Citation Nr: 1329502 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 11-11 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a right eye disability. ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran had active service from August 1943 to January 1946. His awards and decorations include the Bronze Star Medal, the Purple Heart, and Combat Infantryman Badge, which are indicative of combat service. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The record shows that the Veteran requested a hearing before a member of the Board via videoconference from the RO. VA notified the Veteran that he was scheduled for a January 2013 hearing. He failed to report for that hearing. He has not submitted evidence showing good cause for his failure to appear for the scheduled hearing. Also, there has been no new hearing request from the Veteran. Therefore, the Board finds that VA has fully discharged its duty to provide the Veteran with a hearing if so desired. 38 C.F.R. § 20.701(c) (after a hearing date has become fixed, an extension of time for appearance at a hearing will be granted only for good cause). In February 2013, the Board remanded the Veteran's claim for additional development. A supplemental statement of the case was issued in July 2013 by the VA Appeals Management Center (AMC), which continued the denial of the claim. The case is once again before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT The Veteran's diagnosed eye disabilities have not been causally or etiologically linked to service by competent evidence. CONCLUSION OF LAW An eye disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Indeed, in Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet.App. 518, 519 (1996), citing Gilbert, 1 Vet.App. at 54. Furthermore, the Board notes that it has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issue adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.App. 122, 128-30 (2000). I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), 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. The law and regulations 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 VA 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. In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006) and held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, VA issued a VCAA notice letter to the Veteran in February 2009. This letter informed the Veteran of what evidence was required to substantiate his service connection claim and of his and VA's respective duties for obtaining evidence. The February 2009 letter also informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess. In short, the record indicates that the Veteran received appropriate notice pursuant to the VCAA. The VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In the present appeal, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In this capacity, the Board remanded the Veteran's claim in February 2013 in order to obtain his in-service hospitalization treatment records, ascertain whether he received any additional VA or non-VA treatment pertaining to his claimed eye disability, and schedule him for an additional VA examination. Upon review, in an April 2013 letter, the AMC requested the Veteran identify every private optometrist who has treated his right eye so that VA could obtain his treatment records. The letter also requested that the Veteran identify any VA facility that has provided treatment for his right eye. While the Veteran was informed that he could submit this information on his own, he did not identify or submit any additional records in response. The AMC also contacted the National Personnel Records Center (NPRC) and requested the Veteran's in-service hospitalization treatment records. In a March 2013 response, the NPRC indicated that these records were destroyed during a fire at its facility in 1973. While it was suggested that the AMC submit a request for sick/morning reports from the Veteran's unit, the Veteran has already submitted a September 1944 Company Morning Report which shows that he had been transferred to the 21st General Hospital. Accordingly, an additional search for sick/morning reports is not necessary. Finally, while the record reflects that the Veteran was scheduled for a VA eye examination, he failed to report for his scheduled examination. The Veteran has not provided good cause for his failure to appear or requested that the examination be rescheduled. His failure to report for a scheduled VA examination will be addressed in further detail below. Based on the above, the record indicates that the AMC has substantially complied with the Board's remand instructions. See Stegall v. West, 11 Vet.App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required). Further, the record contains the Veteran's VA and private treatment records, lay statements, VA examination reports and a morning report submitted by the Veteran. The Veteran's service treatment records have not been associated with his VA claims folder, and the NPRC indicated that these records were destroyed in a fire at the facility in 1973. The Veteran was informed that his records were destroyed in a November 2008 letter and requested to submit any records he might have. The Board is cognizant of Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999), wherein the United States Court of Appeals for the Federal Circuit elaborated on the VA's responsibility to obtain a veteran's service records. The Board finds, however, that in light of evidence that the records were destroyed in a fire there is no reasonable possibility that the missing records may be located or recovered, and thus no useful purpose would be served in remanding this matter for more development. The Veteran was provided with a VA examination in October 2009. The report of this examination reflects that the examiner recorded the Veteran's current complaints, conducted an appropriate physical examination and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and pertinent to the rating criteria. Supporting rationale was also provided for the opinion proffered. See Barr v. Nicholson, 21 Vet.App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008). As the Board will discuss in its analysis, the October 2009 VA examiner only provided an etiologic opinion as to one of the Veteran's three diagnosed eye disabilities. Accordingly, in the February 2013 remand, the Board requested that the Veteran be scheduled for an additional VA examination and the examiner indicate whether any identified eye disability is related to the Veteran's active duty service. While the record reflects that the Veteran was scheduled for a VA eye examination, the Battle Creek VA Medical Center (VAMC) documented that he failed to report for his examination. None of VA's letters to the Veteran have been returned as undeliverable, and the current address of record matches the return address of evidence the Veteran has mailed to VA. There is no evidence of record indicating that the Veteran requested that the examination be rescheduled or that he provided good cause for his failure to report. See 38 C.F.R. § 3.655 (2012). In order for VA to process claims, individuals applying for VA benefits have a responsibility to cooperate with the agency in the gathering of the evidence necessary to establish allowance of benefits. See Morris v. Derwinski, 1 Vet.App. 260, 264 (1991). Moreover, VA's duty to assist is not always a one-way street, and if a veteran wishes help, he/she cannot passively wait for it in those circumstances where he/she may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991); see also Swann v. Brown, 5 Vet.App. 229, 233 (1993). In light of the above, the Board finds that the RO/AMC has complied with the February 2013 remand instructions to the extent possible, and no further action in this regard is warranted. Because the Veteran failed to report to his VA examination, the claim is being evaluated on the basis of the evidence of record. See 38 C.F.R. § 3.655(b). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. His failure to appear for a scheduled hearing with a Veterans Law Judge, and his subsequent failure to reschedule, is being treated as a withdrawal, as detailed in the Introduction. See 38 C.F.R. § 20.704(d) (2012). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. II. Law and Regulations In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110; 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for the claimed disorder, there must be (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 current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). III. Analysis The Veteran contends that he has a right eye disability as a result of combat wounds he sustained while on active duty. As an initial matter, the Board notes that the Veteran has not been diagnosed with a chronic disease within the meaning of the general compensation law. 38 U.S.C.A. § 1101; 38 C.F.R. § 3.303(b). In a November 2009 statement, the Veteran reported that while his unit was advancing through France in September 1944, he sustained a right eye injury from incoming artillery fire. He reported that he was transferred to Naples, Italy to recuperate before rejoining his unit. The Veteran's 53-55 documents that he participated in the Rome-Arno, Southern France, Rhineland, and Central Europe Campaigns. He was awarded the Combat Infantryman Badge, Bronze Star Medal, and the Purple Heart Medal. In support of his claim, the Veteran submitted a Company Morning Report from September 1944 which reveals that he was transferred from the 7th Army to the 21st General Hospital. Based on the above, the Board finds that the provisions of 38 U.S.C.A. § 1154(b) are for application and the Veteran's statements regarding his in-service eye injury are credible, competent, and consistent with the circumstances of his combat service. As such, the Board finds that the Veteran incurred an in-service injury. The record also indicates that the Veteran has been diagnosed with exudative macular degeneration, cataracts and pseudophakia. See the October 2009 VA examination report. (Pseudophakia is a condition in which a degenerated crystalline lens is replaced by mesodermal tissue. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (30th Ed. 2003) at 1536.) As the record contains evidence of a current disability, and evidence of an in-service injury or disease, what remains to be established is whether there is a nexus between the diagnosed eye disabilities and the in-service injury. In this capacity, the Veteran was afforded a VA examination in October 2009. After conducting a clinical examination the examiner stated that the Veteran's exudative macular degeneration was the result of the normal aging process and was "not caused by [his] time in the service." While the October 2009 VA examiner diagnosed the Veteran with cataracts and pseudophakia, he did not comment on the etiology of these disabilities. In this capacity, the Board's August 2013 remand requested that the Veteran be scheduled for an additional VA examination to determine whether any identified right eye disability was related to his in-service injury. Unfortunately, the Veteran did not appear for his examination. Therefore no further determination could be made regarding the diagnosis, cause, and relationship to service of the Veteran's eye disability, and the case must be decided solely on the basis of the evidence of record. See 38 C.F.R. § 3.655(b). The Board has considered the Veteran's statements that his current eye disability is related to his in-service injury. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n.4 (2011). In this case, the Veteran's testimony as to the relationship between his current eye disorders and service is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); 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); Jandreau, 492 F.3d at 1377, n.4 ("sometimes 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"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). The Board acknowledges the Veteran's statements that he injured his eye during service and has "fluctuating" right eye vision since his injury. The Board further recognizes that the Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge. See Layno, 6 Vet.App. at 470. However, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render a competent opinion on the etiology of his current eye disabilities, as such matter requires medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Veteran's opinion that his current eye disabilities are related to his in-service injury is not a competent medical opinion. There is also no medical evidence of nexus, and the possibility of obtaining such on remand was precluded by the Veteran's failure to report for the scheduled examination. The Board notes that medical evidence is not always required to establish the nexus element in demonstrating continuity of symptomatology under 38 C.F.R. § 3.303(b). Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay testimony regarding observations of symptoms 'may provide sufficient support for a claim of service connection, and it is error for the Board to require medical evidence to support that lay evidence'). Here, however, the continuity of symptomatology provision is inapplicable, and the Veteran's testimony is not otherwise competent for the reasons noted above. As there is neither lay nor medical evidence of nexus, the Veteran has failed to meet his burden as to the nexus element and his claim for service connection for an eye disability must therefore be denied. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. The Board does note that the appellant honorably served his nation during a period of war and was wounded in action. If he is able to obtain new and material evidence, we encourage him to submit an application to reopen the claim. ORDER Service connection for an eye disability is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs