Citation Nr: 1328901 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 08-19 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a disability of the eyes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from October 1956 to October 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in November 2006 and November 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied service connection for residuals of an injury to the eyes. In October 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. for further development and it has now been returned to the Board. In April 2012, the Veteran submitted additional medical evidence in the form of an examination report from Boling Vision Center, but has waived RO review. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 eye disabilities did not have onset in service and were not caused or permanently aggravated by his active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a disability of the eyes have not been met. 38 U.S.C.A. §§ 101, 1112, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-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. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, 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. 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 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant 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. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see 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, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic, the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). The Veteran has not been diagnosed with any disability of the eyes that is recognized as a chronic disability by 38 C.F.R. § 3.309(a) and therefore the theory of continuity of symptomatology does not apply. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). As an initial matter, the National Personnel Records Center (NPRC) has indicated that the Veteran's service treatment records were most likely destroyed in the July 1973 fire that occurred at the NPRC in St. Louis, Missouri. The Board notes that when service medical records are lost or missing, VA has a heightened duty to assist in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In a July 2006 statement, the Veteran related that during active service a fire extinguisher discharged directly into his eyes. He was told at the time by medical personnel that his eyes were badly burned. His eyes were flushed out and bandaged for several days. He stated that his vision was initially impaired but that his "eyes got better" after a week. Although this incident cannot be verified due to the fact that the Veteran's service treatment records were destroyed, the Board finds it to be credible given the specific details the Veteran provided. The Veteran also stated that when he was first seen in the eye clinic at VA in April 2003, he was diagnosed with glaucoma and several other conditions, including cataracts and a "tear or thin spot on [an] optic nerve." According to the Veteran, the treating provider asked at this time whether he had ever sustained trauma to one or both eyes. When the Veteran related the incident of being sprayed in the eyes by a fire extinguisher during active service, the treating provider stated that this injury was possibly related to one of his current eye disorders. Unfortunately, this account is not supported by the available VA treatment records. These records show that the Veteran has been diagnosed with and treated for a number of eye conditions, including primary open-angle glaucoma, mild cataracts, meibomian gland dysfunction (MGD), retinal lattice degeneration, a history of mild nonproliferative diabetic retinopathy, and an atypical papilloma on the left lower lid near the nasal margin, and they document his accounts of an in-service accident in which a fire extinguisher was discharged into his eyes. However, none of the Veteran's VA treatment providers has opined that the Veteran's current disabilities of the eye are related to his military service, to include his in-service accident. In November 2011, the Veteran was afforded a VA examination of his eyes by a VA optometrist. At his VA examination, the Veteran again reported that while in service, a fire extinguisher accidently discharged into his face and recounted that his eyes immediately started burning. The Veteran reported that his eyes were flushed, patched, and treated with eye drops. He received frequent follow-up examinations of his eyes and they healed over a period of approximately three weeks; however, he claimed to experience occasional burning and sensitivity to bright light. The Veteran was diagnosed with diabetes without retinopathy, nuclear sclerosis and cortical spokes cataracts of both eyes, retinal lattice degeneration of the right eye, open angle glaucoma of both eyes, and eyelid papillomas. The examiner explained that none of these disabilities would be caused by being sprayed in the eyes by a chemical and concluded that none of the Veteran's current eye conditions related to his in-service accident. A March 2012 examination report from Boling Vision Center notes the Veteran's account of an in-service trauma to his eyes from a fire extinguisher, as well as the Veteran's claim that he has an optic nerve condition due to this accident, but does not specifically relate any of the Veteran's current conditions to this injury. Based on all of the above evidence, the Board finds that entitlement to service connection for a disability of the eyes must be denied. While the Board has accepted as competent and credible the Veteran's testimony that during service, a fire extinguisher accidently discharged in his face and eyes, there is no evidence to support the Veteran's claims that this in-service injury caused any of his current eye disabilities or, stated another way, that he presently suffers from any residual injury related to his in-service accident. Per the Veteran's own testimony, he received prompt medical treatment following his accident and recovered fully within one to three weeks. Following his separation from service in 1960, there is no evidence of treatment for an eye disability for more than four decades after service, which supports the Veteran's testimony that he recovered from his accident. The Veteran was afforded a VA examination in November 2011 by a VA optometrist, who opined that none of the Veteran's many current eye conditions are consistent with a chemical burn injury and they were less likely than not caused the Veteran's the Veteran's in-service injury. There is no contrary medical opinion of record. While the Veteran's VA treatment providers and private treatment provider at Boling Vision Center have acknowledged the Veteran's reported medical history of an in-service eye injury, they have not opined that this injury caused the Veteran's current eye disabilities. The Board acknowledges that the Veteran sincerely believes that he has some current disability of the eyes caused by his in-service injury; however, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the question of whether the Veteran currently has an eye disability due to being accidently sprayed in the eyes with a fire extinguisher in service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether his current eye disabilities were caused by the in-service incident, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. The Board requested that a specialist trained in diagnosing and treating conditions of the eye examine the Veteran and comment on the likelihood of a relationship between the Veteran's current eye disabilities and his military service. A VA optometrist unequivocally concluded that the Veteran's current eye problems were not caused by his in-service injury. As there is no contrary medical evidence, the Board must defer to the medical expert. For all the above reasons, entitlement to service connection for a disability of the eyes is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied by letters sent to the Veteran in July 2006 and August 2007. These letters informed the Veteran of what evidence was required to substantiate his claims, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. 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 medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran submitted private records from Boling Vision Center. The appellant was afforded a VA medical examination in November 2011. The examination is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); 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 disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The Board remanded this case in October 2011 to obtain additional VA treatment records and to afford the Veteran a VA medical examination. The action specified in the October 2011 remand was completed, there was substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for a disability of the eyes is denied. ____________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs