Citation Nr: 1313751	
Decision Date: 04/24/13    Archive Date: 05/03/13

DOCKET NO.  11-34 080	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Wichita, Kansas


THE ISSUES

1.  Entitlement to service connection for right eye corneal scar, status post removal of metallic fragment.

2.  Entitlement service connection for a right eye disorder (other than right eye corneal scar).



REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel



INTRODUCTION

The Veteran served on active duty from April 1957 to April 1959.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.

In April 2012, the Board remanded this case for additional evidentiary development.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of service connection for right disorder (other than right eye corneal scar) 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

The Veteran has a right eye corneal scar due to the post service removal of a metallic fragment that entered his right eye in service.



CONCLUSION OF LAW

The criteria for service connection for a right eye corneal scar status post removal of metallic fragment are met.  38U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of the claim herein granted.  In addition, the evidence currently of record is sufficient to substantiate entitlement to the benefit sought.  Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011) or 38 C.F.R. § 3.159 (2012).

Legal Criteria

Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 (2012).

Analysis

The Veteran seeks service connection for right eye disability.  He stated that he injured his right eye in service when steel pieces entered the eye, causing him to have pain and blurred vision.  He indicated that a medic attempted to dust the fragments from his eye, but that a metal fragment was medically removed in 1960 and that he developed a corneal ulcer around 1962.  The Veteran argues that scar tissue forming in the eye has caused right eye strain, fatigue, and blurred vision.  The Veteran reports that right eye pain and blurred vision began in service and has continued since that time.

Having carefully reviewed the evidence of record, the Board finds that the evidence supports the claim for service connection for right eye corneal scar status post removal of metallic fragment.  The Board notes that, because the Veteran's service treatment records are largely missing through no fault of his own, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).

While there is an absence of documentary medical evidence dating from service corroborating the Veteran's injury or treatment in service and soon after service, the Board finds that the Veteran is both competent and credible in his report of the onset of right eye problems in service, his report of metallic fragments entering his right eye in service, and his report that a metallic fragment was removed in 1960 from the right eye.  Layno v. Brown, 6 Vet. App. 465 (1994).  See also Falzone v. Brown, 8 Vet.App. 398, 405 (1995).  Lay assertions such as the Veteran's may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006).  Therefore, the Veteran's statements are highly probative.

The Veteran's statements, coupled with the August 2012 VA medical opinion indicating that exam showed a 1/2 millimeter (mm) faint corneal scar classic of removal of a small metallic superficial corneal foreign body and the examiner's opinion that this corneal scar "is at least as likely as not" caused by the removal of the metal fragment in1960, weighs in favor of the claim.  The VA medical opinion in this regard is highly probative.

Accordingly, resolving all doubt in favor of the Veteran, the claim for service connection for corneal scar of the right eye is granted.
ORDER

Service connection for a right eye corneal scar status post removal of metallic fragment is granted.


REMAND

VA treatment records dated since early 2000 reflect diagnoses for blurred vision, hyperopia, astigmatism with presbyopia, and an old corneal scar.  A July 2002 VA treatment note reflects an assessment for hyperopia, astigmatism with presbyopia, and "ocular health normal."  The Veteran presented for vision complaints in March 2004, stating that he was "not seeing well up close to read."  The assessment was the same as previously and glaucoma suspect of the eyes.  In December 2005, the Veteran complained of a having a foreign body sensation in his right eye with redness, assessed as a benign subconjunctival hemorrhage.  In June 2010, the Veteran complained of blurry vision of the right eye and noted recent TIA attacks.  Ocular history noted old corneal scar of the right eye.  The assessment was hyperopia, astigmatism with presbyopia of the eyes, and old corneal scar of the right eye.

In August 2012, a VA eye examination was conducted by T. Lutz, O.D. (optometrist).  He diagnosed the Veteran with corneal scar of the right eye, and posterior subcapsular cataract of both eyes.  There was no decrease in visual acuity or other visual impairment attributable to corneal condition of the right eye or preoperative cataract of both eyes.  Exam showed no impairment of visual field.  The Veteran provided a detailed history of right eye injury in service, prior to 1959, when his eye became irritated, painful, reddened and teary after an artillery exercise.  By history, a medical corpsman wiped out the eye in an attempt to remove any foreign particles, but he continued to feel right eye irritation and discomfort for years afterward.  By history, he sought medical care and a metallic foreign particle was removed from his right eye in 1960.  The Veteran reported that, afterwards, the comfort of his right eye returned to normal.  Also, by history, in 1962, the Veteran had recurrence of eye irritation, pain, redness, and tearing that progressed over several months, which was assessed as an ulcer on the surface of his right eye.  He reported that the right eye was scrapped on two occasions, patched, and treated with medicated drops for a period of several months.  He stated that the right eye healed and returned to normal.  The examiner noted that the Veteran had hyperopic refractive error of the eyes that had increased over the years, but was expected in hyperopic individuals.  However, he opined further that:

Given the situation that the right has more hyperopia than the left, . . . [it] is as least as likely as not this additional hyperopia was subjected to the superimposed corneal ulcer that the veteran had in 1962.

[T]here is a second corneal scar. . . of the right eye. . . [The second] corneal scar is at least as likely as not have been caused by the corneal ulcer that the veteran experienced in 1962.  It is also opined that the corneal ulcer that caused the irregularly shaped corneal scar did not have its onset during active duty.

A supplemental VA medical opinion dated in November 2012 by Dr. Lutz reflects that he reviewed the claims file then opined that the claimed condition "is less likely as not" proximately due to or the result of the Veteran's service.  His rationale was as follows:

The Veteran developed a corneal ulcer of the right eye in 1962.  Prior to this, the Veteran experienced irritation, pain, redness and tearing of the right eye in 1959, from an injury he suffered, while on active duty, stationed in Korea.  This irritation, pain, redness and tearing of the right eye continued from 1959 to 1960, when a foreign particle was removed from the right eye.  After the foreign particle was removed, the comfort of the right eye returned to normal.

The Board notes that the doctor did not provide any explanation connecting his opinion to the clinical history recited as a rationale.
As such, the RO obtained another medical opinion.  A February 2013 VA medical opinion by L. Terry-Choyke, DPM reflects generically that "It is less likely than not that the Veteran's claimed right eye condition to include residuals from corneal scar [is] proximately due to an event, or injury sustained while in service."  Her rationale was that, because service treatment records and clinical records associated with the Veteran's treatment in the 1960s are missing, she was unable to render an opinion on causation.  But, then she opined that, based on the Veteran's medical history and the definition of corneal ulceration, it was "LESS LIKEY THAN NOT that an ulceration of the cornea was proximately due to or caused by a foreign body obtain in 1959 or removed in 1960."  Rather, she stated that "It is as least as likely as not that the ulceration, regardless of cause, was acute in nature rather than chronic."

Having carefully reviewed the recent VA medical opinions, the Board finds that they are inadequate.  The November 2012 medical opinion neglects to connect the opinion with the clinical history recited as a rationale, and the February 2013 medical opinion is wholly incongruous-as the doctor reports that an opinion cannot be rendered without resort to speculation but then renders an opinion without any discernible rationale.  Therefore, the Board believes that a new medical opinion is necessary by a qualified medical professional in the field of ophthalmology capable of providing an opinion and a clear explanation for that opinion based on the Veteran's medical history, clinical findings, medical literature, or medical expertise.  A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record.  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

It is noted that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand.  Where remand orders of the Board are not complied with, the Board errs in failing to insure compliance.  Stegall v. West, 11 Vet. App. 268 (1998).


Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Schedule the Veteran for a VA eye examination by an ophthalmologist to determine the etiology of the Veteran's 1962 right eye corneal ulcer and any current residuals thereof; hyperopia, astigmatism with presbyopia of the right eye; and any other eye disorders shown (other than the 1/2 mm corneal scar status post removal of metallic fragment) to include developmental defects present in the right eye.

The claims files must be made available to and be reviewed by the physician along with a copy of any pertinent medical records located in Virtual VA that are not in the claims files.

The physician should accept the Veteran's report of injury, symptoms, and treatment as truthful unless otherwise indicated by the record.

The physician should answer the following questions:

(a) As to any refractive error found in the right eye (which is defined by regulations as a development defect), the examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such defect was subjected to a superimposed disease or injury in service, which created additional disability.

(b) As to any other disability found in the right eye (other than service-connected 1/2 mm corneal scar status post removal of metallic fragment), the examiner should express opinions as to whether it is at least as likely as not (50 percent probability or greater) that such disability had its onset in service or is otherwise related to any event or incident of service.

The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.

A complete rationale for all opinions is required.  The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusions

If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).

2. Then adjudicate the claim for service connection right eye disorder (other than right eye corneal scar status post removal of metallic fragment).  If the decision remains adverse to the Veteran, he and his representative should be provided with a supplemental statement of the case and given an appropriate period of time to respond.

The Veteran 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 LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs