Citation Nr: 1327876 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 10-04 285A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left eye disorder to include posterior vitreous detachment, dry eyes, and vision loss (claimed as a left eye injury). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1943 to February 1946. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefit sought on appeal. The Veteran filed a Notice of Disagreement (NOD) in June 2008. The RO issued a Statement of the Case (SOC) in February 2010. In February 2010, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal of this issue. In March 2011, the Veteran testified at a Travel Board hearing. A copy of the hearing transcript has been included in the claims file. In May 2011, the Board remanded the left eye claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. Upon remand, the Veterans Law Judge (VLJ) who conducted the March 2011 Board hearing retired. In October 2012, the Board sent the Veteran a letter informing him of this and indicating he could have another Board hearing with another VLJ who would ultimately decide this appeal. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. §§ 20.707, 20.717 (2012). The Veteran did not respond to this letter. Thus, the Board will decide his case based on the evidence currently of record. Id. In January 2013, the Board again remanded this appeal to the RO via the AMC in Washington, DC, for further development. The appeal has now been returned to the Board for appellate disposition. The Veteran's Virtual VA records were also reviewed and considered in preparing this decision. The issues of: (1) entitlement to service connection for a disorder associated with an inability to urinate; and, (2) whether new and material evidence has been received to reopen a claim of service connection for emphysema, have been raised by the record in a June 2011 statement by the Veteran, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are 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 current left eye disorder, to include posterior vitreous detachment, dry eyes, and vision loss, is not shown to be causally or etiologically related to his active military service, to include his in-service left eye injury. CONCLUSION OF LAW The criteria for establishing service connection for a left eye disorder, to include posterior vitreous detachment, dry eyes, and vision loss (claimed as a left eye injury), are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. VA's Duties to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty-to-assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in September 2007 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letter also provided the Veteran with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). The letter was provided prior to the initial RO adjudication of his claim. Accordingly, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. For all of these reasons, the Board concludes that the appeal may be adjudicated without a remand for further notification. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His STRs and post-service treatment records have been obtained. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disorder currently on appeal. In a September 2010 statement, he indicated that he was currently on SSA disability benefits for his hearing loss and tinnitus, and not his left eye disorder. Therefore, the Board does not need to make an attempt to obtain these records. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Veteran participated in VA examinations in December 2009, April 2012, and January 2013, the results of which have been included in the claims file for review. The examinations involved reviews of the claims file and thorough examinations of the Veteran. The January 2013 VA examination also included a medical opinion that was supported by sufficient rationale. Therefore, the Board finds that the VA examinations and opinion are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. Furthermore, the Veteran was afforded a Board hearing in March 2011. A Board member has two duties at a hearing: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim, and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See 38 C.F.R. § 3.103(c)(2) (2012); Procopio v. Shinseki, No. 11-1253, 2012 WL 4882287 at 3 (Vet. App. Oct. 16, 2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). Here, during the Board hearing, the VLJ specifically noted the issue as entitlement to service connection for a left eye injury. See Board hearing transcript, page 2. The Veteran was assisted at the hearing by an accredited representative from The American Legion. Id. The representative asked the Veteran specific questions regarding the elements of service connection that were necessary to substantiate the claim for benefits - namely, a current disorder, an in-service incurrence, and a nexus opinion. See Board hearing transcript, pages 3-12. The representative then asked questions to ascertain whether the Veteran had submitted evidence in support of this claim. See Board hearing transcript, pages 8-9, 12. In addition, the representative sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Id. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with the hearing requirements, nor identified any prejudice in the conduct of the Board hearing. By contrast, 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 for benefits. As such, the Board finds that the VLJ complied with the aforementioned hearing duties, and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Board is also satisfied as to substantial compliance with its May 2011 and January 2013 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). These remands included scheduling the Veteran for additional VA examinations and medical opinions, which he had in April 2012 and January 2013. These remands also directed the AMC to obtain the Veteran's recent VA Medical Center (VAMC) treatment records. These records were obtained and associated with the claims file. Finally, the remands included readjudicating the claim, which was accomplished in the September 2012 and March 2013 Supplemental SOCs (SSOCs). Thus, the Board finds that there has been substantial compliance with its remand directives. Id. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Service Connection The Veteran seeks service connection for a left eye injury, claimed as due to an in-service facial trauma. To establish direct service connection, the record must contain: (1) medical evidence of a current disorder; (2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease; and, (3) medical evidence of a nexus between the current disorder and the in-service disease or injury. In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. §§ 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. As noted above, the first element of service connection requires medical evidence of a current disorder. Here, a current diagnosis has been established. Just prior to filing his service connection claim in August 2007, a VA treatment record dated in May 2007 diagnosed the Veteran with posterior vitreous detachment (PVD) of both eyes (OU). The Veteran was then afforded a VA eye examination in December 2009. The examiner concluded that there was no evidence of eye injury or trauma upon examination. However, the examiner indicated that the Veteran did suffer from dry eyes and decreased vision in his left eye. Based on the Veteran's lay statements of left eye problems, the Board remanded the claim for an additional VA examination to be obtained. In April 2012, the Veteran was afforded a VA examination. The examiner determined that the Veteran did not have a current eye disability. However, the examiner noted that the Veteran did have vision problems in his left eye, correctable by glasses. Thus, the aforementioned evidence establishes that the Veteran has a current left eye diagnosis, to include vision loss, dry eyes, and PVD. As stated above, the second element of service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. Here, the Veteran's statements and Board hearing testimony reflect his contention that he sustained facial injuries during his in-service invasion of Iwo Jima. The Veteran has indicated that a soldier struck him in the face with a rifle and knocked out many of his teeth. This incident is not documented in the Veteran's STRs. His STRs do not contain any reference to a left eye injury or problems with his left eye. However, the Veteran's military separation examination, in addition to the December 2009 VA examination, reflects a diagnosis of loss of teeth and dentures. These findings were not reported on the Veteran's entrance into the military. Thus, the Board finds the Veteran's statements regarding the facial trauma to be both competent and credible, as they are supported by the medical evidence. Therefore, the Board concedes that the in-service facial trauma occurred. The first post-service relevant complaint of a left eye disorder was in a VAMC treatment record dated in May 2007, in which the Veteran was diagnosed with PVD of his left eye. Again, the Veteran's active duty ended in 1946. This lengthy period without medical complaint of the disorder weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (holding that service incurrence may be rebutted by the absence of medical treatment of the claimed disorder for many years after the military discharge). As previously mentioned, the third element of service connection requires medical evidence of a nexus between the current disorder and the in-service disease or injury. Here, the only medical nexus opinion of record is negative. Specifically, the Veteran was afforded a VA examination in January 2013. At the examination, the Veteran told the examiner that he was experiencing decreased vision in the left eye due to trauma caused by being hit by a rifle butt to his face in February of 1945. The Veteran denied direct trauma to either eye. Following a review of the claims file and a physical examination of the Veteran, the VA examiner determined that the Veteran's current left eye disorder, to include vision loss, dry eyes, and PVD, is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, to include the Veteran's facial trauma in 1945. The examiner reasoned that the Veteran had fluctuating vision with best correction of 20/40 in the right eye and 20/50 in the left eye. The examiner stated that these results were reduced from the Veteran's visual acuity on November 2012, when his right eye was 20/25 and his left eye was 20/40. The examiner also pointed out that in 2011, the Veteran's best corrected visual acuity (BCVA) was 20/25 in his right eye and 20/20 (normal) in his left eye. At the examination, the examiner stated that a retinal acuity meter was attempted with very variable responses, with the best being 20/40 in the right eye and 20/50 in the left eye. The examiner reasoned that the Veteran was capable of near-perfect visual acuity as recently as 2011. The examiner found that this proved that the Veteran's reduced vision was not caused by an event that occurred in 1945. The examiner further reasoned that the Veteran's claim of a PVD is not valid, as no PVD was found today, or noted in previous examinations. The examiner also found that the Veteran does have dry eyes, but that this disorder is very common in the elderly and is not caused by previous facial trauma. The VA examiner clearly reviewed the STRs and other evidence in the claims folder. He provided an opinion that is supported by and consistent with the evidence of record. He provided an alternative theory to address the etiology of the current left eye disorder -namely, the Veteran's age. There is no positive evidence to the contrary of this opinion in the claims file. The Veteran was afforded several VA examinations, but only the January 2013 VA examiner provided a medical opinion. The treatment records do not provide contrary evidence. For all of these reasons, service connection is not warranted. Furthermore, the Board notes the Veteran's contentions of left eye symptoms both during and since his active military service. However, the Veteran is not entitled to service connection for this claim based on continuity of symptomatology since his military discharge because he does not have a current chronic diagnosis, as stated under the laws and regulations. His current left eye diagnoses of PVD, dry eyes, and vision loss are not considered chronic diseases under the statute. Therefore, presumptive service connection, and service connection based on continuity of symptomatology, is not warranted for this claim. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307(a), 3.309(a) (2012); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disorders explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). In reaching this decision, the Board has considered the Veteran's arguments in support of his claim. The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., an injury during his active military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), and in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a disorder when: (1) a layperson is competent to identify the medical disorder (noting that sometimes the layperson will be competent to identify the disorder where the disorder 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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Id. Although the Veteran is competent to report that he injured his left eye during his active military service, which resulted in his current left eye disorder, the Board must still weigh his lay statements against the medical evidence of record. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In making this credibility determination, the Board does not find the Veteran's statements concerning the etiology of the left eye disorder to be credible, since his STRs make no reference to problems or treatment for the Veteran's left eye. Additionally, the first documentation of left eye symptoms in the record is not until May 2007, more than sixty years after his separation from the active duty. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996); see also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). It is important to point out that the Board does not find that the Veteran's lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson, 581 F.3d at 1313, quoting Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Rather, the Veteran's statements are found to be incredible because they are inconsistent with the evidence of record, which fails to show left eye symptoms or treatment during his active military service, which does not show a left eye disorder until over six decades after his separation from the active duty in 1946, and which contains only a negative nexus opinion. For the reasons set forth above, the Board finds that the Veteran's lay statements that his left eye symptoms have been present since his active military service are not credible. Therefore, these statements do not warrant a grant of service connection or a determination that further development of the medical evidence is required. All other evidence of record, aside from the Veteran's statements in support of this current claim, is unfavorable to the claim for service connection for a left eye disorder. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim, and thus that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim of entitlement to service connection for a left eye disorder, to include PVD, dry eyes, and vision loss, is not warranted. ORDER The claim for service connection for a left eye disorder, to include PVD, dry eyes, and vision loss (claimed as a left eye injury), is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs