Citation Nr: 1315399 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 09-36 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a bilateral eye disability. 2. Entitlement to service connection for the residuals of an injury to the left lower extremity, to include the left hip and left knee. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active duty service from May 1953 to April 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied service connection for injuries to the Veteran's eyes and lower extremities, to include left hip and left knee injuries. The Veteran's appeal was previously before the Board in October 2012, at which time his claim for entitlement to service connection for a right lower extremity disability was denied. The claims for entitlement to service connection for an eye disability and entitlement to service connection for a left lower extremity disability were remanded for additional development. They have now been returned to the Board for further appellate consideration. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. 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). FINDINGS OF FACT 1. The Veteran's left eye had visual acuity of 20/33 upon entrance into active service, with normal vision for the right eye. Both eyes were found to be normal. 2. The Veteran's current eye disabilities are not the result of a disease or injury in active service. 3. The Veteran's current left lower extremity disabilities are not related to a disease or injury in service. CONCLUSIONS OF LAW 1. A bilateral eye disability was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The residuals of an injury to the left lower extremity, to include a left hip disability and left knee disability, were not incurred in or aggravated by active service, nor may they be presumed to have been incurred due to active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 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; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2012). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. 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). 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. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In this case, the Veteran was provided with a letter in October 2007 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini. This letter was provided to the Veteran prior to the initial adjudication of his claims. The Board concludes that the duty to notify has been met. As for the duty to assist, the Veteran's service treatment records and personnel records have been obtained. Private medical records and VA treatment records have also been obtained. The Veteran has declined his right to a hearing. The October 2012 remand instructed that the Veteran should be asked to provide a copy of an opinion regarding the etiology of his left leg disabilities from his private physician. The agency of original jurisdiction complied with this instruction in January 2013, but the Veteran did not respond. He has not authorized VA to obtain additional information from the physician. Inasmuch as additional records have not been identified, VA has no further duties to obtain records. Further, because, as discussed below, he failed without good cause to report for a necessary examination, the Board must decide this appeal on the basis of the evidence of record. 38 C.F.R. § 3.655 (2012). As instructed in the October 2012 remand, the Veteran was scheduled for examinations of his eyes and left leg in February 2013. The Veteran failed to report for these examinations. A copy of the letter to the Veteran notifying him of the time and place for the examinations is not of record. However, the March 2013 supplemental statement of the case informed him of the finding that he had failed to report for the scheduled VA examinations. The Veteran has not reported any problems with the notice of those examinations, nor has he offered any explanation for the failure to report. The Board's remand had informed him of the reasons why those examinations were necessary. As there is no indication of any other relevant outstanding evidence, the Board concludes that the duty to assist has been met. Service Connection 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 (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of 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); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 U.S.C.A. § 1101 or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997) 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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 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." Lay evidence may also be competent, in some situations to establish a nexus between a current disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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"). If arthritis becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of arthritis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If arthritis is identified in service and at any time thereafter, no matter how remote, service connection will be conceded. 38 C.F.R. § 3.303(b). 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 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). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Eye Disability The Veteran argues that he has developed disabilities of the eyes and left leg due to injuries in service. He states that he was splashed in the eyes by white gas from a plumber's torch, and he believes that this injury led to the development of his current cataracts. The service treatment records include a January 1952 examination for entrance into the Naval reserves, when visual acuity was 20/20 in both eyes and no eye disability was noted. On examination in June 1952, visual acuity was again 20/20 in both eyes and no eye disability was reported. The April 1953 examination for entrance onto active duty shows that the Veteran had 20/33 vision of the left eye upon entering service, which was correctable to 20/20 with the use of a pinhole. The visual acuity of the right eye was 20/20. The noted defects included defective vision in the left eye, correctable to 20/20; but this was not considered to be disabling. (For VA purposes, visual acuity is a compensable disability when vision is 20/50 or worse. 38 C.F.R. § 4.79, Diagnostic Code 6063 (2012)). The examination report described both eyes as normal. The remaining service treatment records are negative for any complaints or injuries pertaining to the eyes. The April 1955 discharge examination found that the eyes were normal, although the 20/33 vision of the left eye was noted to have been identified upon entrance into active service. Post service medical records first note a disability of the eyes in a September 2009 VA treatment record when the Veteran complained of a loose frame on his reading glasses. Following an eye examination, the impressions were presbyopia and bilateral cataracts. No history or etiological opinion was offered. Private medical records from August 2010 state that the Veteran's problem list includes macular degeneration, age related. The current medical records include diagnoses of bilateral cataracts, presbyopia, and macular degeneration. At least cataracts and macular degeneration may be considered acquired disabilities. It follows that the requirement of a current disability has been met. The Veteran's reports of an eye injury in service are credible, and he is competent to report this injury and treatment. Hence, the requirement for an in-service disease or injury is also satisfied. The evidence, however, fails to establish a link between the in-service injury and a current eye disability. In its previous remand, the Board recognized that eye injury was a recognized risk factor for cataracts. There is; however, no competent evidence that the in-service injury is, as likely as not, the cause of the current cataracts. Lay evidence can in some circumstances be competent to provide evidence of a nexus between a current disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The courts have not explicitly laid out the circumstances in which lay evidence would be sufficient, but case law suggests that a lay person could note the immediate consequences of an in-service injury. See Trafter v. Shinseki, No. 10-3605. slip op. at 17 (Vet. App. Apr. 29, 2013) (veteran's report of depression following alleged failure to promptly treat him was evidence indicating a relationship between an injury and current disability). The Veteran asserted in his substantive appeal that the current cataracts "may" be related to the in-service injuries. It would; however, require medical expertise to say that the in-service injury as opposed to some other factor caused the cataracts that were first identified in 2009, when he was 75 years old. Because, there is no indication that the Veteran possesses the necessary medical expertise, his opinion as to the relationship between the in-service injury and the current cataracts is not competent evidence. 38 C.F.R. § 3.159(a) (2012). There is no other evidence that the Veteran's cataracts are at least as likely as not related to the in-service injury. The mere possibility that it is related to such an injury; is insufficient to place the evidence in equipoise. See Bostain v. West, 11 Vet. App. 11 Vet. App. 124 (1998); Obert v. Brown, 5 Vet. App. 30 (1993). The Veteran also has macular degeneration and presbyopia. He has not provided any specific argument that these conditions should be service connected. The Veteran's medical records show that his macular degeneration is age related, and there is no contrary opinion. Without evidence of a relationship between this disability and service, the evidence is also against service connection for macular degeneration. Presbyopia is defined as "impairment of vision due to advancing years or to old age." Dorland's Illustrated Medical Dictionary 1511 (32d ed.2012). Service connection for a refractive error of the eye, cannot be granted because it is not considered a disability for VA purposes. 38 C.F.R. §§ 3.303(c), 4.9. Even if presbyopia were considered a disability for VA purposes, there is no evidence relating this condition to a disease or injury in service. Defective vision of the left eye was purportedly identified on the examination when the Veteran was accepted for active service; but defective vision, much less presbyopia was not identified at any time during actual active service. To the extent that defective vision was identified on the entrance examination, the presumption of soundness would not be applicable, and there is no evidence that it increased in severity during service, as such service connection could not be be granted on the basis of aggravation. 38 U.S.C.A. § 1111, 1137, 1153; 38 C.F.R. § 3.306 (2012); see VAOPGCPREC 82-90 (O.G.C. Prec. 82-90). Ultimately, the evidence is against a finding that any current eye disability is the result of a disease or injury in active service. As the weight of the evidence is against the claim, reasonable doubt does not arise and the claim is denied. Left Leg Disability The Veteran reports that he injured his left leg in a ski accident in service in January 1955. He relates that he dislocated his left hip in the fall, and that it was put back into place on the slope by paramedics. He states that he was hospitalized for three to five weeks following this injury. The service treatment records are completely negative for evidence of a left leg disability. There is no evidence of any left leg injury, complaints, or treatment. The April 1955 discharge examination found that the lower extremities were normal, and the Veteran did not report any history of pertinent injury. The medical evidence shows that the Veteran was discovered to have severe arthritis of both the left knee and left hip in 2006, which necessitated arthroplasty of the left knee in 2007 and left hip in 2009. The requirement of a current disability has been met. The Veteran's report of the in-service injury is competent. However, the Board does not find that his reports are credible because the contemporaneous records show that the ski injuries were to the right ankle and knee, and not the left hip. The record also shows that he was discharged from hospitalization approximately 8 days later. X-rays of the right knee and ankle were negative. Given that the contemporaneous medical records describe the treatment for sprains to the right ankle and knee, it does not seem plausible that dislocation of the left hip or sprain of the left knee sustained in the same accident would have been ignored. Further, when the left knee problem was identified in May 2006, a history was recorded, but this included no mention of an in-service injury. No history of an in-service hip injury was reported in January 2009, when the left hip disability was identified. Moreover, there is no competent evidence that the Veteran's current left hip and knee disabilities are related to an injury during active service. The Veteran has not reported a continuity of symptomatology, and the treatment records also disclose no evidence of continuing symptoms since service. There is also no medical opinion linking the current disabilities to a disease or injury in service. The Veteran has stated that he was told by a private doctor 30 years ago that he had X-ray changes that could have only been the result of the ski injury in service, but he does not indicate if this opinion related to the right leg or the left leg. Medical records have been obtained from the source identified by the Veteran but they do not contain the relevant opinion described by the Veteran or even a history of injury in service in the subsequent records. The Veteran is not shown to have any specialized medical knowledge, and he is not competent to relate his claimed remote injury in service to arthritis of the left knee or left hip that was identified long after service. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran failed to report for the VA examinations that were scheduled in order to obtain such an opinion, and no other competent medical opinion has been presented. There is no evidence that arthritis of the left knee or left hip was identified in service or during the first year following discharge from service, and therefore service connection cannot be presumed. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309, Therefore, the preponderance of the evidence is against the Veteran's claim, reasonable doubt does not arise and entitlement to service connection is denied. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for a bilateral eye disability is denied. Entitlement to service connection for the residuals of an injury to the left lower extremity, to include the left hip and left knee, is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs