Citation Nr: 1327472	
Decision Date: 08/27/13    Archive Date: 09/05/13

DOCKET NO.  11-34 080	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office Center in Wichita, Kansas


THE ISSUES

Entitlement service connection for a right eye disorder (other than a round, right eye corneal scar).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel



INTRODUCTION

The Veteran served on active duty from April 1957 to April 1959.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.

In April 2012 and April 2013, the Board remanded this case for additional evidentiary development.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

The issue of service connection for depression as secondary service-connected hearing loss has been raised by the Veteran's representative, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran's eye symptoms and diagnoses shown during the appeal period are not due to disease or injury incurred in service, and no congenital defect of the right eye was subjected to a superimposed disease or injury in service resulting in additional disability.


CONCLUSION OF LAW

The criteria for service connection for a right eye disorder (other than a round, right eye corneal scar) are not met.  38U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.

As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).
The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The record reflects that VA sent to the Veteran all required notice in an August 2010 letter, prior to the rating decision on appeal.

The Board also finds the Veteran has been afforded adequate assistance in regard to the claim on appeal.  VA obtained the all relevant medical records identified by the Veteran and associated these with the claims files.  VA notified the Veteran in December 2010 that his service treatment records (STRs) had been requested from the National Personnel Records Center (NPRC) and that the NPRC responded that they did not have his records.  VA then requested from the Veteran any copies of STRs in his possession.  The Veteran responded that his copies of STRs had been destroyed in a fire.

VA further afforded the Veteran appropriate VA medical examinations and obtained a medical opinion on his behalf.  Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the Veteran's claim; the Board is also unaware of any such evidence.

The Board previously reviewed the record, determined that the VA medical opinions of record were inadequate, and remanded the case for the purpose of obtaining an adequate VA medical opinion.  VA afforded the Veteran a VA examination in May 2013 and obtained a medical opinion.  Although the Board had requested preparation of the medical opinion by an ophthalmologist and the medical opinion obtain was from an optometrist, the Board finds that the medical opinion is highly responsive to the Board's remand questions and reflects an understanding of the information sought by the Board to include a complete rationale for the medical opinions rendered.  Therefore, having reviewed the examination report along with the medical opinion, the Board finds substantial compliance with the requirements articulated in the Board's prior remand decisions.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999)

Accordingly, the Board will address the merits of the claim.

II.  Service Connection

The Veteran seeks compensation for a right eye disorder (other than service-connected right eye corneal scar).  Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  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 claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2011); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Legal Criteria

Initially, the Board notes the Veteran does not assert that his claimed problems are a result of combat.  Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not for application in this matter.
 
Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131.  Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303.
 
Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303.
 
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b).  However, the Federal Circuit decision in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), recently held the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).

A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service.  Only such conditions as are recorded in examination reports are to be considered as noted.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).

A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).  Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened.  See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service.  38 C.F.R. § 3.306(b).

To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003).  The clear and unmistakable evidence standard requires that the result be undebatable.  Cotant v. West, 17 Vet. App. 116, 131 (2003).  In considering the effect of section 1111 on claims for service-connected disability, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has stated that the government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition.  Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (citing 38 U.S.C.A. § 1153).

Congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have preexisted service.  38 C.F.R. §§ 3.303(c), 4.9.  But service connection is generally precluded by regulation for such "defects," because they are not "diseases" or "injuries" within the meaning of applicable legislation.  38 C.F.R. §§ 3.303(c), 4.9, 4.127; Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007).

Service connection may be granted for congenital or hereditary diseases if initially manifested in or aggravated by service.  VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90, (July 18, 1990).  Such "diseases can be considered to be incurred in service if their symptomatology did not manifest itself until after entry on duty."  Id.  "Only when symptomatology and/or pathology exist can he or she be said to have developed the disease."  Id.  In this context, the term "pathology" is used in the sense of an active disease process, not just a mere predisposition to develop a disease, which process may or may not precede symptomatology.  Id.

Service connection is only possible for a congenital defect if there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury.  See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514- 15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99.

The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006).  It is noted that competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995). 

A layperson (non-expert) can provide competent evidence as to events witnessed by the person and symptoms experience by the person, both as to kind and date of the event or symptoms.  See Layno supra., 470 (explaining that "lay testimony is competent only so long as it remains centered upon matters within the knowledge and personal observations of the witness").

Although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case.  Guiding factors in evaluating the probative value of opinion of a medical expert are whether the opinion was based on sufficient facts or data, whether the opinion was the product of reliable principles and methods, and whether the medical expert applied the principles and methods reliably to the facts of the case.  See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).  Most of the probative value of a medical opinion lies in its reasoning.  Id. at 304.

Factual Background and Analysis

VA treatment records dated since early 2000 reflect diagnoses for blurred vision, hyperopia, astigmatism with presbyopia, and an old corneal scar.  A July 2002 VA treatment note reflects an assessment for hyperopia, astigmatism with presbyopia, and "ocular health normal."  The Veteran presented for vision complaints in March 2004, stating that he was "not seeing well up close to read."  The assessment was the same as previously and glaucoma suspect of the eyes.  In December 2005, the Veteran complained of a having a foreign body sensation in his right eye with redness, assessed as a benign subconjunctival hemorrhage.  In June 2010, the Veteran complained of blurry vision of the right eye and noted recent TIA attacks.  Ocular history noted old corneal scar of the right eye.  The assessment was hyperopia, astigmatism with presbyopia of the eyes, and old corneal scar of the right eye.

In August 2012, a VA eye examination was conducted by T. Lutz, O.D. (optometrist).  He diagnosed the Veteran with corneal scar of the right eye, and posterior subcapsular cataract of both eyes.  There was no decrease in visual acuity or other visual impairment attributable to corneal condition of the right eye or preoperative cataract of both eyes.  Exam showed no impairment of visual field.  The Veteran provided a detailed history of right eye injury in service, prior to 1959, when his eye became irritated, painful, reddened and teary after an artillery exercise.  By history, a medical corpsman wiped out the eye in an attempt to remove any foreign particles, but he continued to feel right eye irritation and discomfort for years afterward.  By history, he sought medical care and a metallic foreign particle was removed from his right eye in 1960.  The Veteran reported that, afterwards, the comfort of his right eye returned to normal.  Also, by history, in 1962, the Veteran had recurrence of eye irritation, pain, redness, and tearing that progressed over several months, which was assessed as an ulcer on the surface of his right eye.  He reported that the right eye was scrapped on two occasions, patched, and treated with medicated drops for a period of several months.  He stated that the right eye healed and returned to normal.  The examiner noted that the Veteran had hyperopic refractive error of the eyes that had increased over the years, but was expected in hyperopic individuals.  However, he opined further that:

Given the situation that the right has more hyperopia than the left, . . . [it] is as least as likely as not this additional hyperopia was subjected to the superimposed corneal ulcer that the veteran had in 1962.

[T]here is a second corneal scar. . . of the right eye. . . [The second] corneal scar is at least as likely as not have been caused by the corneal ulcer that the veteran experienced in 1962. It is also opined that the corneal ulcer that caused the irregularly shaped corneal scar did not have its onset during active duty.

A supplemental VA medical opinion dated in November 2012 by Dr. Lutz reflects that he reviewed the claims file then opined that the claimed condition "is less likely as not" proximately due to or the result of the Veteran's service.  His rationale was as follows:

The Veteran developed a corneal ulcer of the right eye in 1962.  Prior to this, the Veteran experienced irritation, pain, redness and tearing of the right eye in 1959, from an injury he suffered, while on active duty, stationed in Korea.  This irritation, pain, redness and tearing of the right eye continued from 1959 to 1960, when a foreign particle was removed from the right eye.  After the foreign particle was removed, the comfort of the right eye returned to normal.

A February 2013 VA medical opinion by L. Terry-Choyke, DPM reflects that "It is less likely than not that the Veteran's claimed right eye condition to include residuals from corneal scar [is] proximately due to an event, or injury sustained while in service."  Her rationale was that, because service treatment records and clinical records associated with the Veteran's treatment in the 1960s are missing, she was unable to render an opinion on causation.  But, then she opined that, based on the Veteran's medical history and the definition of corneal ulceration, it was "LESS LIKEY THAN NOT that an ulceration of the cornea was proximately due to or caused by a foreign body obtain in 1959 or removed in 1960."  Rather, she stated that "It is as least as likely as not that the ulceration, regardless of cause, was acute in nature rather than chronic."

Report of VA examination dated in May 2013 reflects a medical history from the Veteran, a comprehensive review of the claims files and relevant medical records, and physical examination.  The examiner addressed the Veteran's diagnoses of right eye ulcer shown in1962, hyperopia, astigmatism, and presbyopia.  He indicated that the Veteran's 1962 right eye ulcer was due to herpes simplex keratitis infection based the current medical findings coupled with the Veteran's history and the medical treatment rendered in 1962.  In regards, to the Veteran's refractive error of the right eye-hyperopia and astigmatism were described as congenital; and presbyopia was described as an age-related condition.

The examiner opined that these conditions were less likely as not subjected to superimposed disease or injury in service.  His rational was:

The right eye has hyperopia and astigmatism.  In fact each eye has hyperopia and astigmatism, and this refractive error is congenital.  Being congenital, the veteran was born with hyperopia and astigmatism in each eye.  The hyperopia and astigmatism is therefore pre-existing to any eye disease or eye injury that the veteran may have experienced in service.

The Veteran did not report having any disease of the right eye during service.

While in service in 1959, the veteran suffered an injury to the right eye, during an artillery firing exercise, when stationed in Korea.  In 1960, a foreign particle was removed from the right eye.  Corneal bimicroscopic examination shows the right eye to have a small 1/2 mm faint round corneal scar about 2 mm below the visual axis.  This faint corneal scar presents as the typical and classic scar after removal of a small metallic superficial corneal foreign body.  This corneal scar is very small (1.2mm in size), very faint (it not a dense leukomatous scar), and is positioned off the visual axis, and as such, has no effect on refractive error of the right eye.  Small single and isolated faint scars of this type are not known to cause or change the refractive error of the eye involved.

The examiner further noted that the Veteran had two independent conditions involving the cornea of the right eye:  (1) a round corneal scar below the visual axis secondary to metallic fragment, that is service-connected; and (2) a "second corneal scar located in the inferior-nasal quadrant of the cornea, being faint and irregularly shaped and best described as 'ameboid.'"  The examiner opined that the second "ameboid shaped corneal scar [of the right eye] was less likely than not to have had its onset in service;" and that "this ameboid shaped corneal scar found in the right eye is less likely than not to have been related to any event or incident of service."  His rationale was:

The veteran has corneal scarring of the right eye, due to a corneal ulcer.  This corneal scarring and the corneal ulcer did not have their onset during service.  The veteran reported that he developed corneal ulcer of the right eye in 1962, which resulted in corneal scar located in the inferior-nasal quadrant of the cornea.  This corneal ulcer occurred three years after discharge from active duty.

The corneal scarring and the corneal ulcer is [sic] not related to any event or incident during service.  The veteran did not report having a corneal ulcer of the right eye during service, nor did he report having any disease of the right eye during service.

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for a right eye disorder (other than the right eye round corneal scar attributable to metallic fragment injury in service).  The Veteran's current eye symptoms and diagnoses are not due to disease or injury incurred in service, and no congenital defect of the right eye shown during this appeal was subjected to a superimposed disease or injury in service resulting in additional disability.

The Board accepts that the Veteran is competent to report his vision symptoms and treatment.  Jandreau and Davidson, supra.  However, to the extent that he reports having additional disability due to superimposed disease or injury in service, the Board finds that he is not competent to provide such an opinion as this opinion is not susceptible to lay observation, unlike a broken leg.  Congenital or developmental defects, like hyperopia, astigmatism, and presbyopia "are not diseases or injuries within the meaning of applicable legislation."  Quirin v. Shinseki, 22 Vet.App. 390, 394 (2009) (quoting 38 C.F.R. § 3.303(c)).  Also, to the extent that the Veteran suggests that his ameboid shaped corneal scar is related to service or an incident of service, the Board finds that he is not credible in view of his history of post service corneal ulceration with subsequent scarring and the medical findings showing that the ameboid corneal scar of the right eye was consistent with the Veteran's history of corneal ulceration after service discharge.

The Board assigns greater probative value to the May 2013 VA examination and medical opinion, which indicated that the Veteran's 1962 right eye ulcer was due to herpes simplex keratitis infection based on the Veteran's history and the medical treatment rendered at that time.  In regards to the Veteran's refractive error of the right eye-hyperopia and astigmatism-these were described as congenital; and presbyopia was described as an age-related condition.  The examiner opined that these were less likely as not subjected to superimposed disease or injury in service. 
The Board finds that the May 2013 VA medical opinion is more probative here as it was prepared after physical examination of the Veteran and review of the claims files.  Also, it is highly probative in this case as the opinion was rendered by a qualified medical eye professional and contains a clear explanation for the conclusions reached based on the Veteran's history, past medical treatment, current exam findings, and the examiner's medical knowledge concerning the anatomy and pathologies of the eye.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The Board notes that the record does not include a favorable medical opinion to weigh against this negative medical opinion.

Accordingly, the weight of the evidence is against the claim. As the evidence of record is not roughly in equipoise, there is no doubt to resolve.  38 U.S.C.A. § 5107 (West 2002); Gilbert, supra.


ORDER

Service connection for a right eye disorder (other than right eye corneal scar).




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs