Citation Nr: 1326531 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 09-36 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an eye disability, including right superior quadrantanopsia, refractive error, pinquecula, cataract, dry eye, suspect glaucoma, and light sensitivity secondary to a shell fragment wound or traumatic brain injury. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at an October 2010 hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. A July 2011 Board decision denied entitlement to service connection for right superior quadrantanopsia. Subsequently, the Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an April 2012 Order granting a Joint Motion for an Order Partially Vacating and Amending the Board Decision, the Veteran's appeal concerning this issue was remanded to the Board. The Board remanded the Veteran's claim in February 2013 for additional development. The claim has been returned to the Board for further appellate review. Applying the Court's decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the issue as stated on the title page of this decision to encompass all claimed disabilities of the eyes and not limit the appeal to only the right superior quadrantanopsia that was initially claimed. The Veteran is not prejudiced by this action as it provides for the broadest possible analysis of a claim of entitlement to service connection for an eye disability. FINDING OF FACT An eye disability did not have its onset in service and is not the result of disease or injury incurred during active military service. CONCLUSION OF LAW The criteria for service connection for an eye disability have not been met. 38 U.S.C.A. §§ 1110, 1137, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2012). The record shows that letters dated in October 2007 and December 2007 satisfied the duty to notify provisions; the December 2007 letter also notified the Veteran of regulations pertinent to the establishment of an effective date and disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also finds that the duty to assist the Veteran has been satisfied in this case. The record includes service treatment records, VA examination reports, VA treatment records, private treatment records, and lay evidence. In February 2013, the Board remanded the Veteran's claim to afford him an additional VA examination. The record demonstrates that the Veteran underwent VA examination in March 2013 and April 2013. The March 2013 VA examiner reviewed the Veteran's relevant medical history, to include his documented in-service injury and his lay testimony, completed a physical examination and other appropriate testing, and provided an opinion as to the clinical findings. 38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007). The April 2013 VA examiner reported additional clinical findings as well. Therefore, the Board finds the examinations to be sufficient and adequate for purposes of determining service connection. In addition, the Board finds the AMC substantially complied with the remand directives with respect to the issue. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Veteran was assisted at the hearing by an accredited representative from The American Legion. The representative asked the Veteran specific questions regarding his in-service injury and his symptoms during and following separation from service. The VLJ noted the Veteran's specific statements and indicated he would seek to obtain any other pertinent documentary evidence not currently associated with the claims folder that might substantiate the claim. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) . There is no indication in the record that any additional evidence relevant to the claim is available and not part of the claims file. See Pelegrini, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter decided. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). The Veteran asserts that he has an eye disability as the result of a head injury incurred during active duty. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A March 1968 service treatment record demonstrates a diagnosis of wound, penetrating, due to fragments, forehead, no artery or nerve involvement. The record notes the Veteran was injured by a grenade and awarded the Purple Heart. There was no intracranial penetration or loss of consciousness. There was a metal fragment in the anterior frontal sinus, and the forehead wound was sutured. Because of the Veteran's history of previous rheumatic fever, he was admitted for five days of parental therapy. An October 1968 service treatment record indicates the Veteran had sustained a fragment wound to the forehead six months ago and since that time had been bothered by head pain. An additional October 1968 service treatment record notes a fragment in the left frontal sinus anterior wall penetrating into the sinus cavity. The Veteran reported continued pain and discomfort over the bridge of his nose. X-ray examination confirmed a two to three millimeter fragment at the site of the discomfort. A January 1969 service treatment record indicates the Veteran had returned from the Republic of Vietnam and was complaining of pain from shrapnel in the left frontal sinus area. X-ray examination confirmed a fragment. However, a February 1969 service treatment record shows the Veteran was not having any difficulty, was going to wait on surgery, and would return if symptomatic. A November 2007 VA treatment record reflects a diagnosis of right superior homonymous quadrantinopsia and sensitivity to light since a traumatic brain injury (TBI) in Vietnam and rule out compression. A December 2007 magnetic resonance imaging scan of the Veteran's brain showed no acute intracranial pathology and scattered FLAIRE hypertensities within the white matter, likely the result of chronic small vessel ischemic change. The record noted that the Veteran had a clinical history of right superior quadrantanopia on visual field testing and a history of TBI. An October 2008 private prescription and authorization for eyeglasses record indicates the Veteran had photophobia secondary to service-connected issues. The Veteran underwent VA examinations in May 2008 and June 2009 in conjunction with his service connection claim. On VA examination in May 2008, the Veteran gave a history of a shell fragment wound to the left forehead and subsequent development of right superior homonymous quadrantanopsia. He also complained of light sensitivity. Upon physical examination, the VA examiner diagnosed severe light sensitivity more likely than not due to TBI and right superior quadrantanopsia more likely than not due to TBI. The VA examiner also noted that the visual field defects may include the right superior quadrantanopsia and possibly glaucoma as well as an enlarged cup to disc ratio, more so in the right eye. Other diagnoses included glaucoma suspect based on cup to disc ratio bilaterally and early nuclear sclerotic cataract. The VA examiner did not discuss the Veteran's medical records and did not provide a rationale for the opinion. In June 2009, the VA examiner reviewed the Veteran's claims file, to include his service treatment records and his medical history. After physical examination, the VA examiner provided diagnoses of visual field defect bilaterally - constricted III4e isopter; superior/superior temporal OD and paracentral scotoma OD; superior/superior nasal OD and paracentral scotoma OD; visual field defect bilaterally, not consistent with right superior quadrantanopsia; and glaucoma suspect bilaterally. Based on the evaluation, to include Goldmann Visual Field testing, the VA examiner found the Veteran did not display a right superior (homonymous) quadrantanopsia. The Veteran showed some constriction of his superior and superior temporal field OD and his superior and superior nasal field OS, along with a superior paracentral scotoma OU. The VA examiner opined that he was unable to resolve whether the findings were due to the Veteran's active military service or if they were due to an ocular condition such as glaucoma (for which the Veteran was not currently diagnosed) without resorting to speculation. The VA examiner found it was worth noting that the May 2008 VA examiner also thought the Veteran was a glaucoma suspect. As the Veteran was scheduled for a routine appointment in the near future for further evaluation of his symptoms, the VA examiner recommended deferring a rating decision until the exact etiology of visual field changes could be determined. A September 2010 VA treatment record demonstrates that the Veteran had a past ocular history of trauma-related quadrantanopsia and essential (central) photophobia. At the Board hearing in October 2010, the Veteran testified that VA physicians had told him that his eye condition was definitely related to his in-service injury. Pursuant to the Board's February 2013 remand, the Veteran underwent additional VA examination in March 2013. The VA examiner diagnosed refractive error: mixed astigmatism OU; pinquecula OU; mild cataracts OU; dry eye/tear film deficiency OU; glaucoma suspect-large optic nerve cupping OU; light sensitivity/photophobia OU; and constricted superior visual field OU. The VA examiner reviewed the Veteran's claims file and noted the in-service injury recorded in the service treatment records. The VA examiner also reviewed the previous VA examination findings and opinions. The VA examiner opined that the ocular diagnoses were not related to the Veteran's active military service, to include any head injury sustained therein. The VA examiner noted that the Veteran's refractive error was corrected to achieve 20/20 visual acuity at the time of his enlistment. The VA examiner found it significant that there was no evidence of pinquecula, cataracts, glaucoma suspect (large optic nerve cupping), dry eye, light sensitivity, or constricted superior visual field noted in the service treatment records. Rather, pinquecula OU was diagnosed in 2008; mild cataracts OU had been diagnosed at least since 2007; dry eye/tear deficiency OU was diagnosed in 2010; and glaucoma suspect was diagnosed in 2008. With respect to the Veteran's light sensitivity and visual field findings, the VA examiner opined that light sensitivity and visual field constriction could occur secondary to a TBI. Although the Veteran did incur a head injury during active duty, the VA examiner found it significant that the competent VA examinations of record did not find that the Veteran had incurred a TBI during service. Consequently, without the diagnosis of a TBI, the VA examiner was not able to relate the Veteran's light sensitivity and visual field findings to his in-service head injury. Although all traumatic brain injuries were head injuries, the VA examiner noted that the reverse was not true. Additionally, the March 2013 VA examiner noted that the Veteran's service treatment records reflected that at the time of his head injury in 1968, a medical authority documented that he had a penetrating head injury. However, a series of skull X-ray examinations and a head CT scan performed after service did not verify any shrapnel. Regarding the Veteran's visual field findings, his Goldmann visual field OD/OS showed constriction, primarily superiorly. There was no evidence of superior quadranopsia or hemianopsia as previously documented in the medical records. The VA examiner opined that he could not attribute the Veteran's current eye disabilities to a TBI or any other cause related to the Veteran's military service since the criteria for a TBI were not met per the previous VA examiners' opinions of record. Here, the record reflects multiple diagnoses for an eye disability during the pendency of the appeal, and as such, the Board finds the evidentiary requirement of demonstrating a current disability has been satisfied. Hickson v. West, 12 Vet. App. 247, 253 (1999). Although the Veteran's service treatment records demonstrate the Veteran incurred an in-service head injury, the records do not demonstrate any complaints of, treatment for, or diagnosis of an eye disability other than the refractive error that was noted and corrected at the time of enlistment. In addition, the Board finds the competent and probative evidence of record does not relate any eye disability to active military service, to include an injury sustained therein. In this respect, the Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that several VA treatment records indicate the Veteran had trauma-related quadrantanopsia, and the May 2008 VA examiner diagnosed severe light sensitivity more likely than not due to TBI and right superior quadrantanopsia more likely than not due to TBI. However, the Board affords this evidence less probative value than the March 2013 VA examination and opinion. When contemplating a medical opinion, the relevant inquiry is whether "the examiner providing the report or opinion is fully cognizant of the claimant's past medical history." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). First, it is not clear whether the VA physicians providing the history and diagnoses reviewed the Veteran's claims file; rather, it appears that the VA physicians were basing their diagnoses on the medical history as reported by the Veteran. In addition, the VA physicians provided no basis or rationale for the diagnoses. Further, as found in the February 2013 Board decision, the evidence of record does not demonstrate that the Veteran incurred a TBI during active duty. As the May 2008 VA examiner based the opinion on the supposition that the Veteran had incurred a TBI in service, the Board affords the opinion little probative value. In addition, the May 2008 VA examiner provided no rationale for the opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Furthermore, as the June 2008 VA examiner stated that he could not resolve the issue without resorting to speculation, the Board finds the opinion inadequate for the purpose of determining service connection. The Board also notes that the October 2008 private physician found the Veteran had photophobia secondary to service-connected issues. However, as the private physician did not specify to which service-connected issues he referred and did not provide a rationale for the opinion, the Board finds the opinion carries little probative weight. Here, the Board finds the March 2013 VA examiner's opinion to be the most competent and probative evidence of record concerning service connection for an eye disability. First, the March 2013 VA examiner reviewed the Veteran's claims file in detail and cited to specific records when providing the opinion. Moreover, the March 2013 VA examiner provided a thorough, detailed rationale for the opinion, specifically addressing the service treatment records, the history of diagnoses, and the current findings. The VA examiner opined that the Veteran's current ocular diagnoses (including right superior quadrantanopsia, refractive error, pinquecula, cataract, dry eye, suspect glaucoma, and light sensitivity ) were not related to active military service, to include any head injury sustained therein. The VA examiner found it significant that there was no evidence of pinquecula, cataracts, glaucoma suspect (large optic nerve cupping), dry eye, light sensitivity, or constricted superior visual field noted in the service treatment records. The VA examiner also opined that he could not attribute the Veteran's current eye disabilities to a TBI or any other cause related to the Veteran's military service since the criteria for a TBI were not met. The Board acknowledges that the Veteran is competent to testify to events and symptoms that he actually experienced or witnessed, such as incurring a head injury in service and having eye problems since the injury. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). However, a layperson without medical training is not qualified to render medical opinions regarding the etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159(a)(1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, as the Board finds that the etiologies of the eye disabilities diagnosed during the pendency of the appeal are not simple questions that can be determined based on personal observation by a lay person, the Veteran's lay testimony is not competent to establish medical etiology or nexus. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. It is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of the eye disabilities diagnosed during the appeal period. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As such, the Veteran's lay opinion does not constitute competent medical evidence and lacks probative value. Based on the foregoing, the Board finds that the probative, competent evidence of record is against a grant of service connection for an eye disability. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for an eye disability including right superior quadrantanopsia, refractive error, pinquecula, cataract, dry eye, suspect glaucoma, and light sensitivity is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs