Citation Nr: 1324964 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 04-40 086 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an eye disability manifested by impaired vision. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from June 1959 to July 1961. This matter initially came before the Board of Veterans' Appeals (hereinafter Board) on appeal from an April 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the Veteran's claim of entitlement to service connection for disability manifested by impaired vision. He perfected a timely appeal to that decision. The claims folder was later transferred to the Montgomery, Alabama RO at the request of the Veteran. In October 2007, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional development. Following the requested development, a supplemental statement of the case (SSOC) was issued in May 2009. In August 2009, the Board denied the claim of entitlement to service connection for a disability manifested by impaired vision. The Veteran then appealed this decision to the United States Court of Appeals for Veterans Claims (Court). A Joint Motion for Remand was submitted in August 2010; and, later in August 2010, the Court issued an order granting the motion, vacating the August 2009 Board decision and the matter was remanded to the Board for readjudication consistent with the motion. In November 2010 and June 2012, the Board remanded the case to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional evidentiary development and consideration. The AMC completed the requested development and issued another SSOC in February 2013. Review of the record reflects substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed the Veteran's physical claims file, as well as the Veteran's electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. The Veteran's currently diagnosed eye disorders, open-angle glaucoma, nuclear cataract, and arcus senilis, are not etiologically related to his period of active service or any incident therein. 2. Currently diagnosed refractive error is a developmental disorder of the eye, and service connection is, by regulation, precluded for such disorders. CONCLUSION OF LAW The Veteran does not have an acquired eye disability that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 4.9 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of letters dated in August 2003 and November 2003 from the RO to the Veteran, which were issued prior to the RO decision in April 2004. Additional letters were issued in November 2007, November 2010, September 2011, October 2011, February 2012, and July 2012. Those letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. The Board finds that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. The Veteran has been afforded VA examinations on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations afforded the Veteran are adequate. Nieves- Rodriguez v. Peake, 22 Vet. App 295 (2008). They were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and examined the Veteran. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran. No useful purpose would be served in remanding the questions addressed herein for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. The Veteran entered active duty in June 1959; at his enlistment examination, in June 1959, the Veteran did not report any eye problems, and visual acuity was 20/20 in both eyes. The service treatment records (STRs) indicate that the Veteran was seen at Fort Myer in July 1959 with complaints that he was unable to read fine print; examination revealed that the Veteran's vision was 20/25 bilaterally. He was prescribed corrective lenses for general wear and reading. The eyes were reportedly normal on the separation examination in July 1961. Visual acuity was correctable to 20/20 and the Veteran denied that he had or had had eye problems on his Report of Medical History. The Veteran's claim of entitlement to service connection for a bilateral eye disorder (VA Form 21-526) was received in July 2003. At that time, the Veteran indicated that he had a chemical accidentally sprayed in his eyes while stationed at the Pentagon in 1959; he was treated for this problem at Walter Reed Army Hospital. The Veteran stated that he has had problems with his eyes ever since that incident. Post service treatment reports, including VA as well as private treatment reports, dated from July 1996 through January 2008 show that the Veteran has been diagnosed and treated for several disabilities of the eyes. In April 2001, the Veteran was diagnosed with refractive error in both eyes, dry eye syndrome, mild cataracts in both eyes, and glaucoma. A July 2003 VA progress note indicates that the Veteran was seen in the Optometry clinic for evaluation because his eyes felt irritated. Following an evaluation, the assessment was plaque, hypertension retinopathy, cataract, and refractive error. An October 2003 VA progress note reflects diagnoses of diabetic, no retinopathy in both eyes, blepharitis in both eyes, glaucoma suspect, plaque in the right eye, and ptosis in both eyes. At an April 2005 optometry consultation, ocular diagnoses included glaucoma and cataracts. It was noted that he had been diagnosed with glaucoma for the past 2 years. The only eye complaints reported by the Veteran were occasional itching and redness. The assessments included bilateral cataracts causing a slight decrease in vision. Of record is a response from the National Personnel Records Center (NPRC), 3101 print, dated April 23, 2012, indicating that searches of "Walter Reed Army Hospital" for 1960 were conducted, but no records were located. Of record is a formal finding of unavailability, dated in April 2012, wherein it was determined that the Social Security Administration (SSA) and STRs are unavailable for review. It was noted that all procedures to obtain these records have been correctly followed, and all efforts to obtain the records have been exhausted. It was further determined that further attempts to obtain those records would be futile. The Veteran was afforded a VA examination in August 2012. It was noted that the Veteran had a history of glaucoma in both eyes treated with Travatan; he also had a history of insulin dependent familial diabetes. On examination, he had corrected visual acuity of 20/40, bilaterally. Pupils were round and reactive to light. There was no evidence of diplopia. Both corneas revealed evidence of arcus senilis, and the lenses showed bilateral nuclear and cortical cataracts. Fundus examination was abnormal. The eye examiner noted findings of contraction of the visual field in both eyes. Examination also revealed evidence of open-angle glaucoma in both eyes requiring continuous medication. There was no neurological eye condition. The pertinent diagnoses were cataract, nuclear and cortical, bilateral; glaucoma, open angle, bilateral; and bilateral arcus senilis. It was concluded that eye disability was less likely than not incurred in or caused by active service. The examiner explained to the extent diabetes mellitus resulted in eye disability, it was familial and not related to active duty. The examiner also noted that the Veteran's glaucoma is not caused by diabetes (or related to service). III. Legal Analysis. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, 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). Refractive errors of the eye are not diseases or injuries within the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. 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); 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 v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After having reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the grant of service connection for a bilateral eye disability, manifested by impaired vision. The Veteran has several exhibited eye disorders including cataracts, arcus senilis, and open-angle glaucoma. In addition, the record also contains evidence of refractive error. Refractive error is not a disease or injury within the meaning of applicable legislation for disability compensation purposes and may not be service-connected. See 38 C.F.R. § 3.303(c). With respect to direct service connection for an acquired eye disorder, the Board finds that the record is against the Veteran's claim. While the STRs show that the Veteran was seen in July 1959 with complaints that he was unable to read fine print; examination revealed that the Veteran's vision was 20/25 bilaterally. He was prescribed corrective lenses for general wear and reading. The eyes were reportedly normal on the separation examination in July 1961; the Veteran denied any history of problems with his eyes and visual acuity was correctable to 20/20. To the extent the Veteran is claiming continuity of eye symptomatology since active service, he is not credible. The Veteran denied having or having had eye problems on examination just prior to service discharge. If eye problems continued since active service, it seems probable that the Veteran would not have denied this so near his service separation. The earliest documentation of an eye disability was in April 2001, at which time it was noted that the Veteran had bilateral refractive error, dry eye syndrome, and bilateral cataracts. The Veteran was subsequently diagnosed with glaucoma in 2003. Essentially, there is no evidence the Veteran suffered from an acquired eye disability or disease until more than 40 years after his discharge from active duty. This significant lapse in time between active service and the first evidence of any eye disability/disease weighs against the Veteran's claim for direct service connection. Evidence of a prolonged period without medical complaint and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, there is no evidence of a chronic eye disability or disease during the Veteran's period of active service, or of continuity of symptomatology after active service. In addition, while the post-service treatment records include diagnoses of cataracts, arcus senilis and open-angle glaucoma, none of these records suggests any causal relationship between these disabilities and the Veteran's military service. Rather, following the August 2012 VA examination, the examiner stated that it is less likely than not that the Veteran's diagnosed eye disorders were incurred in or caused by the claimed inservice injury, event or illness. Moreover, the Veteran has not brought forth any medical evidence that would either refute the medical evidence of record or suggest a nexus between his eye disorders and service. To the extent that the Veteran himself asserts he suffers from an eye disorder as a result of having a chemical accidently sprayed into his eyes, there is no evidence that he possess the requisite medical training or expertise necessary to render him competent to offer evidence on matters such as medical diagnosis or medical causation. Cromley v. Brown, 7 Vet. App. 376, 379 (1995). Essentially it is beyond the Veteran's competency to link his claimed eye conditions to an inservice event. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions) Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for an eye disability, manifested by impaired vision. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The benefit sought on appeal is therefore denied. ORDER Service connection for an eye disability, manifested by impaired vision, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs