Citation Nr: 1315475 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 11-08 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES Entitlement to service connection for visual disorders, to include as secondary to the Veteran's service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: Nebraska Department of Veterans' Affairs ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In February 2012, the Veteran testified at a Decision Review Officer (DRO) hearing. A copy of the transcript is of record. The Board notes that in the appellant's VA Form 9, Appeal to the Board of Veterans' Appeals, received in March 2011, the Veteran indicated that he wanted to have a Board hearing at the local RO. However, in a May 2012 statement, the Veteran's representative indicated that the Veteran does not want any further hearings, but requests that his appeal go directly to the Board for review. As such, the Board hearing request is considered withdrawn, and the Board will proceed with its adjudication of the appeal. See 38 C.F.R. § 20.704(d) (2012); accord Anderson v. Brown, 9 Vet. App. 542, 546-47 (1996). The Board has reviewed the contents of the Veteran's Virtual VA file and found no medical or other evidence pertinent to this appeal that is not in this claims file. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran is service-connected for diabetes mellitus, type II with mild diabetic neuropathy on the fingertips of hands, evaluated as 20 percent disabling. 3. The competent and probative medical evidence of record preponderates against a finding that the Veteran currently has visual disorders that are due to any incident or event in military service, or that are proximately due to, the result of, or aggravated by the Veteran's service-connected diabetes mellitus, type II. CONCLUSION OF LAW Visual disorders were not incurred in or aggravated by the Veteran's active military service, nor is it secondary to the service-connected diabetes mellitus, type II. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5.103(a) (West Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by the June 2010 and July 2010 letters sent to the Veteran. In the letters, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. Additionally, he was informed of the evidence necessary to substantiate the claim for service connection on a secondary basis. The letter stated that he must show evidence of the claimed physical condition and a relationship between the claimed condition and service or a service-connected condition. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed him it had to obtain any records held by any federal agency. The letters also informed him that on his behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the RO told the Veteran that he could obtain private records himself and submit them to VA. 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. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the June 2010 and July 2010 VCAA letters to the Veteran included the type of evidence necessary to establish a disability rating or effective date for the disability on appeal should the claim be granted. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West Supp. 2012); 38 C.F.R. § 3.159 (2012). In connection with the current appeal, VA has obtained the Veteran's service treatment records, VA outpatient treatment records, and private treatment records. The Veteran was also provided a VA examination in connection with his claim, which is found to be adequate for rating purposes. The examiner reviewed the Veteran's medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. The Board finds that the VA examination report is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2) (West Supp. 2012); 38 C.F.R. § 3.159(d) (2012); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Decision Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit held that a three-element test must be satisfied in order to establish entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1333 (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Id. However, claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b). See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases"). Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain in a claim for arthritis or abnormal heart action in a claim for heart disease) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service under subsection 3.303(b) is a distinct and lesser evidentiary burden than the nexus element of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added). Walker, 708 F.3d at 1338-1339. Thus, showing a continuity of symptomatology after service is an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation" for chronic diseases. Id. at 1338; see also id. at 1336 (observing that section 3.303(b) provides a "second route by which a veteran can establish service connection for a chronic disease"). A continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. at 1338. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the more relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. Thus, if the claimed disability is not one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "the 'nexus' requirement of the three-element test" must be satisfied in order to establish entitlement to service connection benefits. Id. For example, the Federal Circuit held in Walker that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as it found that the claimant's hearing loss was not among the chronic diseases listed in section 3.309(a)). Id. at 1336-37, 1340. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2012). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995) for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service-connected disability. See 71 Fed. Reg. 52744 (2011). The amendment sets forth language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). I n certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the clam or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his current visual disorders are attributable to his service-connected diabetes mellitus, type II. In this case, as will be explained below, the Veteran has been diagnosed with visual disorders, to include myopia, presbyopia, bilateral nuclear sclerotic cataracts, and bilateral pinguecula. In addition, service connection is in effect for diabetes mellitus, type II, with mild diabetic neuropathy on the fingertips of hands. Thus, the remaining question is whether or not the Veteran's current visual disorders are caused by the Veteran's service-connected diabetes mellitus, type II. The Veteran's service treatment records reflect no complaints, diagnoses, or treatment of any visual disorders. However, upon discharge from service, the May 1969 report of medical examination noted eye trouble for seven years with defective visual acuity. He was diagnosed with defective distant visual acuity in both eyes and defective near visual acuity in the right eye only. The Veteran also noted eye trouble on his report of medical history at separation in May 1969. Post service treatment records reflect complaints of blurry vision. In an August 2010 private medical statement, J.S., O.D. reported that the Veteran was seen for a routine eye examination in January 2010. During that visit, the Veteran complained of decreased near vision with his present prescription. Examination testing revealed myopia, astigmatism, and presbyopia in both eyes. At that time, his best corrected vision was 20/20 distance and 20/20 near with his new eye prescription. In March 2010, Dr. J.S. stated that the Veteran returned to the office and noted that his vision had recently begun to fluctuate greatly after he had been diagnosed with diabetes mellitus, type II. After an eye examination, Dr. J.S. noted that the Veteran had a large change in his prescription secondary to the change in his blood glucose levels; however, corrected vision acuity remained 20/20. In June 2010, the Veteran was afforded a VA eye examination. He complained of no visual or general symptoms relating to his eyes. Physical examination testing reflected normal funduscopic examination findings of both eyes with no diplopia present. There was no corneal disorder nor was his visual acuity worse than 5/200. Slit lamp findings were normal for both eyes and eye pressure was 16 mm Hg (millimeters of mercury) for both eyes. Visual acuity testing showed 20/20 corrected vision in both eyes. The VA examiner diagnosed the Veteran with diabetes mellitus without diabetic retinopathy of both eyes, myopia, and bilateral age-related combined nuclear and cortical cataracts. In September 2010, the Veteran was afforded a second VA examination to determine the etiology of his claimed visual disorders. The Veteran reported blurry vision in both eyes for the past six months. Upon physical examination of the Veteran, the VA examiner noted that funduscopic findings were normal for both eyes, and there was no diplopia or visual field defect. Slit lamp findings were abnormal, noting the presence of pinguecula in the sclera/conujunctiva and 2+ nuclear sclerotic cataracts with mild cortical changes. Eye pressure was 17 mm Hg, and there were no physical findings of abnormal lacrimal duct function, abnormal eyelids, chronic conjunctivitis, residuals of eye injury, lagophthalmos, symblepharon, ptosis, nystagmus, eyelash loss, or eyebrow loss. Central visual acuity testing revealed right eye corrected vision of 20/25 and left visual acuity of 20/25+1. The VA examiner diagnosed the Veteran with diabetes mellitus without diabetic retinopathy, presbyopia, bilateral nuclear sclerotic cataracts, and bilateral pinguecula. Upon review of the claims file and physical examination testing results, the VA examiner concluded that the Veteran has no diabetic retinopathy or cataract caused by diabetes. He stated that the presbyopia and bilateral nuclear sclerotic cataracts is age related and indicated that the bilateral pinguecula is related to chronic sun exposure and due to elastic degeneration of the conjunctiva. The VA As to the Veteran's visual changes, the VA examiner acknowledged that he has a history of numerous spectacle prescription changes in the past six months, which is likely caused by diabetes with changing blood sugars evidenced by hemoglobin A1C levels of 14.1 in March 2010 and 7.3 in June 2010. However, the VA examiner concluded that fluctuating spectacle prescriptions is not a visual disorder given that the Veteran's visual acuity remains good with correction. In support of his claim, the Veteran submitted a second private statement from Dr. J.S. dated October 2010. Dr. J.S. reported recently examining the Veteran in October 2010 following complaints of blurred vision. It was noted that his prescription had changed and his visual acuity with the new prescription was 20/20. Dr. J.S. concluded that the Veteran's frequent visual disturbances and change in glasses prescription is "100% due to his diabetic status." Based upon the evidence of record, the Board finds that the Veteran's visual disorders are not secondary to his service-connected diabetes mellitus, type II. As noted by the September 2010 VA examiner, the Veteran's presbyopia and bilateral nuclear sclerotic cataracts of both eyes are age-related. Additionally, the Veteran's bilateral pinguecula is related to chronic sun exposure and from elastic degeneration of the conjunctive. However, while both the VA examiner and Dr. J.S. have attributed the Veteran's numerous spectacle prescription changes to the Veteran's service-connected diabetes mellitus, type II, such changes have not resulted in an impairment of central visual acuity. As noted in the September 2010 VA examination report, central visual acuity testing reflected 20/25 corrected vision in the right eye and 20/20 corrected vision in the left eye. Furthermore, Dr. J.S. indicated in his October 2010 statement that after the most recent eye examination in October 2010, which resulted in a new prescription, his visual acuity remained 20/20 in each eye. Fluctuating spectacle prescription changes is not considered a diagnosed disability to which service connection may be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (Court stated "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and held "[i]n the absence of proof of a present disability[,] there can be no valid claim"); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); see Sanchez-Benitez v. Principi, 259 F.3d 1356 Fed. Cir. 2001) (symptoms alone, without a finding of an underlying disorder, cannot be service-connected.) As such, service connection for visual disorders, to include as secondary to the Veteran's service-connected diabetes mellitus, type II, must be denied. The Veteran's contention that his visual disorders, were caused or aggravated by his diabetes mellitus, type II, are outweighed by the September 2010 VA examiner's opinion to the contrary. Whether such a relationship may exist is a medical determination that is too complex to be made based on lay observation alone. Thus, as a layperson, the Veteran does not have the medical expertise to render a competent opinion on this issue. See Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309. There are no medical opinions or findings of record supporting a relationship between the claimed visual disorders and his diabetes mellitus, type II. Thus, none of the Jandreau factors with regard to when lay testimony may be competent are satisfied. See Jandreau, 492 F. 3d at 1376-77. Moreover, the Veteran has not offered any explanation or rationale in support of such a relationship. Thus, the September 2010 VA examiner's opinion against such a relationship, which was rendered by a medical doctor and supported by an explanation, has more probative value and carries more weight than the Veteran's unsupported lay contention. See King v. Shinseki, 700 F.3d at 1345; see also Layno, 6 Vet. App. at 469; Madden, 125 F.3d at 1481. Accordingly, the preponderance of the evidence is against a relationship between the Veteran's visual disorders and his service-connected diabetes mellitus, type II, either by way of causation or aggravation. Thus, the criteria for entitlement to service connection on a secondary basis have not been satisfied. See 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 448. The preponderance of the evidence also weighs against a direct relationship between the Veteran's visual disorders and his period of active service. The service treatment records do not show that a chronic eye disability manifested during service. As previously mentioned, service treatment records reflect no complaints, diagnoses, or treatment of any visual disorders. However, upon discharge from service, the May 1969 report of medical examination noted eye trouble for seven years with defective visual acuity. He was diagnosed with defective distant visual acuity in both eyes and defective near visual acuity in the right eye only. The Veteran also noted eye trouble on his report of medical history at separation in May 1969. Because these conditions (visual disorders) are not included in the chronic diseases listed in section 3.309(a), evidence of a continuity of symptomatology after service is not sufficient to support the claim, and instead the nexus element of the three-part test under Shedden must be satisfied to establish entitlement to service connection benefits. See Walker, 708 F.3d, 1338-39. The Veteran has not stated that he experienced ongoing symptoms or problems related to his eyes ever since active service, and there is no evidence of record suggesting otherwise. At the September 2010 VA examination, the Veteran stated that his visual disorders began approximately six months ago. The fact that there is no evidence of visual disorders for decades after service weighs against a relationship between these disorders and active military service. Further weighing against a relationship to service is the September 2010 VA examiner's findings that the Veteran's presbyopia and bilateral nuclear sclerotic cataracts are due to age and the bilateral pinguecula is related to chronic sun exposure and elastic degeneration of the conjunctiva. Accordingly, service connection is not warranted on a direct basis for the Veteran's visual disorders. See 38 C.F.R. § 3.303. Accordingly, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for visual disorders is denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for visual disorders, to include as secondary to the Veteran's service-connected diabetes mellitus, type II, is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs