Citation Nr: 1319921 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 12-00 054A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUE Entitlement to service connection for a disorder of the eyes (claimed continuous irritation of the eyes). REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active service from June 1951 to May 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the RO. 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 issue 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). FINDINGS OF FACT 1. Any claimed in-service conjunctivitis resolved. 2. Post-service disorder of the eyes (claimed continuous irritation of the eyes) is unrelated to service. 3. The appellant has a refractive error of the eye. CONCLUSIONS OF LAW 1. A disorder of the eyes (claimed continuous irritation of the eyes) was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. A refractive error of the eye is not a disease or injury within the meaning of the law providing compensation benefits. 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a February 2010 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, private treatment records and VA treatment records and examination report. The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examination. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations 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. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) 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 also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. 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). 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay 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 professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009); Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir.2006). 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"). 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). Analysis The Veteran asserts that his current disorder of the eyes (claimed continuous irritation of the eyes) had an onset in service. An October 1953 service treatment record reflects the Veteran's complaint of soreness in the eyes. The diagnosis was acute conjunctivitis - dust irritation with secondary infection. The Veteran was restricted from driving until further notice. A subsequent October 1953 service treatment record reflects that the Veteran was much improved since the initial visit. The May 1954 separation examination reflects that clinical evaluation of the eyes was normal. July 2009 and February 2010 private treatment records document treatment the Veteran received for eye complaints. The July 2009 private treatment record reflects the Veteran's complaint of pain in his left eye while he slept. In the morning he noticed that his eyes were bloodshot. He never went to the doctor. The Veteran also complained that his right eye got irritated approximately 4 days ago. The eye was red and had discharge and crustiness. On examination, the diagnosis was conjunctivitis of the right eye. The Veteran was seen for a one week follow-up appointment and the examiner indicated that the right eye conjunctivitis had resolved. The February 2010 private treatment record reflects the Veteran's complaint of some irritation of both eyes, something he'd been having for years since he got out of the Army. On objective examination, the pertinent diagnosis was compound myopic astigmatism. The report of March 2012 VA examination reflects that the Veteran's diagnosed eye disorder is blepharitis both eyes. The Veteran reported that during the Korean War, he washed his eyes in a dirty stream and that ever since that time he's had irritated eyes. The Veteran did not have anatomical loss of either eye, astigmatism, diplopia or impairment of the visual field. Slit lamp and external eye examination and internal eye examination were normal, bilaterally. The Veteran did have lacrimal gland and lid disorders; however, they did not cause scarring or disfigurement. The optometrist concluded that the Veteran has meibomian gland blockage in both eyes which causes squamous blepharitis and eye irritation that was not related, in any way, to the incident in Korea. The optometrist opined that the claimed eye disorder was less likely than not (less than 50 percent probability) incurred in or caused by claimed in-service injury, event or illness. The optometrist explained that the Veteran was treated for conjunctivitis in service with complete resolution (noting that the separation examination showed no eye problems). The next bout of conjunctivitis was in 2009 and again in 2010. The optometrist explained that the current disorder of the eyes, squamous blepharitis with meibomian gland blockage, was not a form of conjunctivitis and was not, in any way, connected with the eye washing incident in Korea. In this case, the evidence does not link the onset of the current disorder of the eyes to the period of active service. The Board points out that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition, despite noted in-service diagnosis of conjunctivitis, the clinical evaluation at separation was normal. Here, we are not presented with silence alone. There is no credible evidence that suggests that there exists a medical relationship, or nexus, between the current disorder of the eyes and the Veteran's active service. In the March 2012 report of VA examination, the examiner explicitly opined that the Veteran's current disorder of the eyes, squamous blepharitis with meibomian gland blockage, was less likely than not (less than 50 percent probability) incurred in or caused by claimed in-service injury, event or illness, explaining that the Veteran had conjunctivitis in service that had resolved. The current disorder of the eyes, squamous blepharitis with meibomian gland blockage, was not a form of conjunctivitis and was not, in any way, connected with the eye washing incident in Korea. Neither the Veteran nor his representative has identified, presented, or alluded to the existence of any medical evidence or opinion to contradict that provided by the VA examiner (which was based on a review of the medical records, taking the Veteran's history and performing examination). The only evidence of record supporting the Veteran's claim is his various general lay assertions. The Veteran is competent to assert his current disorder of the eyes onset in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, the Board acknowledges that the Veteran engaged in combat with the enemy (he was awarded the combat infantry badge) thus the provision of 38 U.S.C.A. § 1154(b) are applicable. However, 38 U.S.C.A. § 1154(b) does not create a statutory presumption that a combat Veteran's alleged disease or injury is service connected; rather, it aids the combat Veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). The record confirms that the Veteran received treatment for conjunctivitis of the eyes during service. Thus, his report of in-service eye symptomatology is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994). However, in this case, the Board finds the opinion of the VA examiner in the March 2012 report of VA examination to be more probative. The VA optometrist is a medical professional who has reviewed the claims file, considered the reported history and performed physical examination. The optometrist used their expertise in reviewing the facts of this case and determined that the current disorder of the eyes, squamous blepharitis with meibomian gland blockage, was not a form of conjunctivitis (documented in service) and was not, in any way, related to the Veteran's service. It is clear that the optometrist fully understood the basis for the Veteran's claim yet still determined, after reviewing the facts of the case, that the current disorder of the eyes, squamous blepharitis with meibomian gland blockage, was related to causes other than the Veteran's service. The Veteran has not suggested that this examination was performed in an insufficient manner. Lastly, blepharitis is not an enumerated chronic disease within the meaning of 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309. Therefore, the provisions of 38 C.F.R. § 3.303(b) are not applicable. Regardless, the assertion of ongoing symptoms is inconsistent with the normal separation examination and the in-service report that the condition had resolved and is not credible. The record also establishes a post-service diagnosis of myopic astigmatism. Regulations establish that a refractive error of the eye is not a disease or injury for compensation purposes. 38 C.F.R. § 3.303 (2012). For the foregoing reasons, the Board finds that the claim of entitlement to service connection for a disorder of the eyes must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a disorder of the eyes (claimed continuous irritation of the eyes) is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs