Citation Nr: 1318137 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 03-05 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for residuals of eye injuries. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1975 and July 1979 to October 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In pertinent part, that rating decision denied service connection for residuals of eye injury. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an October 2003 video conference hearing. A transcript of the hearing is of record. During the appeal process, the claim was remanded on numerous occasions. Most recently, the claim was remanded in September 2012 for additional VA examination in that previous evaluations in 2007 and 2012 were inadequate. The case has now been returned to the Board for further appellate consideration. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDINGS OF FACT 1. The evidence of record does not establish a nexus between the Veteran's eye disabilities and service. 2. Presbyopia/refractive error are not disabilities for which service connection may be granted under VA regulations. CONCLUSION OF LAW The criteria for the establishment of service connection for eye disabilities are not met. 38 U.S.C.A. §§ 1110, 1131 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 4.9 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in May 2001, May 2004, and June 2010) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the Veteran about the information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence he was expected to provide. The United States Court of Appeals for Veterans Claims (Court) held that the 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, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in a letter dated in August 2007. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements from the Veteran and his representative. The record also includes Social Security Administration (SSA) decisions and treatment records. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. Next, the appellant was afforded the opportunity to testify before the Board in October 2003. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned VLJ essentially elicited testimony necessary to determine the nature of the appellant's claim regarding his eyes. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. By contrast, the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. In October 2012, the Veteran's claims file was reviewed by a VA physician for opinion as to the etiology of eye disorders. As explained below, the Board finds the October 2012 medical opinion to be adequate to address the current claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the appellant is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). Establishing service connection generally requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 United States Court of Appeals for the Federal Circuit (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."). 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 (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. 38 C.F.R. § 3.303(d) (2012). VA regulations provide that refractive errors of the eyes are congenital or developmental defects and not disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9 (2012). In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9 (2012). Thus, VA regulations specifically prohibit service connection for refractive errors of the eyes unless such defect was the subject of aggravation by a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental, or familial origin, unless the defect was subject to a superimposed disease or injury). 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) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2012). Analysis Review of the claims file reflects that the historical background pertaining to the current claim has been summarized on numerous occasions, to include upon Board remand decisions in May 2004, May 2010, and most recently, in September 2012. For purposes of efficiency, it will not be repeated in its entirety here, but it is pointed out that the entire claims file has been reviewed in making the determination reached here regarding entitlement to service connection for eye disorders. The historical background reflects that the Veteran was treated in 1981 subsequent to an eye injury and in 1984 for eye injuries pertaining to exposure to eye irritants. In 1983, he was treated for eye symptoms, to include irritation. Post service, he was seen for right eye conjunctivitis in 1992. In 2003, the Veteran testified that he had had dry eye syndrome (sicca syndrome) ever since service. Private treatment records corroborate the presence of this disorder in 2003, but they do not address when the condition originated. Also a private physician diagnosed Sjogren's syndrome in 2003. When examined by VA in April 2005, a history of having battery acid injury in both eyes was noted. There were no signs of scarring of the conjunctiva or cornea. His dry eye was assessed. VA examination in August 2007 resulted in diagnoses of blepharitis and refractive error. The examiner opined that these conditions were not related to service. The Board remanded the claim for additional eye examination in May 2010, noting that the August 2007 examination was inadequate to address the current claim in that the examiner did not provide opinion as to the etiology of dry eye or blepharitis. The requested examination was conducted in March 2012. In the Board's September 2012 remand, it was concluded that the March 2012 examination was also inadequate in that the examiner did not provide an explanation to support his opinion that the Veteran's eye disorders were unrelated to service. Upon VA eye evaluation in October 2012, the examiner noted that he had reviewed the claims file prior to the exam. The examiner was specifically requested to address whether blepharitis, dry eye, or pinguecula were related to service. It was noted that the Veteran had an ocular impairment, but it would not be expected to affect his occupational functioning. The examiner noted that the diagnosis was also not a residual of inservice eye trauma. He also opined that it was unlikely that the Veteran's ocular impairment was caused or aggravated by military service. For rationale, the examiner noted that evaluation demonstrated mild dry eye and posterior blepharitis. He added that both conditions were very commonly placed in daily practice and were treated with lid hygiene and ocular lubricants. All of the occurrences of inservice chemical trauma resolved without long-term effects (in that each occurrence was treated and no further follow-up was necessary). The examiner stated that if there were permanent effects, scarring would also likely be apparent. All corrective measures were palliative to improve the Veteran's comfort. Another aspect was that he was currently taking three hydrating medications which listed dry mucous membranes as a side effect. The examiner noted that the three medications were diphenhydramine, laratadine, and hydracholorothiazide. In further detail, the VA examiner addressed specific questions as posed in the Board's 2012 remand. For example, as to when blepharitis had its onset, the examiner found that the first mention of this condition in the claims file was in January 2013. This condition was noted to affect all ages but was more common as individuals aged. The examiner's review of the record showed nothing that was known to cause this disorder. The examiner stated that it was possible that blepharitis was present during service but caused no symptoms, so there was no documentation. As to the Veteran's dry eye condition, the examiner noted that the Veteran first reported this at his 2003 hearing. It was further noted that there was no evidence of or complaint of dryness in any of the medical visits for the inservice chemical burns. It was noted that dry eye was more common in older populations, and that this condition might result from the Veteran's medications. Dry eye syndrome could be symptomatic in early stages, but without symptoms, dry eye was not diagnosed or treated. As to pinguecula, this condition was also more common in older populations. It was found in younger people who lived near the equator or who spent a lot of time in dry and dusty environments. It was linked to exposure to the elements (i.e., sun, wind, and dust). The examiner noted that dry eye and posterior blepharitis could be related to the formation of pinguecula. These conditions would exacerbate the effects of exposure to the elements. As indicated, the Veteran has been diagnosed with a variety of eye disabilities over the years, to include blepharitis, dry eye, and pinguecula. In order for these disabilities to be recognized as service connected, the medical evidence of record must establish a link between such and an inservice injury or disease. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309; Shedden and Hickson, supra. Initially, as to refractive error of the eyes, this is not a disease or injury within the meaning of the applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9 (2012). The only possible exception is if there is evidence of additional disability due to aggravation during service by a superimposed disease or injury. See Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90 (July 18, 1990); VAOPGCPREC 82-90 (July 18, 1990); and VAOPGCPREC 11-1999 (Sept. 2, 1999). The Veteran has not alleged that his refractive error was aggravated during service nor does the medical evidence of record does suggest such aggravation. To the extent that the Veteran's eye disabilities include refractive error, the claim is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Evidence linking the Veteran's current eye disabilities (other than a refractive error) to his inservice treatment for eye injuries or residuals of the injuries has not been received. The October 2012 VA examiner found that the Veteran's eye disabilities were less likely than not related to his service as each condition was more likely to be found in older populations. Pinguecula was found in younger people but this included exposure to the elements. Clearly, the Veteran would have been treated for symptoms of any of these eye conditions during service if they were present. To find that they could have been present during service, though not causing symptoms, would be amounting to mere speculation. Service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102 (2012). See also Slater v. Principi, 4 Vet. App. 43 (1993). The 2012 VA examiner further noted that the Veteran's inservice eye symptoms resolved as indicated by the fact that the record did not reflect follow-up treatment after the initial treatment. Moreover, each of the current eye disorders was first described or medically noted many years after service. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom; Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). The Veteran is not competent to opine as to the etiology of his current eye disabilities as it requires medical and scientific expertise and study to be able to provide such an opinion. While a layperson can provide evidence as to some questions of etiology or diagnosis, the question of a medical relationship between his eye disabilities and service, which would require more than direct observation to resolve, is not in the category of questions that lend themselves to resolution by lay observation. Cf. Jandreau and Barr, supra; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Thus, the Veteran is not competent to opine on this question, and his statements asserting a relationship between his eye disabilities and service are not probative as to this question. As the evidence is against finding a nexus between the Veteran's eye disabilities and service, reasonable doubt does not arise and the claim is denied. 38 U.S.C.A. §5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for residuals of eye injuries is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs