Citation Nr: 1322862 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 08-29 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a bilateral eye disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION 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). The Veteran served on active duty from October 1952 to August 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which declined to reopen the Veteran's previously denied claim for service connection for bilateral defective vision. In August 2012, the Board reopened and remanded the Veteran's claim of entitlement to a bilateral eye disability to the Appeals Management Center (AMC) for further evidentiary development. While the Veteran did request a Travel Board hearing on his September 2008 VA Form 9, in a subsequent communication received in March 2012, he withdrew his request for a Board hearing. Accordingly, the Veteran's hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2012). FINDING OF FACT The preponderance of the evidence is against a finding that a bilateral eye disability is the result of a disease or injury in active duty service or a service-connected disability; any refractive error is not a disease for VA purposes. CONCLUSION OF LAW A bilateral eye disability was not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 4.9 (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. See Gonzales v. West, 218 F.3d 1378, 1380-81 (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. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (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). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. An August 2006 letter provided all required notice elements, including information regarding disability ratings and effective dates. Thus, the Board finds that VA has fulfilled its duty to notify. The Board also concludes VA's duty to assist has been satisfied. The Veteran's VA examination reports, VA treatment records, and all obtainable private treatment records are in the file. As discussed below, the AMC made all appropriate efforts to obtain additional SSA records, unit information, and pre-1973 VA treatment records and informed the Veteran of those records that could not be obtained in a May 2013 letter. In September 2011, the RO informed the Veteran that his service treatment records had been destroyed in a 1973 fire at the National Personnel Records Center. In a case such as this where a veteran's service records are incomplete, the Board's obligation to explain its findings and conclusions, and to carefully consider the benefit-of- the-doubt doctrine, is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board notes, however, that O'Hare does not create a presumption that the missing treatment records would, if they still existed, necessarily support the Veteran's claim. Case law does not establish a heightened "benefit of the doubt" when the Veteran's service treatment records have been destroyed, only heightened duties of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the Veteran in developing the claim, and to explain its decision. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, the case law does not lower the legal standard for proving a claim for service connection. Rather, it increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). In fulfilling its heightened obligation, VA requested that the Veteran submit any service records or other relevant documents that he possessed. See RO letter, September 2011. The RO and AMC also attempted to obtain alternative records and afforded the Veteran a VA eye examination to evaluate whether his current complaints could have resulted from the alleged in-service eye injury. VA has fulfilled its heightened duty. Moreover, the Board notes that the Veteran's claim is ultimately being denied based on the lack of a medical nexus between his service and his current disability, not solely on a lack of in-service injury. As such, service treatment records would not help to substantiate his claim. The record indicates that the Veteran underwent a VA eye examination in conjunction with his instant claim in April 2013, as noted above. A second medical opinion was procured by the AMC in May 2013. The report from that examination and a copy of the medical opinion have been included in the claims file for review. The examination and opinion each involved a review of the claims file, a thorough examination of the Veteran (examination only), and a conclusion that were supported by sufficient rationale. Therefore, the Board finds that the examination and opinion, taken together, are adequate for to decide the bilateral eye claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Finally, as noted, the matter was Remanded for additional evidentiary development including attempting to obtain any outstanding VA or private treatment records, in-service treatment records from the Fort Knox Army Hospital, Social Security Administration (SSA) records, and any relevant unit records, and providing the Veteran with a VA eye examination. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC attempted to obtain the above-referenced records. An October 2012 letter from the AMC asked the Veteran to identify and provide a release of information for any outstanding private treatment records. The Veteran did not respond to this letter or provide any such release. The AMC obtained treatment records from the Salem and Richmond VA Medical Centers (VAMCs) dated from 1975 to the present and received an October 2012 response from the Salem VAMC that records dated prior to 1973 were not available. An October 2012 PIES response indicated that there were no available clinical records from the Fort Knox Army Hospital and that most clinical records prior to 1960 would have been stored with the Veteran's service treatment records which were destroyed in a fire. An October 2012 response from SSA also reflected that there were no available treatment records. The Veteran was then afforded a VA examination in April 2013 with an additional May 2013 independent medical opinion. The AMC informed the Veteran of the unavailable records in a May 2013 letter and again asked him to submit any records in his possession. The Board notes that an October 2012 response to a PIES request for unit information requested full organizational information in order to complete the search. There is no indication whether this additional organizational information was provided. However, as the Veteran was afforded a VA examination and opinion on the assumption that he suffered the reported in-service eye injury and his claim is being denied on the basis of no medical nexus, not no in-service injury, the Board finds that there has been substantial compliance with its remand and that another remand to attempt to submit another request for unit information would not benefit the Veteran. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Accordingly, all remand instructions issued by the Board have been substantially complied with and this matter is once again before the Board. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of these claims, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Veteran claims that he currently has poor eyesight that began in and is the result of his active duty service. Specifically, he claims that he first began to lose vision in service, either spontaneously or as a result of an incident with a rifle. Therefore, he believes service connection is warranted. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for a disability, 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Mere congenital or developmental defects, absent or supernumerary parts, refractive error of the eye, personality disorder and mental deficiency are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. § 4.9 (2012). The validity of this exclusion in 38 C.F.R. § 3.303(c) of congenital and development defects such as refractive error from the definition of disease or injury, has been upheld by the United States Court of Appeals for Veterans Claims (Court). See Winn v. Brown, 8 Vet. App. 510 (1996). To the extent that the Veteran is claiming any decrease in vision due to refractive error, this cannot be service connected and such a claim must be denied as a matter of law. See Sabonis, supra; see also Winn, supra; Beno v. Principi, 3 Vet. App. 439 (1992). Accordingly, the Board will only discuss whether service connection is warranted for bilateral eye diagnoses other than a refractive error. Post-service VA and private treatment records show that the Veteran has been seen many times for complaints of decreased vision and blindness. During the appeals period, he has been diagnosed with diabetic retinopathy, epiretinal membrane, cataracts, pseudophakia following cataract surgery, and optic atrophy bilaterally. As such, the first element of Hickson is met. As noted above, the Veteran's service treatment records have been destroyed and are not available for review. The only record from the Veteran's period of service indicating eye problems is a March 1955 physical profile indicating that the Veteran had poor vision in his left eye. The profile does not indicate any cause, onset, or diagnosis. In addition to the physical profile, the Veteran now claims that his decreased vision began after a "blowback" incident with a rifle after which he claims to have experienced blurred vision and/or blindness. The Board has significant concerns about the credibility of this recent allegation. Notably, the Veteran did not mention this alleged incident to any healthcare professional when seeking treatment for his decreased vision until a January 2006 VA examination in conjunction with his claim for monetary benefits. Although the claims file includes treatment records dating back to 1973 reflecting complaints of decreased vision, there is no mention of the alleged rifle incident until the January 2006 VA examination. In this case, the Board places greater weight of probative value on the history the Veteran presented to medical professionals for treatment purposes years ago and to VA in conjunction with his original claim for benefits than it does on his recent statements to VA in connection with his current claim for monetary benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). Even more significant is the Veteran's failure to mention the alleged rifle incident when initially filing for service connection for his eyes in 1974. Surely if the Veteran had suffered an in-service traumatic eye injury resulting in blindness, he would have mentioned this at his April or November 1975 VA examinations, in his claim for benefits, or at his March 1976 Board hearing. Rather, at the March 1976 Board hearing, he denied any injuries to his eyes in service and claimed that his blurry vision began spontaneously in 1953 or 1954. Further, the Board notes multiple inconsistencies in the Veteran's story of an in-service rifle incident. At times, he reports that the incident resulted in permanent blindness; other times, he reports it resulted in temporary blindness followed by progressively decreasing vision. He is also inconsistent in how long he reports being hospitalized-anywhere from 72 hours to months-and when the alleged incident occurred-either 1952, 1953, 1954, or 1956. See VA examination report, November 1975; Board hearing transcript, March 1976; VA examination report, January 2006; VA Form 9, September 2008; VA treatment record, October 2009; DRO hearing transcript, May 2010. Interestingly, the allegation that the incident and hospitalization occurred in 1956 contradicts the Veteran's contention that the March 1955 physical profile was in response to the in-service eye injury. In light of the numerous inconsistencies, the Board finds the Veteran's report of an in-service traumatic eye injury is not credible. However, as the March 1955 physical profile does show in-service complaints of decreased vision, the second element of Hickson is met with respect to the in-service complaints. Although an in-service disease or injury and current disability have been established, as noted above, this is not sufficient to warrant service connection. There still must be competent medical evidence of a nexus between the Veteran's reported in-service visual complaints and his current bilateral eye disability. See Hickson, supra. The Veteran first underwent a VA examination to evaluate his visual complaints in April 1975. At that time, he reported that his visual difficulties began in service, but did not mention any trauma or precipitating event. The examiner determined that the Veteran did not have any optic atrophy or macular disease and concluded that his bilateral defective vision was due to either cerebral disease or hysteria. The Veteran was next provided a VA eye examination in January 2006. At that examination, he mentioned for the first time that he suffered "back blow from a rifle blast," resulting in a concussion in about 1952 or 1953. He reported experiencing blurred and double vision at that time with gradual worsening over time. The examiner diagnosed him with proliferative diabetic retinopathy, status post panretinal photocoagulation of the right eye and with retinal atrophy of the left eye, mild macular epiretinal membrane and mild cataract of the right eye, and pseudophakia of the left eye. He noted that a 1973 CT of the head and neuro-ophthalmologist report showed that there were no intracranial abnormalities or other eye pathology to explain the Veteran's vision loss. He then concluded that the Veteran's severe and apparently neglected diabetic retinopathy explained his progressive worsening of vision. Most recently, the Veteran was examined in April 2013. At that time, he reported having injured his left eye from a "back blow of rifle blast" in 1952 that resulted in blurry vision and gradually decreasing visual acuity. He also reported that an unidentified doctor told him that he had nerve damage and that he would be blind by age 50. The examiner noted that his subjective complaints of vision loss were worse than what was observed on objective testing. He diagnosed the Veteran with diabetic retinopathy, epiretinal membrane, and pseudophakia. He noted that the Veteran did have some optic nerve damage that could result from a blunt force trauma to the eye, but determined that was not the case. Specifically, he noted that the Veteran's alleged in-service eye trauma only affected his left eye, so it could not explain the vision loss in his right eye. He further explained that a blunt force trauma would not result in progressive deterioration of vision over many years as has been the nature of the Veteran's vision loss. As such, he concluded that the Veteran's bilateral eye disability was not related to his military service, including any in-service traumatic injury. Following the April 2013 VA examination, the AMC obtained a medical opinion in May 2013. The examiner reviewed the Veteran's claims file and CAPRI records. She noted his diagnoses of epiretinal membrane of the right eye, pseudophakia of the left eye, and diabetic retinopathy and concluded that these were related to the normal aging process and the Veteran's diabetes mellitus, not his military service. She rationalized that the Veteran's treatment records showed he was diagnosed with chemical diabetes sometime prior to April 1973 and that his visual complaints around that time were likely early signs of his uncontrolled diabetes. She further explained that his uncontrolled diabetes put him at greater risk for rapidly-progressing cataracts. She also reinforced the April 2013 VA examiner's opinion that the Veteran's reported progressive loss of vision in the left eye was not consistent with nerve damage from a single incident in service. The May 2013 examiner was, therefore, also unable to link the Veteran's bilateral eye disability to his military service. The medical evidence also includes VA and private treatment records dated as far back as 1973. These records show the Veteran's complaints of decreasing vision in the left eye, followed by the right eye. However, none of these treatment records link the Veteran's visual difficulties to his military service. The treatment records that provide opinions on etiology suggest that his vision problems may have been due to temporal arteritis, a hysterical/functional cause, a possible cerebrovascular accident or tumor, or proliferative diabetic retinopathy, not his military service or an in-service eye injury. See VA treatment records August 1973, October 1973, October 2009, February 2012. An undated VA treatment record from the Richmond VAMC also provides another negative nexus opinion, stating that the Veteran reported being told that his vision problems were due to diabetes, not trauma. Further, none of the treatment records prior to 2006 note the Veteran's reported in-service eye injury. Rather, a November 1975 VA hospitalization summary noted that the Veteran reported that his left eye blurred vision occurred without warning and resolved spontaneously, in contradiction to his later report of a specific in-service traumatic eye injury. The Board notes that a single October 2009 VA treatment record lists that the Veteran had a prior history of left eye blindness due to trauma from a rifle back blast in 1952. To the extent that this is intended to be a positive nexus opinion for the Veteran's service connection claim, the Board notes that it is free to favor one medical opinion over another as long as it provides an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Here, the Board finds the VA optometrist's "opinion" to be less probative than the VA examiners' and independent medical examiner's opinions. The notation simply recites the Veteran's reported history. The optometrist did not provide an actual opinion, but simply transcribed the Veteran's reported medical history. The mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional. See Grover v. West, 12 Vet. App. 109, 112 (1999); LeShore v. Brown, 8 Vet. App. 406, 409 (1995). To the extent that this notation could be interpreted as a medical opinion as opposed to a transcription of the medical history, the Board emphasizes that the Veteran's assertion of an in-service eye injury has been found incredible. Thus, any opinion based on this history lacks probative value. See Coburn v. Nicholson, 19 Vet. App. 427 (2006). Further, to the extent that such a statement could be liberally read as a positive nexus opinion, the notation fails to provide a sufficient rationale or any supporting research citations to link the Veteran's bilateral eye disability to his military service. The VA/independent medical opinions, by contrast, provide a much more detailed negative opinion. As such, this treatment record notation is less probative as a nexus opinion than the VA/independent medical negative opinions and is insufficient to grant service connection for the Veteran's bilateral eye disability. The only other evidence which purports to link the Veteran's current bilateral eye disability to his military service consists of the statements of the Veteran and his representative. Although laypersons, such as the Veteran and his representative, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of ophthalmology. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). While the Veteran can describe what he experiences (in this case, vision problems), he is not able to provide competent evidence as to the etiology of his bilateral eye disability. Providing such an opinion requires medical expertise in the causes of loss of vision, particularly in the context of diabetes mellitus and the normal aging process. The Veteran and his representative have no such expertise. See Jandreau, supra; see also 38 C.F.R. § 3.159 (a)(1) (2012). The Board is also aware of the provisions of 38 C.F.R. § 3.303(b), referenced above, relating to chronicity and continuity of symptomatology. The Veteran complains of blurred and decreased vision since service. The VA examiners and independent medical examiner considered these complaints in forming their opinions. However, while they acknowledged his complaints of vision problems since service, they still found that his current diagnoses were not related to his active service. Further, the Board notes that the provisions of 38 C.F.R. § 3.303(b) only apply to chronic diseases as listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). None of the Veteran's eye diagnoses are on the list of chronic diseases. As such, the Board finds that the medical nexus element of Hickson cannot be met via continuity of symptomatology. As explained above, the competent medical evidence of record does not demonstrate that there is a relationship between the Veteran's active duty service and his current bilateral eye disability. Although the Board notes the Veteran's current disability and in-service complaints, without sufficiently probative evidence of a medical nexus, service connection cannot be granted. Accordingly, the Board finds that the claim of entitlement to service connection for a bilateral eye disability 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 Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for a bilateral eye disability is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs