Citation Nr: 1321683 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-21 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for an eye disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from December 1983 to March 1984, and from May 1986 to May 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Following certification of the appeal to the Board in February 2010, the Veteran submitted additional VA and private treatment records and written lay statements. However, such documents do not relate to the issue on appeal, and are therefore not pertinent. The Board may therefore proceed with a decision without referring the additional records to the RO for initial review. See 38 C.F.R. § 20.1304(c) (2012). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. In statements received by VA in October 2012 and March 2013, the Veteran raised the issues of entitlement to service connection for posttraumatic stress disorder, left finger disability, and left wrist disability, but the issues have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The only current eye disability related to the Veteran's service is a right cornea Descemet membrane fold. CONCLUSIONS OF LAW 1. The criteria for service connection for a right cornea Descemet membrane fold have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection for an eye disability other than a right cornea Descemet membrane fold have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 4.9 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in this case with respect to the issue on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The information contained in a September 2008 letter satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Moreover, the Veteran was notified of regulations pertinent to the establishment of an effective date and disability rating in the September 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, identified private medical records, and Social Security Administration records have been obtained. Also, the Veteran was provided a VA examination in February 2009. This examination and its associated report were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim. The report was based on examination of the Veteran by a physician with appropriate expertise who reviewed claims file. 38 C.F.R. § 3.159(c)(4) (2012); Barr v Nicholson, 21 Vet. App. 303 (2007). There is no indication in the record that any additional evidence relevant to the issue on appeal is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Congenital or developmental defects, refractive error of the eye, personality disorders, and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. In addition, for certain chronic diseases, such as organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a prescribed period following discharge from service; the presumptive period for organic diseases of the nervous system is one year. 38 C.F.R. §§ 3.307, 3.309(a). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. §§ 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service treatment records reflect treatment for several eye problems between June 1987 and April 1988. In June 1987, the Veteran was treated for itching and pain of the eyes, and the assessment was resolving corneal abrasion of the right eye and viral conjunctivitis. Again in June 1987, the Veteran was treated for keratitis, and diagnoses included history and physician examination compatible with epidemic keratoconjunctivitis, resolving; at the time, it was noted that opacities may remain for years with some corneal discomfort. In July 1987, the Veteran was treated for complaints of increased burry vision, it was noted that he had documented bilateral corneal opacities and stigmatic myopia of the right eye, and the assessment was bilateral corneal opacities. In August 1987, the Veteran was treated for status post epidemic keratoconjunctivitis with residual corneal opacities, stable. In September 1987, the Veteran complained of still having blurry vision of the right eye, and reported a history of metal in his right eye in 1987; the Veteran was found to have no acute pathology, but residual kerato pathology. He complained of itchy, dry eyes again in November 1987. In February 1988, the Veteran complained of discharge from the eyes and was assessed with mild conjunctivitis. In April 1988, he complained of red, irritated eyes with clear drainage, sensitivity to light, and blurred vision, and the assessment was flash burns of both eyes, which was noted to have resolved on April 27. In July 1988, and again in July 1989, the Veteran was noted to have passed his visual acuity test for flight deck screening, with 20/20 distant and near vision in both eyes. The report of the Veteran's April 1990 separation from service reflects a normal evaluation of the eyes, and the Veteran reported the past medical eye trouble history of "particles in eyes" in 1986. The report of a March 2001 service examination reflects that the Veteran had a normal clinical examination the eyes, with corrected vision of 20/20. The Veteran reported having no past or current medical history of wearing corrective lenses, eye surgery to correct vision, or lack of vision in either eye, and he reported no other eye problems. The report of an October 2002 eye examination reflects that the Veteran had no complaints. Visual acuity, gross visual field test, ocular mobility, bulbar and palpebral conjunctiva, lids, lacrimal drainage, pupils, irises, corneas, anterior chambers, lenses, pressure, ophthalmoscopic examination, and optic discs were all within normal limits. The assessments were astigmatism and hyperopia. Private treatment records reflect that in July 2007 the Veteran complained of decreased visual acuity of both eyes, strained eyes, and being bothered by glare. The severity of the problem was noted to be mild, and it was noted to have had a duration of one year. At that time, the Veteran reported metal particles to his eyes in the past working on a ship. In November 2008, the Veteran reported severe problems with bright lights in both eyes of a one year duration. In November 2009, the Veteran complained of decreased visual acuity, and he was noted have had metal in his eyes in 1988; he complained of close-up sensitivity to light of moderate severity of a one year duration. On each of these three examinations, conjunctiva, adnexa, pupils, iris, cornea, anterior chamber, lens, optic discs, and posterior segments were noted to be normal on examination, and corrected visual acuity was to 20/20 or 20/25 in both eyes. In November 2009, a faint corneal scar of the right eye was noted. The report of a February 2009 VA examination reflects that the examining physician reviewed the claims file and noted the Veteran's numerous instances of in-service eye treatment. Such treatment included that for decreased right eye vision and sensitivity to light, multiple corneal opacities and diffuse subepithelial infiltrates, viral conjunctivitis, epidemic keratoconjunctivitis, history of metallic foreign body in the eye, keratitis, and flash burn. The VA physician further discussed the Veteran's separation examination and post-service treatment records. The Veteran reported that, while working on the flight deck of a ship in 1987, steel particles were blown into both of his eyes, at which time he experienced redness, sensitivity to light, and decreased vision to both eyes. He stated that he felt that his decrease in vision and sensitivity to light had persisted from that point until the present. He further reported that he sought treatment in service and had flash burn to both eyes in 1988, and was now complaining of decreased, blurred vision of both eyes. He denied double vision and visual field defects, watery eyes or eye swelling, or history of surgery or laser treatments. It was noted that he did not use eye drops or other prescription eye medications. On examination, best corrected distance acuity was 20/25+1 for the right eye and 20/20-2 for the left eye, and uncorrected near acuity of each eye was 20/25. External examination showed no ptosis or proptosis, extraocular motility was full in both eyes, and visual fields were full and intact to confrontation in each eye. Pupils were round with no anisocoria or relative afferent pupillary defect, intraocular pressure was 18 in each eye, and anterior segment slit-lamp examination showed a normal conjuntivea, iris, and anterior chamber in both eyes. The cornea of the left eye was normal, but the cornea of the right eye showed faint superior folds of the Descemet membrane, which were out of the visual axis. There were no stromal anterior opacities in either eye, no subepithelial deposits present in either eye, and normal lens in both eyes. Dilated funduscopic examination showed and optic nerve with a cup to disk ratio of 0.3 in each eye, there was normal macula in both eyes with intact foveal light reflex, and normal-appearing vitreous, vasculature, and periphery in both eyes. The diagnoses were mild fold of Descemet membrane in the right cornea with no overlying stromal scar associated, which was out of the visual axis, and bilateral myopia with astigmatism. The VA examining physician stated that the conditions for which the Veteran sought treatment in service were not present on physical examination at that time or in the two most recent post-service treatment records in the claim file, and that the only abnormality to the cornea of either eye was a small fold in the Descemet membrane of the right cornea. The examiner explained that this finding could be caused by prior episodes of inflammation in the cornea, which were described on numerous occasions in the Veteran's treatment records and that, therefore, it was at least as likely as not that his change in the appearance of the Descemet membrane in the right cornea was related to the conditions the Veteran experienced during his service that were described in his medical records. The examiner explained that this noted change in the appearance of the cornea, however, was not responsible for any decrease in the Veteran's visual acuity and was not a change that would cause the Veteran's symptoms. An October 2009 VA treatment record reflects that the Veteran complained of blurry vision. Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for a right cornea Descemet membrane fold must be granted, but that service connection for any other eye disability must be denied. While the record reflects treatment for multiple eye problems in service, the weight of the evidence reflects that the Veteran's right cornea Descemet membrane fold is the only current eye disability related to such service. Initially, no organic disease of the eye or other eye disability was shown to have manifested within one year of the Veteran's separation from service. Thus, the presumptive service connection provisions of C.F.R. §§ 3.307 and 3.309(a) are not applicable. The only competent and probative medical opinion regarding whether any eye disability might be related to service is that of the February 2009 VA physician, which was that the only eye disability at least as likely as not related to service was a small fold in the Descemet membrane of the right cornea, but that such abnormality was not responsible for any decrease in the Veteran's visual acuity and was not a change that would cause the Veteran's symptoms. The VA physician furthermore stated that the conditions for which the Veteran sought treatment in service were not present on physical examination at that time or in the two most recent post-service treatment records in the claim file. Indeed, aside from the right cornea Descemet membrane fold and bilateral myopia with astigmatism, no other bilateral disability of the eyes has been identified/diagnosed during the pendency of the appeal period or proximate thereto. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (which stipulates that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved); Romanowsky v. Shinseki, No. 11-3272 (Vet. App. May 9, 2013) (held that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Board finds the VA physician's examination report and opinions to be persuasive. The physician thoroughly reviewed the entire claims file, extensively cited and discussed the pertinent medical records including the Veteran's numerous instances of in-service eye treatment, examined the Veteran, and considered the Veteran's entire reported history. Also, the physician's opinions are clear, well-reasoned, based on objective medical findings, thorough, and consistent with the record as a whole; despite the Veteran's in-service eye problems, the only eye abnormality noted in post-service treatment records, besides refractive errors, is a faint corneal scar of the right eye noted in November 2009. There is no medical opinion contradicting the VA physician's opinion or otherwise supporting the Veteran's claim, and neither the Veteran nor his representative has identified any such opinion. Also, while the February 2009 examiner additionally diagnosed bilateral myopia with astigmatism, and such conditions have been noted elsewhere in the medical evidence, such conditions are refractive errors of the eyes and congenital or developmental defects, and therefore are not disabilities within the meaning of applicable regulations providing for payment of VA disability compensation benefits. 38 C.F.R. §§ 3.303, 4.9. Moreover, while service connection can be warranted where such a defect is subject to a superimposed disease or injury during military service that results in increased disability, in this case, the evidence demonstrates that no such superimposed disease or injury during military service resulted in increased disability. See VAOPGCPREC 82- 90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985). The February 2009 VA physician specifically determined both that the only eye problem related to the Veteran's service was a small fold in the Descemet membrane of the right cornea, and that such abnormality was not responsible for any decrease in the Veteran's visual acuity and was not a change that would cause the Veteran's reported symptoms. Therefore, the competent and probative medical evidence of record suggests that the Veteran's myopia and astigmatism, as well as his complaints of decreased visual acuity, sensitivity to light, and blurry vision, are not related to his service in any way. During the February 2009 VA examination, the Veteran stated that he felt that decrease in vision and sensitivity to light had persisted from the time that steel particles were blown into both of his eyes during service in 1987 until the present. The Veteran is competent to report matters within his own personal knowledge. See Layno, 6 Vet. App. at 469. However, the Veteran's assertions are contradicted by the service and post-service medical documentation, and by the Veteran's own statements during treatment after service. On April 1990 separation examination, while the Veteran reported the past medical eye trouble history of "particles in eyes" in 1986, there were no visual problems or light sensitivity reported, and he had a normal evaluation of the eyes. In March 2001, the Veteran reported no eye problems and had a normal examination of the eyes, and on October 2002 eye examination the Veteran was noted to have had no complaints. The earliest indication of any sensitivity to light or other such problems is the July 2007 private treatment record reflecting that in the Veteran complained of decreased visual acuity of both eyes, strained eyes, and being bothered by glare, but that, while the Veteran reported metal particles to his eyes in the past working on a ship, he reported that his eye problems had had a duration of only one year. Thus, the Board finds that the Veteran's reports of continuity of eye symptomatology from 1987 to the present are not credible. Moreover, despite the Veteran's reported symptomatology, the competent evidence of record suggests that the only current disability that can be service-connected is a right cornea Descemet membrane fold. In some cases, lay evidence may be competent to determine the existence of a medical disorder where such disorder has "unique and readily identifiable features" that are "capable of lay observation," and a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. See Barr, 21 Vet. App. at 308-09; Jandreau, 492 F.3d 1372. However, in this case, the question of whether any eye disorder other than a right cornea Descemet membrane fold exists and might be related to the Veteran's service extends beyond features capable of lay observation or an immediately observable cause-and-effect relationship, and is one that requires medical expertise to answer. As such, the Veteran is not competent to address etiology in the present case. Furthermore, to any extent that the Veteran might be competent to address etiology, his opinion is outweighed by the competent and probative medical opinion of the February 2009 VA examining physician that the only eye disorder or problem that is related to service is a right cornea Descemet membrane fold. Therefore, the evidence as a whole weighs in favor of a finding of service connection for a right cornea Descemet membrane fold, but against a finding of service connection for any other eye disability. Accordingly, the Board finds that service connection for a right cornea Descemet membrane fold must be granted, but that service connection for eye disability other than a right cornea Descemet membrane fold must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, regarding the denied claim, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for a right cornea Descemet membrane fold is granted. Service connection for eye disability other than a right cornea Descemet membrane fold is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs