Citation Nr: 1318325 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-22 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for right eye blindness. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran had two distinct periods of active duty from March 1976 through March 1979 and from March 1979 through July 1980. A May 1994 administrative decision determined that the Veteran's first period of service, from March 1976 through September 1978, ended under honorable conditions; however, also determined that the Veteran received a dishonorable discharge from his second period of service, from March 1979 through July 1980. Such a discharge is a bar to the payment of VA benefits unless it is found that the servicemember was insane at the time of the commission of the offense causing such discharge or release, unless otherwise specified. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). For that reason, VA benefits may not be paid to the Veteran for any disabilities related to his second period of service from March 1979 through July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. A timely Notice of Disagreement (NOD) was received from the Veteran later that month. After a Statement of the Case (SOC) was issued in June 2009, the Veteran perfected his appeal in June 2009, via VA Form 9 substantive appeal. In April 2011, the Board remanded this matter for further development, to include efforts to obtain additional outstanding records pertaining to private treatment that was reportedly rendered to the Veteran at St. Mary's Hospital in 1984 and at St. Luke's Hospital in 1998. After efforts to perform this development were undertaken by the Appeals Management Center (AMC) in Washington, D.C., the matter was returned to the Board. In August 2012, the Board determined that another remand was required in order to locate and associate with the claims file a June 2011 VA eye examination report that was referenced in a May 2012 supplemental SOC. The Board directed further that the RO or AMC also make additional efforts to locate and obtain any other outstanding VA treatment records. Once again, the AMC undertook efforts to perform the directed remand action before returning the matter to the Board. In January 2013, the Board determined that the efforts undertaken by the AMC following the previous remands were insufficient. In that regard, the Board noted that written attempts made in April and July of 2011 to contact the Veteran and to obtain signed VA Form 21-4142 releases for records from St. Mary's Hospital and St. Luke's Hospital were undelivered and returned to AMC by the postal service. As there was no indication in the record that the release authorizations to obtain the private treatment records identified in the April 2011 Board remand were ever received by the Veteran, the Board determined that a third remand was required to insure compliance with the April 2011 remand directive. Stegall v. West, 11 Vet. App. 268 (1998). Further action to comply with the Board's previous remand instructions have been undertaken by AMC. This matter now returns to the Board once again. The Board is satisfied that the previously directed development actions have been performed and is prepared to proceed with its de novo consideration of the issue on appeal. As a final preliminary matter, the Board notes that this appeal also initially included the issues of the Veteran's entitlement to service connection for residuals of frostbite injuries to his hands and feet and service connection for depression. These claims, however, were denied by the Board in the April 2011 and August 2012 decisions. FINDINGS OF FACT The Veteran has right eye homonymous hemianopsia (also known as right eye optic radiation defect with macular sparring) that did not have its onset during active service, nor is it shown to otherwise be related to active service. CONCLUSION OF LAW The criteria for service connection for right eye blindness have not been met. 38 U.S.C.A. §§ 1103, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Such notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A June 2008 pre-rating letter provided the Veteran with notice of the information and evidence needed to substantiate his claim for an increased disability rating for his service-connected right shoulder bursitis. Consistent with Dingess, this letter included notice of the process in which VA assigns disability evaluations and effective dates. Subsequently, the Veteran's claim for a higher disability rating was adjudicated in the RO's November 2008 rating decision. Thus, because the VCAA notice in this case was legally sufficient, VA's duty to notify in this case has been satisfied. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. His service personnel records, claims submissions, lay statements, and VA treatment records have been obtained and associated with the record. As noted above, this matter was most recently remanded in January 2013 to obtain private treatment records from St. Mary's Hospital in 1984 and at St. Luke's Hospital in 1998. Following the January 2013 remand, AMC mailed to the Veteran at his current address a new January 2013 letter requesting that he provide signed VA Form 21-4142 releases for private treatment records from St. Mary's Hospital and St. Luke's Hospital. There is no indication in the record that this letter did not reach the Veteran, and indeed, the Veteran did respond to a Supplemental Statement of the Case that was mailed to that address in March 2013. Nonetheless, the Veteran did not respond to AMC's request for signed releases. The Board admonishes that VA's duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam). Under the foregoing circumstances, VA will not expend further efforts to obtain the private treatment records from St. Mary's Hospital and St. Luke's Hospital. Rather, the Board will adjudicate the issue on appeal based upon the evidence that is currently of record. The Board notes that the Veteran has not been afforded a VA examination to determine the nature and etiology of his right eye disorder. Although a Supplemental Statement of the Case in May 2012 had made a reference to a June 2011 VA eye examination, it was clarified following Board remand that a VA compensation and pension examination had never been requested or conducted in regard to this claim. In any event, the Board does not find that such an examination is warranted in this case given the absence of competent and credible evidence of either an in-service right eye injury or illness, or a relationship between his current right eye disorder and his initial period of active duty service. 38 C.F.R. § 3.159(c)(4). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. 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 competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). In his claims submissions, the Veteran simply asserts generally that he is entitled to service connection for right eye blindness. He does not allege any specific in-service right eye injuries or advance any specific theories as to how his current eye disorder may be related to his initial period of active duty service. The Board notes that service treatment records in the claims file consist only of a May 1980 separation examination report and accompanying Report of Medical History completed by the Veteran. The separation examination report notes that a clinical examination of the Veteran's eyes was normal. In the Report of Medical History, the Veteran explicitly denied having any eye trouble and reported that he had vision in both eyes. As noted in an August 2008 memorandum prepared by the RO, the Veteran's complete service treatment records cannot be located and are unavailable for VA's review. As also documented in the claims file, in connection with other claims previously filed by the Veteran in 1994, the RO had previously made multiple attempts to locate the service treatment records. In that regard, an initial request for the records was made to the National Personnel Records Center (NRC) in January 1994. The NPRC responded by providing the aforementioned separation examination report and Report of Medical History. In a January 1994 letter, the RO notified that the Veteran that it was experiencing difficulty in retrieving his service treatment records and asked the Veteran to provide any service treatment records in his possession, or alternatively, information that would assist the RO in locating his service treatment records. A follow-up request was apparently made to NPRC, and in June 1994, the NPRC responded that all service treatment records for the Veteran in its possession had been forwarded in February 1994. While the RO's follow-up request to NPRC was pending, in May 1994 the Veteran provided a completed NA Form 13055 in which he provided his locations of assignment and approximate dates of in-service treatment. This information was provided to the NPRC in a third request made by the RO in July 1994; however, in a September 1994 response the NPRC advised again that all service treatment records in is possession had been provided. After receipt of the Veteran's June 2008 claim, the RO notified the Veteran once again that his service treatment records were unavailable and requested again that the Veteran provide any records in his possession or information as to their possible whereabouts. No further records or information in that regard were received from the Veteran. Under 38 C.F.R. § 3.159(c)(2), VA must make as many requests as necessary to obtain relevant records from a Federal department or agency. Such records include service treatment records. Under the regulation, VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records will be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency notifies VA that the requested records do not exist or that the custodian does not have them. Here, multiple efforts by the RO to obtain the Veteran's complete service treatment records through NPRC have been fruitless, and NPRC has notified the RO that all records that were in its possession have already been provided. Similarly, the Veteran does not appear to possess any more service treatment records or have any more information that may direct further inquiries by the RO for the service treatment records. Under the circumstances, the RO has exhausted all avenues in locating the service treatment records. As such, the Board will simply consider the Veteran's claim based upon the evidence that is currently of record. In instances where service records are unavailable, VA has a heightened obligation to explain findings and to carefully consider the benefit-of-the-doubt rule in cases where presumed destroyed while in custody of the government. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The benefit-of-the-doubt rule states, where there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2003). Notwithstanding the foregoing, the Board finds that the preponderance of the evidence in this case is against the Veteran's claim. In that regard, the Board notes that the post-service VA treatment records show that the Veteran has a current right eye homonymous hemianopsia (also known as right eye optic radiation defect with macular sparring) that has been manifested by decreased visual acuity and loss of visual field in the right eye. Nonetheless, there is simply no evidence in the record that the current right eye disorder was sustained during, or is related in any other way to, the Veteran's first period of service. As noted above, the Veteran's May 1980 separation examination report shows that no eye abnormalities were noted at the time of the Veteran's separation from service. Indeed, the accompanying Report of Medical History also shows that the Veteran expressly denied having any prior or current history of eye or vision problems. Post-service VA treatment records show that the Veteran has a current right eye disorder diagnosed as homonymous hemianopsia. Nonetheless, the records also reflect that, throughout the course of treatment, the Veteran consistently reported on his own that his right eye vision problems seemed to be attributable to a non-service-related stroke which he suffered sometime during 1998. Indeed, based upon the Veteran's own reported history and findings from repeated clinical examinations of the right eye, treating VA physicians consistently opined that the Veteran's right eye disorder was secondary to his 1998 stroke or cerebral vascular accident. These opinions are not contradicted by any other medical opinions in the record. To the extent that the Veteran may be construed as implicitly asserting that his right eye disorder is related in some way to his active duty service, the Board finds that such an implied assertion is not entitled to probative weight. In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As to competency, 38 C.F.R. § 3.159(a)(2) reflects that "competent lay evidence" means any evidence not requiring that the proponent have specialized education training or experience; lay evidence is competent if provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. In view of this regulation, the Veteran would certainly be competent to provide a probative statement as to the onset and duration of his right eye problems, including loss of visual acuity and visual field. Nonetheless, the Veteran does not appear to be making any assertion that his right eye problems began during service or within a short period from his separation from service. As noted previously, he does not direct the Board's attention to any evidence that supports such an assertion. The Board is cognizant that the Veteran did note in his formal application that his eye disability started in the 80's. However, even taking into account that his period of dishonorable service ended in July 1980, the Board cannot construe such a vague statement covering such a broad period of time as asserting an onset of symptoms during service. Further, in the absence of any medical training or experience, the Veteran is not competent to render an opinion as to the complex question of whether his right eye disorder is related to his active duty service. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In that regard, the Board points out that loss right eye vision is susceptible to a myriad of causes. This fact would appear to be complicated further by the fact that the Veteran has a medical history which includes the aforementioned stroke in 1998 and diabetes diagnosed in 2008. In view of these complicating factors, and as the Veteran is not competent to render an opinion as to the complex question of the cause of his low back disorder, the Board finds that the Veteran's assertions are entitled to far less probative weight than the VA examiners' negative opinions. See Woehlaert v. Nicholson, 21 Vet. App. at 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. Also, the Board points out that any implied assertion on the part of the Veteran that his right eye disorder is related in some way to his active duty service is contradicted squarely by other express assertions in the record in which the Veteran acknowledged during VA treatment that his right eye problems were related to his 1998 stroke. Given the Veteran's earlier statements in that regard, any assertion, whether express or implied, that his right eye disorder is related to his active duty service is untenable and is not entitled to little probative weight. Under the circumstances, the Board assigns far greater probative weight to the etiology opinions expressed over the course of the Veteran's VA treatment than it does to the Veteran's assertions. Overall, the preponderance of the evidence is against the Veteran's claim of service connection for right eye blindness. As such, this claim must be denied. In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is inapplicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for right eye blindness is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs