Citation Nr: 1321479 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 02-08 711A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for residuals of a left eye injury. 2. Entitlement to service connection for residuals of a right eye injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty and in the Tennessee Air National Guard, the Air Force Reserve and the California National Guard. Periods of active duty service included October 1979 to July 1985, January 1989 to March 1989, and January 1991 to April 1991. He had other service, including active duty for training (ACDUTRA) and inactive duty training (IDT) as part of his National Guard and Reserve assignments. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2001 of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. This case was previously before the Board in May 2004, October 2008, and January 2012 when it was remanded for further development. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. No current disability resulting from a left eye injury in service is shown. 2. No current disability resulting from a right eye injury in service is shown. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a left eye injury have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection for residuals of a right eye injury have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in a January 2012 communication, and the claim was thereafter readjudicated in November 2010 and November 2012. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's January 2012 remand, VA provided the Veteran with a medical examination in January 2012. This examination contained all information needed to rate the disability. Indeed, the examiner reviewed the objective evidence of record and documented the Veteran's current complaints. Moreover, the VA examiners performed a thorough clinical evaluation, then offered opinions as to the nature of the claimed disabilities, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. Thus VA has complied with the January 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The claimed eye disorder is not among the listed diseases. Service connection may also 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). In a service connection claim, the threshold question is whether or not the Veteran actually has the disability for which service connection is sought. In the absence of proof of present disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). 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. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts The Veteran seeks service connection for residuals of injuries to his left and right eyes that occurred in service. The claim of service connection was originally filed in 2000 and was denied in the July 2001 rating decision. The Veteran's service treatment records show that he sustained injuries to each eye on more than one occasion in service. In January 1977 he was treated for trauma to both eyes sustained while putting out a fire. The provider noted superficial abrasions with no damage to the eyes. In September 1978 the Veteran sustained trauma to the left eye during a fight which resulted in a laceration of the canthus and temporary blurred vision, but no damage to the cornea. In March 1984 the Veteran sustained an injury to his right eye from excessive soot in a blast. On examination, there was no apparent pathology, good eye health and no permanent ocular change from the injuries. He had 20/20 vision both near and distance in both eyes, although the provider did note some low simple hyperopia. In June 2000 the Veteran was seen for complaints of vision problems in his left eye over the previous six weeks, with the vision going in and out and double vision lasting up to 30 seconds at a time. The provider noted a head injury in 1984 which had caused optic nerve problems lasting for six months. Physical examination showed visual acuity of 20/50 in both eyes and full visual fields. The provider recommended a work-up for possible multiple sclerosis. In November 2000 the Veteran was treated for glass irritation in both eyes after a windshield shattered. Foreign bodies were removed from the eyes by the emergency room provider, who noted resulting inflammation and recommended monitoring for possible developing uveitis. In May 2001 the Veteran was seen for reports of occasional double vision in the left eye and continued ocular inflammation with possible retained glass fragments. He reported mild light sensitivity and use of artificial tears. An eye examination in January 2003 showed that after the November 2000 accident he had presbyopia and floaters in both eyes, but met the requirements for continued active duty. Uncorrected distance vision was 20/25 in the right eye and 20/20 in the left; uncorrected near vision of 20/24 in both eyes. His visual fields were normal except for slight upper quadrant floaters in the right eye. During an examination for Persian Gulf War residuals in November 2010, the Veteran reported a fluttering of the visual image. The examiner noted that a prior examination had diagnosed diabetes with mild nonproliferative retinopathy in the left eye. The Veteran had also reported a migraine with a visual aura in July 2010. The examiner diagnosed diabetes mellitus typed II or unspecified with ophthalmic manifestations beginning in 2007 and mild nonproliferative retinopathy of the left eye. On January 2012 VA examination, the diagnoses of presbyopia and myopia were noted, as well as the history of trauma to the eyes, specifically glass fragment removal in 2002, damage after explosion in 1977, trauma to the left eye in 1978 from a finger gouge, and hospitalization in the early 1980s after an explosion with debris in both eyes. He had not had surgery on either eye and was able to see fine with both eyes wearing his current eyeglass prescription. On physical examination, uncorrected distance vision was 20/40 or better in both eyes, uncorrected near vision was 20/100 in both eyes, with corrected vision of 20/40 or better in both eyes for near and distance vision. The Veteran did not have double vision or any visual field defect and his eyes were both normal on examination. The examiner noted that the Veteran had sustained many superficial injuries to both eyes over the course of many years, but that he did not have any residuals of those injuries at present in either eye. The examiner stated that the Veteran's eye function was within normal limits for his age in both eyes. Analysis In order to establish a claim for service connection, the Veteran must establish three basic components: an injury or incident in service; a current disability; and a causal relationship or nexus between the incident or injury in service and the current disability. 38 C.F.R. § 3.303. Here, the Veteran clearly suffered a series of different injuries to the left eye, the right eye, and both eyes together on several occasions. The occurrence of an incident or injury - in this case multiple incidents and injuries - in service is established. However, based on the evidence of record, these injuries were acute and transitory in nature, having resolved in service without chronic residuals. At present there is no evidence that the Veteran has a current disability which is the result of any of the incidents or injuries in service. Indeed, based on the results of the January 2012 VA examination, he does not have a current disability in either eye. He has uncorrected vision of 20/100 near and 20/40 distance in both eyes, with corrected vision of 20/40 or better, meaning there is no disability of visual acuity. He also has no deficits in the visual field of either eye and no other eye pathology at present. Without evidence of a current disability, the claim of service connection must fail. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges that the Veteran has been shown to have refractive error with presbyopia and myopia. At the outset, with respect to specific diagnoses of refractive error/presbyopia/myopia, under 38 C.F.R. § 3.303(c), congenital or developmental abnormalities, and refractive errors of the eye, are not considered diseases or injuries within the meaning of applicable legislation governing the awards of compensation benefits. The Board points out refractive error of the eyes due to such eye disorders as myopia, presbyopia and astigmatism is not a disability for VA purposes. See 38 C.F.R. §§ 3.303(c), 4.9; McNeely v. Principi, 3 Vet. App. 357, 364 (1992). While service connection may be granted, in limited circumstances, for superimposed disability on a constitutional or developmental abnormality (see VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); see also Carpenter v. Brown 8Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993)), there is no evidence that such occurred in this case. In short, the evidence does not reflect any aggravation. Because refractive error is excluded from the definition of a disease for which service connection may be granted, the statutory provision of 38 U.S.C.A. § 5107(b) regarding reasonable doubt is not applicable. As a matter of law, the claim for service connection for a left eye or right eye disability, to include refractive error, presbyopia, or myopia as residuals of injuries in service, must be denied. The Board has also considered the application of McClain v. Nicholson, 21 Vet. App. 319, 323 (2007), which held that the requirement of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim. In this instance, at the time of the filing of the claim the Veteran had no chronic residuals from any of his previous injuries to his eyes. During the appeals period, he sustained additional acute and transitory injuries while on active duty service. However, based on the medical findings made at the VA examination in January 2012, the Board concludes that those injuries resolved without residuals. Inasmuch as there is no current disability shown, the occurrence of additional injury during the appeals period which did not result in sequelae is not sufficient to trigger service connection under McClain. In short, the Veteran, despite his many injuries to his eyes, has sustained no lasting or residual damage or disability as a result. Therefore, there is no basis for service connection for disabilities of the left or the right eye. Also, the benefit-of-the-doubt standard of proof does not apply where no current disability is shown. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for residuals of a left eye injury is denied. Entitlement to service connection for residuals of a right eye injury is denied. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs