Citation Nr: 1321750 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 08-18 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for an eye disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from August 1965 to July 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied the benefits sought on appeal. The Board remanded this claim in June 2010 and April 2011 for additional development. The issue of service connection for headaches was also remanded in April 2011. A June 2012 rating decision granted service connection for headaches. As this represents a full grant of the benefits sought on appeal, the issue will not be considered herein. FINDING OF FACT An eye disability was not incurred during or as a result of active duty service. CONCLUSION OF LAW The criteria for service connection for an eye disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a letter issued in January 2007, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provided ratings based on the rating schedule and was given examples of the evidence he could submit. The Veteran has substantiated his status as a veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims, by the January 2007 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records from various federal agencies, and private medical records. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with this claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file, are irrelevant to the issue on appeal, or have been incorporated herein. Additionally, the Veteran was provided a VA examination in May 2011, a VA opinion was provided in a September 2012 addendum by a new examiner, and a Veterans Health Administration (VHA) opinion was obtained in March 2013. The Board finds that the March 2013 VHA opinion obtained in this case is more than adequate, as it is predicated on a full reading of the service treatment records as well as the private and VA medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, to include the statements of the appellant, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. In fact, the VHA examiner specifically discussed other possible factors to which the Veteran's current eye disorders are attributable. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion regarding the eye disability issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The issue on appeal was previously before the Board in June 2010 and April 2011 when it was remanded for additional development. In accordance with the remand instructions, VA treatment records beginning in December 2007 and Social Security Administration (SSA) records were obtained and associated with the claims file, the September 2012 and March 2013 VA opinions were obtained, the Veteran was asked to submit information or evidence of private eye treatment, and a supplemental statement of the case was issued in May 2013. Since the record reflects compliance with the June 2010 and April 2011 remand instructions, the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria-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, 1131 (West 2002); 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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) medical 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 Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). 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, 469 (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"). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran contends that he incurred a bilateral eye disability in service or as a result of a concussion sustained during service. The claims file demonstrates multiple currently diagnosed eye disabilities including hyperopia/presbyopia, traumatic iritis, subconjunctival hemorrhage, cataracts, dry eye syndrome/blepharitis, iridocyclitis, scleral abrasion, and lid and brow scars. In addition, the Veteran has reported subjective, intermittent diplopia. Therefore, the first criteria of service connection-a current disability-has been demonstrated. The evidence, however, does not that his current disabilities are etiologically related to service. On the Veteran's enlistment examination in August 1965, his eyes were normal. His vision was bilaterally 20/20 at that time. During service, the Veteran was injured in June 1966 when he was beaten by an unknown person or persons, during which he suffered abrasions to his face, head, and back. On a June 6, 1966, evaluation, the Veteran's eyes were "ok" or normal. On his separation examination in July 1966, the his eyes were normal though a scar was shown on his left forehead. He was discharged in July 1966. On appeal, the Veteran has asserted that he suffered a concussion as a result of his June 1966 beating. The Board notes that there is no evidence or diagnosis of a concussion in the service treatment records of the years following discharge. During an August 1994 general medical VA examination, the Veteran's eyes were normal. During an October 1994 VA brain examination for residuals of a concussion, he reported having been stabbed in the left eye in 1992. The claims file demonstrates multiple post-service traumatic injuries to the Veteran's head or face. He was hit in the eye while stopping a fight in August 1997. He suffered an eye abrasion in 1998 when he was hit in the eye by a bungee cord and was diagnosed with traumatic iritis in September of that year. In March 2003, he was seen for bilateral blepharitis, at which time he denied any trauma to his eyes. During a December 2007 VA examination, the Veteran was diagnosed with hyperopia/presbyopia and with subjective binocular diplopia, although there was no actual diplopia shown on objective testing. The Veteran indicated that he sustained an injury to his left eye from a screw driver in the 1990s without any residual deficits. In May 2011, the Veteran was diagnosed with eyebrow and eyelid scars, cataracts, dry eye syndrome/blepharitis, and a history of left eye iridocyclitis. The examiner did not give any opinion regarding the Veteran's blepharitis/dry eye syndrome or cataracts with regards to whether such disabilities were related to service. The examiner generally stated without giving a rationale that the Veteran did not have any evidence of left eye iridocyclitis and that such was less likely than not related to the June 1966 in-service injury. In the September 2012 addendum, a different examiner stated that the noted eye conditions were not related to military service, specifically the June 1966 events. He noted that there was a long history of "alleged traumatic events, addictions, long periods of incarceration, and hepatitis C." He noted that traumatic iritis was diagnosed since 2004 and that such would not be a residual of the 1966 injury. The examiner further stated that the last examination did not demonstrate any evidence of iritis and diagnosed only mild dry eye injuries. The examiner stated that "even after all that he has recent detailed full eye exams that are within normal limits for his age." Upon review of the September 2012 VA opinion, the Board concluded that the opinion did not address the questions raised in its examination request. In addition, while the Board noted that no concussion was specifically found in the service treatment records, it conceded the possibility that he suffered a concussion as a result of the 1966 injury for the purpose of obtaining an adequate VA etiology opinion. Therefore, a VHA opinion was obtained in March 2013. The VHA examiner diagnosed multiple disabilities and explained why none of them were related to the 1966 in-service injury, even if the Veteran had sustained a concussion at that time. Regarding traumatic iritis of the right eye sustained in a 1998 bungee cord accident, the Veteran was treated with drops and the iritis resolved. The examiner noted that traumatic iritis is an acute and brief condition. As expected, subsequent examinations did not show evidence of cells or flair in the anterior chamber confirming that the iritis was acute and not chronic. Iridocyclitis, also documented in 1998, was another term to describe traumatic iritis. The scleral abrasion documented in 1998, which the examiner stated likely was meant to have been a conjunctival abrasion, was also an acute condition which was self-limited. Similarly, the examiner noted that subconjunctival hemorrhage, left eye, which was noted in 1997 due to an acute injury, was treated with ice and resolved, as expected. The examiner noted that the Veteran's cataracts were mild and symmetric on multiple examinations since 2000. In May 2011, vision was 20/20 in each eye with correction at distance and 20/25 and 20/30 at near with correction. The examiner stated that given the long interval between 1966 and the first mentioning of cataracts, their symmetric and mild nature, and the preserved visual acuity, they were certainly not due to the beating injuries in 1966, even if a concussion was sustained. Regarding blepharitis or dry eye syndrome, which was shown beginning in 2003, the examiner stated that this was a condition related to aging, commonly seen in the general population, and was not traumatic in nature. The examiner noted that the lid and brow scars were found to not result in functional sequel. Given the fact that the Veteran had sustained multiple injuries to the face and eyes post-service, the examiner stated that it was not possible to state that these scars resulted from the in-service beating. The examiner further stated that the normal separation examination, which showed a scar only to the forehead, made it likely that the current scars might have been from one of the post-service traumatic incidents. Finally, regarding diplopia, the examiner stated that there was no objective evidence of the disability found in the evidence. While the Veteran complained of subjective symptoms, objective testing on multiple examinations revealed no tropia or phoria by related testing and the Goldman diplopia field testing was within normal limits. The examiner concluded that none of the disabilities listed above were related to the in-service beating injury, even if the Veteran suffered a concussion as a result in 1966. As a rationale, the examiner noted the fact that there wasn't any indication of the diagnosed disabilities upon separation examination, the long interval between service and the first mentioning of the currently diagnosed disabilities, the repetitive post-service injuries to the eyes and face, and the lack of any treatments for any eye condition since the military service until the post-service traumatic eye injuries in the 1990s. Therefore, the examiner stated, it was not plausible that any of the disabilities diagnosed since the institution of the appeal could have resulted from beating decades earlier. Moreover, the examiner stated that it was medically impossible that the diagnosed disabilities resulted from a concussion. The examiner found that the more recent eye injuries resulted in several acute and short-lived conditions (traumatic iritis, subconjunctival hemorrhage) and aging resulted in age-related chronic conditions (hyperopia, presbyopia, blepharitis, dry eye, and cataracts). The Board recognizes the Veteran's assertion that his current eye disabilities may be related to the 1966 in-service incident and injuries. He is competent to report such an in-service injury and symptoms related to his eyes. 38 U.S.C.A. § 1154(a); see Jandreau, 492 F.3d at 1377. However, he lacks the necessary medical expertise to say that his current eye disabilities identified more than 25 years after service are the result of in-service trauma as opposed to a post-service injuries or process. There is no competent and credible evidence in favor of finding a link between his current eye disabilities and service. The VHA opinion, which was offered by a Chief of Ophthalmology, is not only against a finding of a link between the current disabilities and service, but offered several other nonservice-related causes of the current disabilities. Given the lack of a diagnosis or symptoms during service, the long interval between the in-service injury and current diagnoses, the post-service, intervening injuries to the face and head, and the lack of medical evidence in support of the claim, the evidence is against a finding of a nexus between the Veteran's current eye disabilities and service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). As there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for an eye disability is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs