Citation Nr: 1320476 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 12-08 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a bilateral eye disability. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1950 to June 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This matter was previously before the Board in October 2012, when the Board remanded the case for additional development of the medical evidence of record. The Board finds that there has been effective compliance with its remand instructions. Dyment v. West, 13 Vet. App. 141 (1999). 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). FINDING OF FACT The competent evidence of record does not support a finding that a relationship exists between the Veteran's currently-diagnosed bilateral eye disability and his service. CONCLUSION OF LAW The Veteran's bilateral eye disability was not incurred or aggravated by the Veteran's active duty service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board 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 a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including Veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). A July 2011 letter notified the Veteran of all of the above elements. The Board finds that the notice requirements have been fulfilled, and that no further notice is necessary. With respect to the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that assistance would aid in substantiating the claim. VA must provide a medical examination or obtain a medical opinion when an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that reasonable efforts have been made to assist the Veteran to obtain evidence necessary to substantiate his claim. There is no reasonable possibility that further assistance would aid in substantiating the claim. The pertinent evidence of record includes VA treatment records and the Veteran's lay statements. While some of the Veteran's service medical records have been associated with the claims file, the Veteran's full service medical records are unavailable. Unfortunately, the Veteran's service medical records were presumably among those lost in a 1973 fire at the National Personnel Records Center in St. Louis, Missouri. The Board finds that additional efforts to obtain the Veteran's full service medical records would be futile, and the Board finds that VA has fulfilled its duty to assist in obtaining such records. The Board notes that when records in government custody are lost or destroyed, VA has a heightened duty to consider the benefit of doubt doctrine, to assist the claimant in developing the claim, and to explain its decision. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board has taken note throughout this decision that VA has a heightened duty to assist the Veteran in developing his claim and to explain the bases of its decision. Furthermore, the Board notes that the absence of service records does not prejudice the Veteran because the Board has conceded that the Veteran suffered an in-service injury. In its October 2012 Remand, the Board requested an attempt to obtain pertinent treatment records from private clinicians. In November 2012, VA requested that the Veteran provide an authorization to allow VA to obtain records from Dr. B.B. and any other private physician who had treated the Veteran's condition. In February 2013, the Veteran completed an authorization form for Dr. D.L., and VA requested treatment records from Dr. D.L. To date, no records have been received from Dr. D.L. When VA provides an examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has been provided an examination of his eyes in December 2012. With respect to the adequacy of that examination, the Board finds that the examiner reviewed the Veteran's claims file and past medical history, recorded his current complaints, conducted an appropriate evaluation, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board concludes that this examination report and opinion is adequate for the purpose of adjudicating this appeal. 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). In September 2012, the Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for a claimed disorder, there must be (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) evidence, generally medical, of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist 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." For certain chronic diseases set forth in 38 C.F.R. § 3.309, a continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology specified in 38 C.F.R. § 3.303(b) affords an alternative route to service connection only for specific chronic diseases). To the extent that the Veteran's claimed bilateral eye condition represents an organic disease of the nervous system, organic diseases of the nervous system are among the chronic diseases set forth in 38 C.F.R. § 3.309, and it therefore may be established based on a continuity of symptomatology. With regard to medical evidence of a current disability, the Veteran has been diagnosed with a variety of bilateral eye conditions, including macular degeneration, dematochalasis, and eyelid ptosis. Accordingly, the Board finds that there is a current disability. The Veteran alleges that a stove exploded in his face during service. While the Veteran's available service medical records do not substantiate the in-service incident, the Veteran's statements and testimony, along with those of people who served with him, credibly establish that there was an incident in service, as described by the Veteran. Therefore, the Board will proceed with adjudication with the assumption that a stove explosion incident occurred during the Veteran's service as he has credibly described. The Veteran received a VA examination of his bilateral eye condition in December 2012. After reviewing the Veteran's claims file and examining the Veteran, the examiner opined that the Veteran's bilateral eye condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As a rationale for that opinion, the examiner stated that the Veteran's bilateral decreased vision was due primarily to macular degeneration and to the Veteran's dermatochalasis (drooping eyelids). The examiner noted that macular degeneration was a condition found more commonly in Caucasians of advanced age with a history of smoking cigarettes. The examiner noted that the Veteran was a Caucasian of advanced age with a history of smoking. The examiner noted that the Veteran's dermatochalasis was a condition also associated with advanced age, and the Veteran's history of cigarette smoking likely contributed to the severity of his condition by causing changes in skin elasticity, which made the Veteran's eyelids droopier. To the extent that the Veteran himself believes that his bilateral eye condition is related to military service, the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge, such as experiencing physical symptoms such as decreased vision. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the specific issues in this case, namely, the etiology of a bilateral eye disability, the issue of causation of a eye disability ailment is a determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record from the Veteran and other lay persons suggesting that his disability is related to his military service, the Board ultimately affords the weight of the objective medical evidence of record, which fails to find a connection between the Veteran's condition and his military service, greater probative weight than the lay opinions of record. Moreover, the Board finds that continuity of symptomatology, in this instance, does establish a nexus or continuity of symptomatology. The earliest treatment record relating to the Veteran's bilateral eye condition is from March 2009, approximately 57 years following the Veteran's separation from active duty service. In the March 2009 treatment record, the Veteran stated that his vision had been poor since 1961, or nine years following separation from active service. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time during which the Veteran has not complained of the malady at issue. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Without evidence of continuing symptoms associated with an eye condition, service connection cannot be established based on a continuity of symptomatology. In light of the above, the Board finds that the preponderance of the probative evidence of record is against a finding of any nexus between the Veteran's claimed bilateral eye disability and active service The Board finds that the preponderance of the evidence is against the Veteran's claim, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a bilateral eye disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs