Citation Nr: 1325762	
Decision Date: 08/14/13    Archive Date: 08/16/13

DOCKET NO.  08-05 555	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Denver, Colorado


THE ISSUE

Entitlement to service connection for residuals of a bilateral eye injury.


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. Bredehorst

INTRODUCTION

The Veteran served on active duty from December 1965 to November 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Waco RO that declined to reopen the claim of service connection. The case has since been transferred to the jurisdiction of the Denver RO.

In March 2011, the Veteran testified at a Travel Board hearing before the undersigned; a transcript of this hearing is in the claims file.

The matter was remanded in June 2011 for additional development. In June 2012, the Board reopened the claim of service connection on the basis that new and material evidence was received.  The reopened claim of service connection was then remanded for additional development.
      
The Veteran had also appealed a claim involving service connection for residuals of cold injury to the lower extremities. During the pendency of the appeal, a January 2013 rating decision granted the claim and no material issue remains or has been raised as to the initial assigned disability rating or effective date elements of that claim. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 


FINDING OF FACT

A preponderance of the evidence is against a finding the Veteran has a current bilateral eye disorder that was incurred in service.



CONCLUSION OF LAW

The criteria to establish service connection for a bilateral eye disorder are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. 


The Duties to Notify and Assist

Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

The VCAA and its implementing regulations provide that VA must notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). 

These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). 

The May and June 2007 letters satisfy the content requirements noted above. The RO provided the Veteran the required notice of the evidence and information necessary to substantiate his claim, the information required of him to enable VA to obtain evidence, and the assistance that VA would provide in obtaining supporting evidence. The RO also provided the Veteran all necessary information on disability ratings and effective dates. 

The VCAA notice letters also satisfy pertinent timing requirements. Notice under the VCAA must be provided a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004). The RO sent both notice letters prior to initially deciding the Veteran's claim. 

VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).

The RO made reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A (a), (b), (c) (West 2002). Specifically, the RO tried to secure and associate with the claims file all evidence the Veteran identified as being pertinent to the claim being decided, including service and post-service treatment records. 

During the Veteran's March 2011 hearing, the undersigned Veterans Law Judge (VLJ) identified the issue on appeal and discussed evidence such as the disability in service, nexus evidence, and the possible need for further development. To the extent any deficiency may have occurred, there has been sufficient development undertaken by the RO and through the Board's prior remands in June 2011 and June 2012 in an effort to assist the Veteran in substantiating his claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing. Consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and the Board can adjudicate the claim based on the current record.

In response to the June 2012 remand, additional treatment records were sought, the Veteran had a VA examination, and opinions were offered. Therefore, the remand directives were substantially complied with and the examination was adequate to decide the claim. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 


Merits of the Claim

The Veteran contends he has a current bilateral eye disorder directly related to his military service, to specifically include eye injuries incurred in service.

In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.

To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

A disorder also may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or was seen in service with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service and only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson,21 Vet. App. 303 (2007) (the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means 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).

Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 

In ascertaining the competency of lay evidence, lay persons are competent to provide opinions on some medical issues; their competency depends entirely on the specific disability at issue. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Specifically, lay evidence has been found to be competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr, supra; see also Jandreau, supra; Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). However, laypersons also have been found not competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue).

The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, he prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied.  Alemany v. Brown, 9 Vet. App. 518 (1996). 

The record shows the Veteran had an eye injury in service and that he currently has eye disorders; however, since a preponderance of the evidence is against finding there is a nexus between service and his current eye disorders the claim for service connection will be denied.

The Veteran's service treatment records show that aside from having defective vision that required wearing glasses, there was no bilateral eye abnormality noted at his pre-induction and induction examinations. Although he was noted to have a history of having a cyst removed from his left eye lid, there was no evidence of recurrence on induction or pre-induction examinations. See March and December 1965 examination reports and medical history reports. 

During service, he sought treatment in August 1966 after reporting he had burned his eyes the day before. However, on examination, there was no iritis or photophobia, but he had some pain at the lid margins; he was sent back to duty after the examination. On separation, an August 1967 medical history report shows the Veteran indicated he had eye trouble, which the examiner identified as myopia that was corrected with glasses and a small cyst removed from the left eye lid prior to service with no complications. On examination, his distant vision was 20/25 bilaterally.

Post service medical evidence shows the Veteran currently has diagnoses of bilateral glaucoma, chalazia, dry eyes, refractive error, and cataracts. See May 2008 and May 2012 VA treatment records, and November 2012 VA examination report.

The Veteran therefore has one or more vision disabilities, and a service incident is of record. However, although the first two prongs to establish service connection are met, the preponderance of the evidence tends to show that the current bilateral eye disorders are not related to the Veteran's military service.

The Veteran asserted that his face and eyes were burned in service when a field stove exploded. He alleges that a medic treated the eye injuries by flushing his eyes with water and saline then wrapped them.  He was sent to the hospital for additional treatment and he had to use eye drops daily for approximately one month. See the March 2002 statement. The damage to his eyes progressed over time. Id. In April 2003, he reported that he stayed in the hospital for 1 week following the injury. 

In an October 2004 statement, the Veteran reported he first received medical treatment for his eyes early in 1975, but the facility was currently closed. In 1985, he had eye surgery.  He was seen by a VA physician in 1994 and told that he had trauma to his eyes. 

The earliest post-service medical records concerning the Veteran's eyes were in May 1974 and showed the Veteran was involved in an automobile accident that resulted in an incision across the upper left eyebrow and a second parallel incision across the upper eyelid. He was treated with elevation of the head with ice compresses to the eyes to prevent swelling and peroxide and Neosporin ointment to keep the wounds clean. 

There are no further treatment records until April 1994 when a VA consult request showed the Veteran reported having tearing eyes since he was in Vietnam and that he had not had an eye examination in several years. A treatment record that same month indicated the Veteran was seeking glasses. His medical history included a fire burn to his face in service. He reported his eyes used to water but they stopped after he had a cyst removed in 1986.
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May 1994 VA treatment records showed the Veteran reported he was losing vision in his left eye. He was also suspected of having glaucoma. In October 1994, he was seen for a reddened right eye with findings of erythema and minimal eyelid edema; the assessment was rule out bacteria conjunctivitis. A November 1994 record notes a small visual field defect on the left lateral aspect.

A December 2005 VA optometry note indicated the Veteran's primary complaint was decreased vision. The assessment included probable glaucoma and cataracts.

A June 2006 VA ophthalmology note contained an assessment that includes glaucoma and dry eyes.

On June 2007 VA examination, the examiner noted the Veteran had been treated for chronic angle glaucoma since 2000 at the Dallas VA Medical Center. The Veteran reported an in-service burn injury that singed his eyebrows and eye lashes; he was treated and returned to duty. He complained of chronic left eye irritation and reported using medication for glaucoma and artificial tears for comfort. The physician diagnosed chronic open angle glaucoma with visual field loss in the left eye, but found no residual damage from the field stove injury in Germany.

In October 2007, November 2007, and May 2008 VA treatment records, the eye abnormalities noted included poor visual acuity in both eyes, glaucoma, and dry eyes.

A November 2009 VA optometry note indicated the Veteran had a diagnosis of glaucoma since 1995 and a 20 year history of hordeolum that was recurrent and surgically removed 3 times. 

A February 2010 VA ophthalmology note showed the Veteran reported a 20 year history of a recurrent left chalazion on the left upper eyelid with 3 excisions; the last one occurred in the late 1990s. He had a current chalazion that needed excision.

In September 2010, the Veteran complained of left eye discharge and irritation; he had been treating a left upper lid chalazion with warm compresses. 

A November 2010 VA treatment record indicated a chalazion was removed from the left upper eyelid. He had a history of several removals in the past with recurrences in the same location.

A January 2011 VA ophthalmology record indicated the Veteran's left upper eyelid chalazion was drained in November but returned. The assessment included an eyelid lesion with compressions for chalazion.

In March 2011, the Veteran testified to the effect that he had "blisters" on his eyelids in service following a burn injury to the eyes that have continued since then. He also stated his eyes have been dry since then and as a result he had to use artificial tears. No physician was able to say what his blisters were and why they occurred or state whether these recurring blisters were a result of the incident in service. He denied having glaucoma or any visual impairment as a result of the in-service eye injury. See pages 12 through 15 of the hearing transcript.

A May 2012 VA treatment record located in the electronic records contains an assessment that includes lid lesion, recurrent multiple times and drained; it was thought to be chalazion but its recurrent nature was of concern. The physician commented about whether there was history of an injury to this area years ago. An eye examination contained an impression of left eye chalazion, and bilateral refractive error, dry eyes, blepharitis, cataracts, and glaucoma.

On November 2012 VA eye examination, the claims file was reviewed and the examiner noted the Veteran had diagnoses of glaucoma in each eye, cataracts in each eye, and chalazia; macular degeneration was not found on examination. The examiner noted pertinent aspects of the Veteran's medical history. The physician's discussion of evidence noted the Veteran's burn injury to the eyes and face in service, and added this was not severe enough to require hospitalization or further treatment other than an examination because the Veteran was returned to duty. 

Significantly as it bears on the presence of a resulting disorder, the physician also noted the Veteran had multiple chalazia that started more than 30 years after the injury, based on histories provided in the medical records. The examiner opined it was more likely than not that the recurrent intermittent recurrent chalazia was not related to the eye injury in service. He also opined that the recurrent chalazia, cataracts, and glaucoma did not have their onset in service and were not aggravated by active service. The examiner explained that any problem with the eyelids related to the injury in August 1966 would have been noted at the time of the injury and in the next several days, months, and years; not more than 30 years later. He also opined that the Veteran's glaucoma and cataracts were not due to the injury in service because of the long time between the injury and the diagnosis of the glaucoma and cataracts.

The preponderance of the evidence is against a finding of a nexus between a current eye disorder and the Veteran's military service. Although the Veteran has attributed dry eyes and blisters to the in-service eye injury, he also noted that physicians could not identify what he referred to as blisters, and the treatment records showed the recurrent "blisters" were diagnosed as chalazion or hordeolum, which were also known as cysts or sties, respectively. See Dorland's Illustrated Medical Dictionary 305 and 776 (28th Ed. 1994). The record indicates that all of these disorders are not related to service or the in-service eye injury.

The Veteran did not provide any evidence in support his claim other than his statements and testimony. Regarding the probative value of his lay evidence, various factors were considered that resulted in the Board finding it was not sufficiently probative to grant the claim. Based on the nature of the eye disability, the Veteran's conflicting evidence as to the severity of the in-service injury, inconsistency in reported post-service symptoms, an intercurrent eyelid injury, and a substantial lapse in time between the initial injury and onset of symptoms decades later, the Veteran is not competent to establish a nexus. 

The May 2012 VA treatment record did not support the claim because while it noted the recurrent chalazion and the physician's comment questioned whether the Veteran had a prior injury, he did not go so far as to link the chalazion to an in-service injury. Therefore, no actual opinion was offered. 

The Veteran testified his dry eyes and "blisters" were due to the injury in service and that he had continued symptoms since service. Dry eyes, chalazion, and hordeolum are not medical conditions listed as a chronic disease under 38 C.F.R. § 3.309; therefore, continuity of symptoms does not apply in this case. Walker, supra. Furthermore, the record shows he provided contradictory evidence regarding his post service symptoms. In April 1994, he indicated he had watery eyes since service but that it stopped when he had a cyst removed in 1986. When considering this inconsistent evidence, the April 1994 record is more probative regarding whether the Veteran had dry eyes since service because records more contemporaneous to the time period in question are considered more accurate and probative than contradictory statements made many years later. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). 

Also highly probative is the severity of the in-service eye injury. The Veteran's March 2002 and April 2003 assertions regarding the severity of the injury far exceeded what was shown to have occurred based on the service treatment records. He also testified to having blisters after the incident. Generally, a Veteran is competent to report his symptoms or injuries in service. See Jandeau, supra; Buchanan, supra. However, these statements are not credible or probative when considered in light of other evidence of record. Barr v. Nicholson, 21 Vet. App. 303 (2007). While the severity of an in-service injury may not always be a factor in determining whether there is a nexus to a current disorder, the November 2012 VA examiner considered this probative when he used it to support his opinion. 

The Veteran's service treatment records only showed he had some pain in his eyelids and that he was sent back to duty with no further complaints, findings, or treatment. There were no objective findings of blisters noted in the treatment record. His separation examination was negative for any objective findings and the only item related to the eyes noted on the associated medical history report was the removal of a cyst prior to service without complications. The November 2012 VA examiner also stated that the in-service injury was not severe enough to require hospitalization or treatment other than the examination. The service treatment records and the examiner's determination are highly probative and therefore more persuasive as to the symptoms and severity of the eye injury in service than the Veteran's subjective reports. Id. The service treatment records, in particular, were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). 

Evidence that also weighed against the claim was the June 2007 VA examiner's opinion that there was no residual damage from the field stove injury that incurred in service and the negative opinions offered by the June 2012 VA examiner. The more recent opinion is highly probative because the physician reviewed the file, provided an accurate medical history, and explained his reasoning for why the Veteran's eye disorders did not have their onset during service and were unrelated to the in-service injury.

Aside from the injury to the left upper eyelid that was the result of a car accident in 1974, the Veteran was not shown to have any eye problems until many years after service. The only history of an eye problem reported in April 1994 was the removal of a cyst in 1986 that was almost 20 years after service. Dry eyes were noted in 2006, almost 40 years after service. While not dispositive, the lengthy period between service and the earliest indication of an eye disorder may be considered in the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (holding presumption of service connection for colon disability to be rebutted by clear and convincing evidence in the form of absence of post-war medical records of treatment for colon-related problems for period of over 40 years).

To the extent that the Veteran has other eye disorders, such as glaucoma and cataracts, there is no evidence of them in service or shortly after service, and no nexus evidence, lay or medical, that links them to service. In fact, the Veteran specifically denied glaucoma or a vision problem as part of his appeal. Therefore, these disorders are outside the scope of the appeal. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).

The benefit of the doubt rule provides that the Veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in his claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the Veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Here, because there was a lengthy period between service and post-service evidence of an eye disorder, and negative opinions were offered as to whether there were current residuals of the in-service injury or whether the eye disorders were otherwise related to service, the preponderance of the evidence is against the claim and service connection for an eye disorder is denied. Id. 


ORDER

Service connection for residuals of a bilateral eye injury is denied.



____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs