Citation Nr: 1326772 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-23 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for loss of vision of the left eye. REPRESENTATION Appellant represented by: South Carolina Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and S.C. ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from October 1951 to July 1953. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2013, the Veteran appeared at hearing before the undersigned Veterans Law Judge. A transcript of the hearing is the Veteran's file. In April 2013 the issues of service connection for hearing loss and for loss of vision of the left eye were reopened and remanded by the Board for additional development. The requested development was accomplished. While on appeal in a rating decision in June 2013, the RO granted service connection for hearing loss. As the benefit sought was granted in full, the issue is no longer before the Board. FINDING OF FACT A left eye disability other than refractive error was not affirmatively shown to have been present in service and left eye vision loss is unrelated to an injury, disease or event in service. CONCLUSION OF LAW The criteria for service connection for loss of vision of the left eye are not met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter dated in May 2010. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained VA records and private medical records. In April 2013, the Board remanded the case to obtain private records and to afford the Veteran a VA examination. As the development has been completed, no further action to ensure compliance with the Board's remand directive is necessary. All of the actions directed by the Board have been completed. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The Veteran's service treatment records could not be located by National Personnel Records Center (NPRC). In August 2010 and October 2011, the Veteran was informed that his records has been requested from the NPRC, but that all of his service treatment records were unavailable. He was given opportunity to submit any records in his possession. The Veteran was afforded a VA examination in May 2013. As the examination report was based on review of the Veteran's history and described the disability in sufficient detail so that the Board's review is a fully informed one, the examination report is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disabilities in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. §1110. Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In the absence of a superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. § 3.303(c). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Evidence The Veteran's service treatment records are unavailable. The Veteran asserts that his vision was normal upon entrance into service and 20/40 in the left eye when he was discharged. VA records show that in January 2006 there was a fifteen to twenty year history of a retinal scar. The Veteran stated that he had 20/20 vision when he entered the Korean conflict. Private medical records show that in April 2010 an atrophic disciform scar and a senile (age-related) nuclear cataract of the left eye were note. In May 2010, the Veteran's private physician stated that the Veteran had bilateral age-related macular degeneration and disciform scarring in the left eye which caused a significant vision deficit. In August 2010, VA records include a diagnosis of macular degeneration. In March 2013, the Veteran testified that on separation examination he was told his vision was 20/40. He stated that he did not know he had a problem with his left eye at that time. He testified that he did not suffer an eye injury in service and that he started to wear glasses after he had right eye surgery around 2002. The Veteran testified that his left eye vision got to the point that he could no longer see in late 1960s. In May 2013, the Veteran's private physician noted that the Veteran had macular degeneration and chorioretinal scars on the left eye and that the Veteran had severe vision loss in the left eye and was at risk of vision loss from the right eye from the same process. On VA examination in May 2013, after a review of the Veteran's file, the VA examiner stated that the Veteran's macular scar more likely than not developed after the Veteran's separation from service in 1953. The VA examiner stated that the fact that vision loss was at the level of counting fingers versus 20/40 in 1953 was inconsistent with refractive error as the cause of the Veteran's vision loss currently. It was noted that counting fingers vision was due to presence of macular scar. The VA examiner expressed the opinion that the current ocular conditions, disciform macular scar and cataract, were less likely than not due to progression of refractive error and more likely than not developed since 1953 as there had been an interval profound drop in correctable visual acuity and if it were due to refractive error it should have been correctable, which was not the case. It was noted that the Veteran's level of vision was more likely than not due primarily to macular scarring and less likely than not due to cataract or refractive error. Analysis The Veteran asserts that his left eye vision loss started in service with decreased vision on separation from service. The competent medical evidence shows that refractive error, 20/40 vision at the time of discharge as described by the Veteran, is unrelated to the current left eye disabilities. And while the Veteran is competent to describe visual impairment, the medical question of whether the current left eye disabilities were due to 20/40 vision in service falls outside the realm of common knowledge of a lay person. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to identify the presence or diagnosis of the current left eye disabilities. To the extent the Veteran asserts a causal relationship between his current disabilities and service, the assertion constitutes the Veteran's opinion and the Veteran as a lay person is competent to offer an opinion on a simple medical condition. But the cause of loss of vision is not a simple medical condition. For this reason, the Veteran's lay opinion is not competent evidence and is not admissible as evidence favorable to claim. As the Veteran's statements are not competent evidence, the Board need not address credibility. The competent medical evidence weighs against the Veteran's claim. The Veteran's private physician did not relate the left eye disabilities to the Veteran's service and macular degeneration has been associated with age, as opposed to 20/40 vision in service as asserted by the Veteran. The VA examiner also found it was more likely than not macular scarring occurred after service, which was cause of the Veteran's left eye vision loss. No medical professional has associated refractive error, 20/40 vision as described by the Veteran, to the current left eye disabilities. Refractive error alone cannot be service connected, and the competent medical evidence weighs against a finding that the current left eye vision loss, including a cataract and macular degeneration, is unrelated to service, including refractive error. As the preponderance of the evidence is against the claim of service connection, there is no reasonable doubt to be resolved and service connection is not warranted. ORDER Service connection for loss of vision of the left eye is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs