Citation Nr: 1324851 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 09-00 275A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for a bilateral eye disability. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active service from July 1984 to September 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. Although the Veteran initially requested a Central Office Board hearing when he perfected a timely appeal in January 2009, he failed to report for this hearing in January 2011. Thus, his Board hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (2012). In 2011, the Board remanded this claim for additional development, specifically a VA examination with an opinion. In December 2012, the Board again remanded the Veteran's claim to obtain an addendum opinion to the VA examination. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has a bilateral eye disability related to military service. CONCLUSION OF LAW The criteria for service connection for a bilateral eye disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2012). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d 1372. 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. The Veteran's service treatment records show that, on outpatient treatment in December 1986, he complained that, while cleaning up a battery acid spill, some of the acid splashed in his face. Objective examination showed visual acuity was 20/20 in both eyes and small scratches on the sclera of the right eye. The assessment was burn to the right eye sclera. The Veteran's right eye was patched. In April 1987, the Veteran complained that he had gotten cleaning detergent in his right eye. Objective examination showed that his right eye was red and tearing and he was photophobic. The assessment was chemical irritation in the right eye. The Veteran's right eye was flushed with normal saline. Fluoroscopic stain revealed corneal irritation at 0300 and 1200. The Veteran was given a solution to place in his right eye every 2 hours until it improved. The Veteran denied any relevant in-service history of eye problems at his separation physical examination in August 1992 and clinical evaluation showed that his vision was 20/25 in the right eye and 20/20 in the left eye. The post-service medical evidence shows that the Veteran reported to a private hospital emergency room in February 1997 complaining of a foreign body in his left eye, decreased left eye vision, and left eye pain. Physical examination showed his pupils were equal, extraocular movements were intact, and a small, black foreign body was in the left eye in the mid-field. Two drops of an ophthetic was applied to the left eye and the foreign body was removed with minimal difficulty. The diagnosis was foreign body to the left eye which was removed. The Veteran reported to a private hospital emergency room again in October 1998 complaining that a piece of paint went into his left eye and caused left eye pain. He reported a piece of paint came off of a tool and fell in his left eye while he was at work. He tried to pick the paint out and got most of it out of his left eye. He did not have any blurred vision or difficulty seeing, although he thought that there still was a piece of paint in his left eye under the eyelid because he had continuous eye irritation. Physical examination showed an entirely normal right eye, both pupils equal, round, and reactive to light and accommodation, intact extraocular movements, somewhat injected conjunctivae on the left eye, and 20/20 vision bilaterally. Ophthaine was placed in the left eye and it was irrigated. No foreign body was noted. The lid was everted and no foreign body was noted. The fluorescent stain revealed a small corneal abrasion present just at the lower limbus of the inferior margin of the cornea in the left eye. The Veteran's vision was clear and there was no involvement of the central cornea. He was double-patched with tobramycin ointment and sent home. He was advised to keep the eye patches on until the next morning. The diagnosis was corneal abrasion secondary to corneal foreign body in the left eye. The Veteran reported to a private hospital emergency room again in September 2003 with complaints that included pink eye in both eyes. He had been using eye drops in his eyes without relief. Physical examination showed pupils equal, round, and reactive to light and accommodation, intact extraocular movements, intact lids and lashes bilaterally, diffusely pink conjunctiva, and minimally injected sclera bilaterally. He was diagnosed with bilateral conjunctivitis. On private outpatient treatment in April 2009, the Veteran's complaints included that he could not drive at night due to blurred vision. Physical examination showed his conjunctiva and lids were normal. The assessment included visual disturbances. In October 2010 a private outpatient treatment note with regard to treatment for a viral illness with flu-like symptoms reflects the Veteran's pupils were equal, round, and reactive to light; his extraocular muscles were intact; and he had red conjunctiva. In July 2012 the Veteran was afforded a VA examination. The examiner noted the Veteran's acid chemical burn to the cornea and conjunctival sac in December 1986 and gave a current diagnosis of superficial keratitis of the right cornea. The examiner noted the Veteran's report of being bothered by bright lights, headaches, and dizziness since getting battery acid in both eyes during service. The examiner found the Veteran's uncorrected distance and corrected vision to be 20/40 or better in each eye, but noted his right eye uncorrected near vision was 20/200 and his uncorrected left near vision was 20/100. The examiner found no other eye conditions or symptoms. In a February 2013 addendum opinion, the examiner stated that the Veteran had no bilateral eye disability during service, but did suffer a conjunctival abrasion in his right eye in April 1987 for which he was treated and fully recovered. The examiner opined that the Veteran's current claimed eye disability was less likely than not incurred in or caused by an in-service injury, event, or illness. The Veteran's only current eye disability diagnosis is superficial keratosis diagnosed by the VA examiner. To the extent that the Veteran may believe he has some other eye condition, the evidence does not support such a contention. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). Although the Veteran reported to the July 2012 examiner that he has had photophobia since service, treatment records since service do not show ongoing complaints of sensitivity to light. Records further show no treatment for any chronic eye condition since service, rather reflecting only two unrelated instances in which the Veteran got foreign bodies in his eyes and a single instance of conjunctivitis in 2003 that records indicate resolved. In addition, the Veteran denied a history of eye problems in August 1992 when he separated from service and no eye conditions were noted on physical examination at that time, further weighing against the Veteran's later contention of eye problems since service. The only competent medical opinion of evidence, that of the VA examiner, is that the Veteran does not have a current eye disability that is related to his service. To the extent that the Veteran has opined that he has a current bilateral eye disability related to service, the Board finds he is not competent to offer such an opinion. While the Veteran is competent to state what symptoms he feels, diagnosing and opining as to the etiology of an eye disability such as superficial keratosis is a complex medical question not capable of lay observation and not the type of medical issue for which a lay opinion may be accepted as evidence. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Jandreau, 492 F.3d at 1376-77. Overall, the preponderance of the evidence is against the Veteran's claim for service connection for a bilateral eye disability. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Duties to Notify and Assist 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, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in October 2006. In the letter, the RO informed the Veteran of what evidence was required to substantiate the claim for service connection for a bilateral eye disability and of the Veteran's and VA's respective duties for obtaining evidence. In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates in the event that service connection is established. Thus, the duty to notify has been satisfied. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records, VA treatment records, private treatment records, and records from the Social Security Administration. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded a VA medical examination in July 2012 and an addendum medical opinion was obtained in February 2013. The examiner, a medical professional, obtained an accurate history, reviewed the Veteran's claims file, listened to the Veteran's assertions, and performed an examination. The examiner provided the Board with sufficient information to decide the issue of service connection. Therefore, the Board finds that the examination is adequate and contains sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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, 16 Vet. App. 183. ORDER Service connection for a bilateral eye disability is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs