Citation Nr: 1328970 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 05-40 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for residuals of a back injury. 2. Entitlement to service connection for residuals of burns to the face and eyes. 3. Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from February 1976 to February 1979, with subsequent service in the Army National Guard with periods of active duty for training. This matter is before the Board of Veteran's Appeals (Board) on appeal of an April 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision the RO in pertinent part (1) declined to reopen a claim for service connection for residuals, splash burns of face and eyes; (2) purported to reopen and then deny a previously denied a claim for service connection for a back condition; and (3) denied service connection for depression. In May 2008 the Board remanded the case for further development. The Veteran testified before the undersigned Veterans Law Judge in August 2008. In an October 2009 decision the Board reopened the claims for service connection for (1) residuals of a back injury and (2) residuals of burns to the face and eyes; and remanded the case for further development. In September 2011 and February 2013 the Board remanded the case for further development as to the three issues on appeal. The additional development has been completed. Stegall v. West, 11 Vet. App. 268 (1998). In a March 2009 rating decision the RO granted service connection for a burn scar, right upper chest, which had been claimed on appeal as residual burns of the right upper chest. That claim, based on the same predicate etiology as the claimed residuals of burns to the face and eyes, is thus no longer before the Board on appeal. The issue of entitlement to service connection for a psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Residuals of a back injury were not affirmatively shown to have had onset during service; arthritis was not manifested to a compensable degree within one year from the date of separation from service; and chronic back symptomatology first shown after service beyond the one year presumptive period for arthritis as a chronic disease, is unrelated to an injury, disease, or event, in service. 2. Residuals of burns to the face and eyes were not affirmatively shown to have had onset during service; chronic eye symptomatology first shown after service is unrelated to an injury, disease, or event, in service; and a facial scar or other residuals of burns to the face are not shown. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a back injury have not been met. 38 U.S.C.A. §§ 1131, 1137, 5107(b) West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection for residuals of burns to the face and eyes have not been met. 38 U.S.C.A. §§ 1131, 1137, 5107(b) West 2002); 38 C.F.R. § 3.303 (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. Upon receipt of a complete or substantially complete application, VA has a duty to notify and to assist a claimant in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters dated September 2004, February 2007, and May 2011 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claims were subsequently readjudicated, most recently in a September 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran's service treatment records, VA records, and private medical records have been obtained. Social Security records have been obtained. The Veteran was afforded VA examinations in December 2008, January 2009, November 2011, March 2013, and April 2013. As the examination reports are based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examination reports are adequate to decide the claims. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (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). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSION Principles of Service Connection Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131. To establish direct service connection, the evidence must show: (1) a current disability; (2) an in-service incurrence of the disability; and (3) a causal relationship between the disability and service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. 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 a Veteran who served 90 days or more of continuous, active service, and a chronic disease, such as arthritis, becomes manifest to a degree of 10 percent within one year from date of separation from service, the disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1137; 38 C.F.R. §§ 3.307, 3.309. 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). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a 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). Service connection may also be granted on a secondary basis by aggravation, that is, for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease and not due to the natural progress of the nonservice-connected disease. For secondary service connection, the evidence must show: (1) a current disability; (2) a service-connected disability; and (3) a nexus of a connection between the service-connected disability and the current nonservice-connected disability. Congenital or developmental defects are not considered diseases or injuries for VA compensation purposes. 38 C.F.R. § 3.303(c). As such, a congenital or developmental defect generally may not be service connected as a matter of law; however, service connection may be granted if such a defect is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability. See VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996); Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004). Evidentiary Standards VA must give due consideration to all pertinent medical and lay 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 medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination 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). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). 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). Residuals of a Back Injury The Veteran claims service connection for residuals of back injuries in service. He reported in an April 2004 statement that due to a motorcycle accident in July 1977, he developed joint problems that continued throughout service. The reports of the enlistment examination and report of medical history show that the Veteran did not report recurrent back pain or other back problem, and on examination, the evaluation of the spine and other musculoskeletal system was normal. The service treatment records show that the Veteran was seen in July 1977 after involvement in a motorcycle accident. The treatment notes included associated aches. The report of X-ray, including the skull and lumbar spine, was read as normal. The Veteran was seen in September 1978 for complaints of lower back pain for three weeks. He stated that he had had a cold for four weeks and that when he coughed his back hurt. The impression was bronchitis. After service, private medical records in August 1979 show that the Veteran complained of problems with his back for about five years. X-rays showed slight accentuation of the lumbar lordosis and six lumbar vertebrae with incomplete fusion. The diagnosis was muscular back pain. In July 1985, during a period of active duty for training, the Veteran was seen for back complaints. He stated that he injured himself while lifting a turkey out of the oven while preparing a meal in the mess hall. He complained of back pain and numbness in the right leg. History included a back injury nine years earlier. The assessment was back strain. Private treatment records show that the Veteran was seen in December 1991 for complaints of acute back strain while working. A report of VA hospitalization from April to May 1992 for an unrelated condition shows that the Veteran began complaining of back pain. X-rays were normal. The Veteran was treated with pain medication and he had no further complications. In June 1993, on a private consultation, the findings were mild scoliosis and spina bifida occulta. VA records show that in September 1993 the Veteran complained of low back pain for several years. The diagnosis was low back pain and spondylolysis at L6. In January 1994, the Veteran of low back pain and stiffness. The assessment was chronic low back pain. In June 1994, the Veteran complained of low back pain of over 15 years' duration and that in 1988 he jumped from a cliff and landed on a rock submerged in water. In April 1995, a private MRI of the lumbar spine was read as normal. In August 1995, the impression was exaggerated lumbar curvature with scoliosis and no obvious arthritis or post traumatic changes in the lumbar spine by X-ray. Also, there was a long-standing history of lumbar pain that was made more acutely worse five or six years earlier when the Veteran landed on his buttocks after a 40 foot fall. It was noted that the Veteran aggravated the pain earlier in the year after a twisting-type injury while wrestling with his son. In August 1995 the Veteran had surgical treatment for a tethered spinal cord release) and the diagnosis was traumatic filum terminale syndrome (tethered spinal cord). The operative report included the statement that the Veteran injured the filum terminale, causing a tethered spinal cord, in an accident when the Veteran jumped off a 40 foot cliff into a lake and landed on a submerged boulder. Private treatment records show that when seen in June 1997 for rheumatology, the then 38 year old Veteran reported that at age 28, he had jumped off a 40 foot cliff into water, landing on his buttocks and he suffered acute back pain and numbness in legs. He had surgery in August 1995 with no relief of pain. He currently had constant pain. In December 1998, VA records included assessments of psoriatic arthritis and chronic low back pain. X-rays showed no arthritis or sacroiliitis. In April 1999 there was a long-standing history of low back pain secondary to spondylitis and psoriatic arthritis. In April 2004, on a rheumatology consultation, Daksha P. Mehta, M.D., stated that he had seen the Veteran for evaluation and management of the Veteran's arthritis and that the symptoms had been ongoing for eight to ten years, but were worse over the past few years. Dr. Mehta stated that the Veteran did not have signs of inflammatory arthropathy, but the Veteran had evidence of osteoporosis that was most likely steroid induced. In April 2004 in a statement, Cassandra Stephens, M.D., stated that she had reviewed the Veteran's service medical records and found that the Veteran entered the Army without evidence of any musculoskeletal problems and that he went to sick call several times complaining of musculoskeletal problems. She stated that she found the records were very sketchy and did not support a finding that the Veteran had any pre-existing problems before service. On that basis she expressed the opinion that it was as likely as not that the Veteran's musculoskeletal problems were directly related to service. In May 2004 in a statement, Dr. Stephens stated she treated the Veteran for psoriatic arthritis, osteoarthritis, osteoporosis, and allergies. In September 2004 she stated that the Veteran had rheumatoid arthritis, osteoarthritis, psoriasis, degenerative arthritis of the spine, and osteoporosis. In December 2008 on VA examination, after review of the Veteran's file, the VA examiner expressed the opinion that the lumbar spine condition was less likely as not (less than 50/50 probability) caused by or a result of military service. The VA examiner explained that the Veteran had an episode of low back pain during service and there was no evidence that would support service connection. In November 2011 on VA examination, the diagnosis was low back degenerative disc disease. The Veteran stated that in service he had a motorcycle accident that caused back problems with repeated strains in service. The VA examiner expressed the opinion that the back condition was less likely than not the result of service. The VA examiner explained that there was no competent evidence of disease or injury in service or of continuity of symptoms after service. The VA examiner stated that there was one entry in the service treatment records showing back complaints when breathing, in conjunction with a chest X-ray showing pneumonitis and that there were no further back complaints. In March 2013 on VA examination, the diagnosis was lumbar degeneration. The VA examiner expressed the opinion that the back condition was less likely than not incurred in or caused by an in-service injury. The VA examiner explained that the record showed two separate complaints of back pain associated with separate injuries in July 1977 and in September 1978. The VA examiner stated that each time the condition was acute and transitory, as evidenced by the absence of additional documented complaints of pain or treatment. The VA examiner stated that the back injury in July 1985 was also acute and transitory as there was no evidence suggesting a chronic pattern of back symptoms. The VA examiner stated that there were clearly documented additional injuries after service resulting in a severe back injury 1989 or 1990, resulted in a tethered spinal cord injury. Based on the foregoing, the VA examiner expressed the opinion that the current back condition was less likely than not a progression of the symptoms in service or of the July 1985 injury during active duty for training and that it is a new and separate non-service related injury and condition. Analysis Entitlement to service connection is considered under various provisions of 38 C.F.R. § 3.303. 38 C.F.R. § 3.303(a) (Affirmatively Shown to have been Present in Service) The Veteran was in a motorcycle accident in July 1997 and X-rays of the lumbar spine were normal. In September 1978 and in July 1985 the Veteran complained of low back pain and lumbosacral strain was assessed in July 1985. This is satisfactory evidence that the Veteran experienced an injury during active service or active duty for training, which answers the question of what happened, but does not answer the questions of whether there is a current disability with an etiological nexus to service. On the basis of the service treatment records alone, however, chronic residuals of a back injury was not affirmatively shown to have been present in service and service connection under 38 U.S.C.A. § 1131 and 38 C.F.R. § 3.303(a) is not established. The principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) must be applied to determine entitlement to service connection on that basis. 38 C.F.R. § 3.303(b) (Chronicity) The Veteran is competent to describe symptoms of back pain during service, which is within the realm of the Veteran's personal experience, and his statements and testimony are credible. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). For the showing of a chronic disability in service there is required a combination of manifestations sufficient to identify the disability and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). As the service treatment records lack the documentation of the combination of manifestations sufficient to identify a chronic low back disability or sufficient observation to establish chronicity during service, on the basis of one or two episodes of complaints in service, not subsequently duplicated later, and one episode six years later during active duty for training, chronicity in service is not adequately supported. Service connection may still be established by showing a continuity of symptomatology after service under 38 C.F.R. § 3.303(b). 38 C.F.R. § 3.303(b) (Continuity of Symptomatology) Establishing service connection based on continuity of symptoms requires (1) that a condition was 'noted' during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. The Veteran is competent to describe low back pain during service and since service, which is evidence of continuity. But as it does not necessarily follow that there is a relationship between any current low back disability and the postservice symptomatology. Medical evidence is required to demonstrate such a relationship, unless such a relationship is one to which the Veteran as a lay person is competent to make. To the extent the Veteran has stated that his low back symptoms are a continuation of a current low back disability that began in service, the Veteran's lay statements are an inference based on facts and the statements are the Veteran's opinion rather than a statement of fact. When the determinative issue involves etiology, that is, a causal relationship between the claimed low back disorder and events in service, the "nexus" requirement, the Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A simple medical condition is one that does not require that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159; see Layno, at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses). A low back disability such as degenerative disc disease is not simple medical condition, because the disability cannot be identified or diagnosed by the Veteran as a lay person based on mere personal observation, that is, without specialized education, training, or experience as a medical professional. 38 C.F.R. § 3.159; Layno, at 469-71. Also the current back disability is not a type of condition under case law that has been found to be capable of lay observation. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation; see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); and see Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer). Applying the guidance of current case law, the current back disability is more analogous to an internal process such as rheumatic fever than either flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg. For this reason, glycosuria is not a type of condition under case law that has been found to be capable of lay observation. As the current back disability is not the type of condition that can be identified based on personal observation either as a simple medical condition under Jandreau, or by case law, any inference based on what is not personally observable cannot be competent lay evidence. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus of the claimed disability and the postservice symptomatology the Veteran avers. Since the Veteran's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim. As the evidence is not admissible, the Board need not reach the credibility of the evidence. Although service connection is not established either by chronicity or by continuity of symptomatology on the basis of lay evidence under 38 C.F.R. § 3.303(b), service connection may still be established based on an initial diagnosis after service, when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. 38 C.F.R. § 3.303(d). 38 C.F.R. § 3.303(d) (Post Service Diagnosis) Where, as here, there is a question of the presence or a diagnosis of a disability, which is not capable of lay observation as a simple medical condition under Jandreau or the type of a medical condition capable of lay observation by case law, to the extent the Veteran's lay evidence is offered as proof of the presence of the disability in service, the Veteran's lay evidence is not competent evidence, and the lay evidence is not admissible as evidence and cannot be considered as competent evidence favorable to the claim. However, the Veteran as a lay person is competent to describe a contemporaneous medical diagnosis or symptoms that later supports a diagnosis by a medical professional. Jandreau, at 1377. On the question of a diagnosis after service, low back symptomatology is variously diagnosed, and was e first documented in the 1990s, over a decade after service, and well beyond the one-year presumptive period for arthritis as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309. As for spina bifida occulta, the condition is congenital condition and there is no evidence of aggravation of the conditions in service. The question of whether the Veteran's symptoms support a diagnosis by a medical professional is addressed under Medical Evidence. As the Veteran's lay evidence is not competent evidence on the questions of either a diagnosis or of a causal relationship or nexus between the current low back symptomatology and injury in service, that is, an opinion on causation, then medical evidence is required to support the claim. Medical Evidence The competent medical evidence of record consists of the reports by VA and private health care providers, who are qualified through education, training, or experience to offer a diagnosis and a medical opinion. 38 C.F.R. § 3.159(Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.). With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008). Considering the merits of the analysis and the details of the opinions, which were based on medical analysis applied to the significant facts of case, the Board finds that the opinions of the VA examiners in December 2008 and in November 2011 are persuasive medical evidence against the claim on the question of continuity under 38 C.F.R. § 3.303(b) or based on initial diagnosis after service under 38 C.F.R. § 3.303(d). The opinions are consistent with the rest of the evidence on file showing that the Veteran's low back symptomatology began a number of years after active service and after the period of active duty for training in July 1985 when the Veterans had a lifting injury, resulting in back strain. The VA opinions outweigh the opinion of Dr. Stephens, as her opinion was based on a premise that the Veteran complained of musculoskeletal problems in service. The evidence shows that the Veteran suffered a back injury after service when he jumped from a cliff into water and landed on submerged rock, which resulted in back surgery and it was after the surgery that the back complaints became worse. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply, and service connection is not warranted. 38 U.S.C.A. § 5107(b). Residuals of Burns to the Face and Eyes The Veteran claims service connection for residuals of burns to the face and eyes in service. In an April 2004 statement the Veteran stated that he had residuals of burns to the face and eyes resulting from a car radiator that blow up into his face and eyes. The service treatment records show that the Veteran was admitted for treatment on March 13, 1978, for facial and neck burns after a radiator blow up. The initial diagnosis was multiple burns to the upper extremities. The Veteran had bullae on the left shoulder, right hand, and face. The diagnosis was first and second degree burns of the face and neck. In April 1978, the Veteran was discharged to duty. In January 1979 the Veteran was seen for burns to the face and eyes occurring, after an emersion heater exploded. Vision was 10/25 bilaterally and the anterior chambers were clear. The assessment was flash burn to eyes with loss of vision. On the next day, the Veteran's vision was 20/40 bilaterally. The disc, fundi, and anterior chambers were clear without lesions. The assessment was iatrogenic induced mydriasis (dilation of the pupil) by atropine medication. After service in August 2006 VA records ocular history included steroid use and meibomian gland dysfunction or dry eyes. In December 2008 on VA examination, the VA examiner expressed the opinion that it was less likely as not (less than 50/50 probability), that any current skin condition of the face was caused by or a result of the burns in service. In January 2009 on VA examination for scars, there was no physical or visual evidence of any other burn areas on the face. In April 2013 on VA examination for the eyes, the VA examiner noted a history of thermal injury to eyes in 1979 causing a flash burn to the face and eyes. On examination, there were no abnormal ocular findings, except for presbyopia. The diagnosis was of a history of eye trauma and no ocular sequelae associated with the diagnosis. The VA examiner expressed the opinion that the Veteran's dry eyes were less likely than not a result of the trauma in January 1979. Analysis Facial Scars Although the Veteran is competent to describe a scar, which is capable of lay observation, there is no post-service evidence of residuals of burns to the face. The Board finds that the reports of the VA examinations which contain no objective evidence of residuals of burns to the face outweigh the Veteran's description of any residuals of burns to the face. As there is no objective evidence of any residuals of burns to the face, the preponderance of the evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply, and service connection is not warranted for residuals of burns to the face. 38 U.S.C.A. § 5107(b). Ocular Scars In service in January 1979 the Veteran suffered a flash burn to the eyes. This is satisfactory evidence that the Veteran experienced an injury during service, which answers the question of what happened; but does not answer the questions of whether there is a current disability with an etiological nexus to service. On the basis of the service treatment records alone, residuals of a burn injury to the eyes were not affirmatively shown to have been present in service and service connection under 38 U.S.C.A. § 1131 and 38 C.F.R. § 3.303(a) is not established. Also residuals of burns are not listed a "chronic" disability under 38 C.F.R. § 3.309(a), and chronicity and continuity of symptomatology do not apply. See Walker v. Shinseki, 708 F.3d 1331, 1138-40 (Fed. Cir. 2013) (chronicity and continuity of symptomatology apply to a "chronic" disease listed under 38 C.F.R. § 3.309(a) and "noted" in service). The Veteran is competent to describe scars, which are simple medical conditions that are capable of lay observation, which is evidence favorable to the claim. And service connection may be established based on an initial diagnosis after service, when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. 38 C.F.R. § 3.303(d). There is also medical evidence, which consists of the reports by VA health care providers, who are qualified through education, training, or experience to offer a diagnosis and a medical opinion. 38 C.F.R. § 3.159(Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.). With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008). Considering the merits of the analysis and the details of the opinions, which were based on medical analysis applied to the significant facts of case, the Board finds that the opinion of the VA examiners in April 2013 is persuasive medical evidence against the claim on the question of a current disability. The opinion is consistent with the rest of the evidence of record and the VA examiner found no eye problems other than dry eye and presbyopia, which were not associated with a thermal burn in service. Also refractive error such as hyperopia, astigmatism, and presbyopia, are not disabilities for the purpose of VA disability compensation. 38 C.F.R. § 3.303. There are no countervailing medical opinions. The Board finds that the VA medical opinion outweighs the Veteran's lay statements. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply, and service connection is not warranted. 38 U.S.C.A. § 5107(b). ORDER Service connection for residuals of a back injury is denied. Service connection for residuals of burns to the face and eyes is denied. REMAND On the claim of service connection for a psychiatric disorder, in December 2008 on VA examination, the diagnosed was major depressive disorder. The examiner did not offer an opinion as to whether the disorder was related to any condition associated with service, because at that time there was no adjudicated service-connected disability. In March 2009, the RO granted service connection for a burn scar of the right upper chest. In November 2011 on VA examination, there was no diagnosis of a current psychiatric disorder. As the evidence is insufficient to decide the claim on the applicable theories of service connection, the case is REMANDED for the following action: 1. Afford the Veteran a VA psychiatric examination to determine whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that any present psychiatric disorder is caused by or aggravated by service-connected burn scar of the right upper chest; or is otherwise etiologically to an injury or event in service? In formulating the opinion, the term "aggravation" means a permanent increase in the psychiatric disorder, that is, an irreversible worsening of the mental disorder beyond the expected clinical course due to the service-connected burn scar of the right upper chest. The Veteran's file must be made available to the VA examiner for review. 2. After the above development, adjudicate the claim, including the theory of secondary service connection. If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs