expected to assist the Veteran in substantiating the claim. The Board thereby fulfilled its duty under Bryant. Further, neither the Veteran nor his representative as made any specific assertion of prejudice due to the manner in which the hearing was conducted. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (no presumption of prejudice for notice-type error). The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained available records of treatment reported by the Veteran, including service treatment records, records from various federal agencies, and private medical records. Additionally, the Veteran was afforded a VA examination in December May 2011. An examination is adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994)). It is a medical examiner's responsibility to provide a well-supported opinion so that the Board may carry out its duty to weigh the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (concluding that medical opinion is not entitled to any weight "if it contains only data and conclusions"); Stefl, 21 Vet. App. at 124 (stating that VA medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). An examination may also be inadequate, in the context of a chronic disease, if the examiner ignores a veteran's assertions of continuity of symptomatology. Barr, 21 Vet. App. at 311 (finding error where "the VA examiner did not indicate whether he considered Mr. Barr's assertions of continuity of symptomatology"). In the instant case, on a subsequent review of the appeal, the Board remanded the case a second time so the medical examiner could provide a full rationale for his opinion that included the Veteran's asserted basis for his claim. As discussed below, the VA examiner has considered the prior medial history in detail, and considered the Veteran's reports and contentions. The opinions are well supported by analysis. In sum, the evidence of record shows no error or omission in notice or assistance that would preclude the Board from addressing the merits of the issue on appeal. See 38 C.F.R. § 3.159(c). Service Connection Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden, 381 F.3d at 1167; Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C.A. § 1154(a) 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 profession." Jandreau, 492 F.3d at 1377; 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." "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods, where applicable, are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. §§ 3.303(d), 3.307, 3.309. Analysis The August 1943 Report Of Medical Examination For Enlistment reflects the Veteran's visual acuity was 20/20 in the right eye, and 20/30 in the left. The service treatment records do not document any vision- or eye-related complaints or treatment. The May 1946 Report Of Medical Examination For Separation reflects visual acuity of 20/20-1 in the right eye, and 20/60 in the left eye. There is no indication of correction. The eyes, eyelids, and reflexes, were otherwise assessed as normal and no eye disability was identified. An October 2004 examination report notes the Veteran's history of what was assessed as age-related macular degeneration in both eyes of then approximately three years in duration. The Veteran had undergone laser therapy on the right eye two years earlier for exudative or wet age-related macular degeneration. The left eye was diagnosed as nonexudative or dry age-related macular degeneration. The examiner noted the Veteran had enjoyed an excellent outcome from the laser therapy and opined the Veteran's vision disorder was not likely related to active service; instead, the macular degeneration and cataracts were both age related. In his February 2008 statement, submitted in support of his application to reopen his claim, the Veteran asserted that, while macular degeneration was understood to be an age-related condition, recent and ongoing studies had indicated the disorder could develop due to exposure to the emissions of cathode ray tubes (CRT) used in sonar and radar equipment. The Veteran asserted his primary duties involved sitting long hours in front of the early versions of such equipment. He asserted further that he enlisted with perfect vision but, soon after his honorable discharge, he required eye glasses to correct vision problems which he asserts were directly related to the long hours he spent performing his duties. In December 2008, The Veteran submitted an article from an unidentified source reporting the possible impacts of CRTs on vision. These included eye strain, cataracts, and blurred vision. The Veteran reiterated his contentions in his hearing testimony. At the hearing, the Veteran's son testified that the Veteran was wearing glasses in his 30s, which, it was asserted, was inconsistent with age related eye disease. The December 2011 eye examination report reflects the examiner conducted a review of the claims file as part of the examination. The report notes the Veteran denied any in-service eye trauma or injury, and he reported his main complaint was extended use of sonar screens while in service. The Veteran reported his first use of spectacles was around age 30. Based on his review of the claims file and the Veteran's reported history, the examiner diagnosed end-stage exudative age-related macular degeneration of both eyes, right greater than left; and, cataracts of both eyes; pseudophakia; and, refractive error of both eyes. The examiner noted that macular degeneration is well documented as a senile disease, and there was no evidence that correlated the disease with the Veteran's reported in-service experience. Thus, it was not at least as likely as not that the Veteran's macular degeneration was causally related to his active service. The examiner opined further that the Veteran's bilateral cataracts and pseudophakia were also age-related. In an a statement dated in August 2012, the Veteran's son noted that the main point he sought to make in his hearing testimony was that the Veteran entered service with better than 20/20 vision, and his duties caused him to be discharged with poor vision. He included a photograph of the Veteran wearing glassed while in his 30s. As noted in the Introduction, the Board remanded the case again so the examiner could further address the Veteran's assertion that his in-service exposure to CRTs was the genesis for his macular degeneration, and also whether the other diagnosed disorders were related to service. The February 2013 addendum reflects the examiner noted the Veteran did not articulate a specific basis for his belief his reported in-service exposure to CRTs was the cause of his macular degeneration. The examiner noted further that he would not speculate on any potential causative relationship. The examiner then noted; however, that the examination revealed the Veteran's right eye lens demonstrated a degree of lens opacity of a magnitude and nature that was less than what would be expected for a person of the Veteran's age profile. The examiner noted that most of the small amount of radiant energy of high energy type emitted by CRTs would be absorbed by the structures anterior to the retina, including the crystalline lens. Thus, the examiner observed, anyone who asserted exposure to CRT radiant energy is the source for lens opacity would also have to explain why, some 60 years after the claimed exposure, the amount and nature of the Veteran's lens opacity is entirely compatible with the crystalline lens of an 85-year-old person. Thus, the examiner explained, he continued to opine it was less likely than so that the Veteran's macular degeneration is causally related to his active service. Instead, the Veteran's macular degeneration more likely represents the expression of the natural history of age-related changes in lens and retina structure, with consequential alterations of function that manifests as blurred vision from ordinary hyperopic astigmatic refractive error correctible with ordinary lens; senescent lens opacity clinically evident as opacity; and age-related degenerative change of the central retina as age-related macular degeneration with loss of central vision. As found at the December 2011 examination, the Veteran's manifested grade 2+ nuclear cataract right eye with hyperopic astigmatic correcting lens for the right eye in the Veteran's mid-eighties. As a result, neither the macular degeneration, the bilateral cataract, nor the bilateral pseudophakia, is causally related to the Veteran's active service, to include exposure to CRTs. As concerns the Veteran's need for vision correction via eye glasses at approximately age 30, the examiner noted it was common for hyperopic astigmatic refractive error to present at that age, as patients were troubled by progressive loss of ability to accommodate with aging beyond youth. At around age 85, the Veteran manifested hyperopic spherical correcting lens power over one diapter. The examiner's rationale for his opinions is adequate, as it is based on a review of the claims file, examination of the Veteran, and consideration of the relevant medical literature. See Nieves-Rodriguez, 22 Vet. App. at 304. The Board notes the examiner's notation in the December 2011 examination report that macular degeneration was well documented as a senile disease, and there was no evidence that correlated the disease with the Veteran's reported in-service experience. The Board also notes that the general literature on CRTs submitted by the Veteran states that there is no scientific evidence that computer work causes permanent eye damage. While a lay person is capable of identifying and reporting a decrease in visual acuity, identifying or opining on the specific etiology for loss of visual acuity is beyond the training and experience of the average lay person. See 38 C.F.R. § 3.159(a)(1); see also Jandreau, 492 F.3d at 1377. Further, there is no evidence the Veteran or his son has medical training. Thus, to the extent the Veteran or his son may opine that there is a causal connection between the Veteran's macular degeneration and his other eye diseases, their opinions are not probative on the issue. Id. In light of all of the above, the Board is constrained to find the preponderance of the evidence is against the Veteran's claim. 38 C.F.R. § 3.303. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim(s), however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for bilateral loss of vision. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs