Citation Nr: 1330286 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 05-25 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for an allergy disability, to include as secondary to ionizing radiation. 2. Entitlement to service connection for a left eye disability. REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c)(2013), the appeal has been advanced on the Board's docket. The Veteran served on active duty from October 1946 to March 1948. These matters initially came before the Board of Veterans' Appeals (Board) from a September 2002 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In that decision, the RO denied entitlement to service connection for allergies and denied the Veteran's petition to reopen the previously denied claim for service connection for post traumatic iridectomy of the left eye. In the previous Board decision dated February 2011, the November 2004 rating decision was stated to be the rating decision on appeal. According to the procedural history of this case, the correct rating decision on appeal is the September 2002 rating decision, as stated above, which is also the rating decision found to be on appeal in the January 2010 Board decision. The Veteran testified before the undersigned at a December 2009 videoconference hearing at the RO. A transcript of the hearing has been associated with his claims folder. In January 2010, the Board granted the Veteran's petition to reopen the claim for service connection for a left eye disability and denied the underlying service connection claim and the claim for service connection for allergies. The Veteran appealed the Board's denials to the United States Court of Appeals for Veterans Claims (Court). In September 2010, the Court vacated the Board's decision, in part, and remanded the case for readjudication in compliance with directives specified in a September 2010 Joint Motion filed by counsel for the Veteran and the VA Secretary. In February 2011, the Board remanded the case for further development, which has been accomplished. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Allergic rhinitis had its onset during active service. 2. The Veteran's post-traumatic iridectomy and corneal scar of the left eye existed prior to his entry into service and did not permanently worsen during his period of active service. 3. The Veteran's astigmatism, cataracts, myopia, and macular degeneration are not caused by or related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for allergic rhinitis have been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 2. The criteria for entitlement to service connection for a left eye disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107 (West 2002); 38 CFR §§ 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants 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. The Board is granting in full the benefit sought on appeal for the issue of service connection for an allergy disability. Accordingly, any error committed with respect to either the duty to notify or the duty to assist relating to this issue was harmless and will not be further discussed. Regarding the claim for service connection for a left eye disability, November 2001, July 2003, December 2003, and June 2009 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These 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 Veteran was informed of the need to show the impact of disability on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a January 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). In response to requests for the appellant's service personnel files, the National Personnel Records Center (NPRC) stated that this was a fire related record and that the Veteran's complete assignment history could not be reconstructed. In cases where records once in the hands of the government are lost, there is a heightened obligation to explain the Board's findings and conclusions, and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran's service medical treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not show, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). In February 2011 the Board remanded the case for a VA medical examination, which was performed in October 2012. The Board reviewed the medical examination report and found it to be inadequate for rating purposes, and accordingly submitted the claim for a medical expert opinion from the Veterans Health Administration (VHA). The VHA review opinion was obtained in April 2013. The Board finds the review opinion substantially complies with the requirements articulated in the Board's remand. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Further, the Veteran has not argued, and the record does show, that the VHA opinion was inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). As the VHA opinion is based on the Veteran's medical history and described the eye disabilities in sufficient detail so that the Board's decision is a fully informed one, it is adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Veteran was provided a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the Veterans Law Judge (VLJ) who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the Acting Veterans Law Judge (AVLJ) identified the issues to the Veteran and asked specific questions directed at identifying whether the Veteran met the criteria for service connection. Additionally, the Veteran volunteered his history and symptoms since service. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009); Dingess/Hartman, 19 Vet. App. at 486. II. Service connection Applicable Legal Principles Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson, 581 F.3d 1313, 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. 498, 511. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Allergy Disability The Veteran asserts that his allergy disability began in service and is related to radiation exposure. Based on the record, a current disability of allergic rhinitis is shown. The Veteran has also been previously diagnosed as having eosinophilia. See August 2003 letter from Dr. D.G., the Veteran's private physician. Accordingly, the first element of service connection - medical evidence of a disability - is met. Service treatment records are silent for any complaints or treatment related to allergies. Post-service treatment records show treatment in May 1975 for eosinophilia and a positive allergy test in October 1985. During the October 2012 VA examination, the Veteran reported that his allergy symptoms of coughing, wheezing, sneezing, burning eyes and a runny nose began in 1947 during service while he was stationed in Japan. He thought he had a cold, but it did not resolve for about a year and a half during his time in Japan. He did not seek medical treatment and self-treated with aspirin, throat lozenges and hot tea with lemon. He reported that upon returning to the States, his symptoms worsened. In 1952, he was seen by an allergist and an ear, nose, and throat specialist who treated his allergy symptoms until the 1970s when he developed eosinophilia. Following a physical examination, the Veteran was diagnosed as having allergic rhinitis. The examiner stated that there is no documentation of any of his current symptoms in service and she could only speculate that his symptoms occurred in the way he described beginning in Japan. The May 2013 VHA opinion noted the Veteran's stated history of having symptoms of a "summer cold," strep throat, and other allergies while stationed in Japan and when he returned home. The Veteran's medical history of hypereosinophilia was also reviewed. The VHA expert then opined that based on the Veteran's statements and his medical history of his allergies, it was at least as likely that such condition was incurred during military service. Service treatment records are silent for treatment of allergy symptoms; however, the Veteran reported that he self-treated his symptoms and did not seek treatment for these symptoms until after service. The Veteran has reported that symptoms of coughing, wheezing, sneezing, burning eyes and a runny nose began during service and continued following discharge. The Veteran is competent to describe in-service symptoms and that which he personally experienced after service. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that 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 claimant is entitled to service connection where he submits supportable competent evidence of inservice nexus that is not rebutted by other medical opinion of record. Hanson v. Derwinski, 1 Vet. App. 512 (1991). In fact, the medical evidence of record supports the Veteran's claim. Although the VA examiner stated that she could only speculate that the Veteran's symptoms occurred in the way he described beginning in Japan, the VHA expert opined that the Veteran's allergies were incurred in service. The VHA opinion was definitive based on the Veteran's competent and credible report of the inservice symptoms and continuity of symptoms following service. The examiner also provided rationale, cited to specific evidence in the file as support for the opinion and was based upon review of the claims file, and is found to be persuasive. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Accordingly, service connection for allergic rhinitis is warranted. Reasonable doubt on this issue has been resolved in the Veteran's favor. Gilbert, 1 Vet. App. 49, 54. Left Eye Disability The Veteran asserts that the vision in his left eye worsened when he hit his head on the metal wall of the ship in December 1946. As an initial matter, the Board notes that refractive error of the eye is not considered a disease or injury for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9. Service records are silent for any injury to the head. The Veteran is competent, however, to describe an in-service injury that he personally experienced during service. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) On entrance examination in October 1946, post-traumatic iridectomy of the left eye was noted due to history of trauma as a child. Left eye vision was recorded as 20/20. On separation examination in March 1948, uncorrected vision in the left eye was recorded as 20/200. On post-service VA examination in June 1948, the Veteran reported an injury to the left eye at the age of 3. Uncorrected vision in the left eye was 20/3000 and corrected was 20/70. In August 2009, the Veteran underwent a VA eye examination. Based on a review of the medical evidence, the examiner opined that it was more likely than not that the Veteran entered service with reduced vision in the left eye due to a combination of anisometropic amblyopia and iris/corneal damage from trauma. An examination by a VA physician in June 1948 just three months after the Veteran's discharge documented his best corrected vision to be 20/70 in the left eye which is consistent with his ocular history. The examiner opined that it was more likely than not that the decrease in the left eye vision experienced by the Veteran while he was in the service was due to an increase in refractive error of the left eye. The examiner noted that there was no documented medical evidence that the Veteran experienced any physical injury to his left eye while on active duty. Therefore, the examiner concluded that it was less likely that the Veteran's active duty service made the pre-existing condition to his left eye worse. An October 2012 VA examination report by the same examiner parroted the August 2009 VA examination report. As the VA examiner did not provide the requested opinion based on the clear and unmistakable standard, a VHA opinion was obtained in May 2013. The Veteran's medical history of non-congenital eye conditions was reviewed. VHA expert opined that there was clear and unmistakable evidence that his surgical or traumatic iridectomy of the left eye existed prior to active duty service as clearly indicated on his entrance examination. The Veteran informed the examiners at the time of service and during the 1948 examination that his childhood left eye injury required surgery. A corneal scar to the left eye was noted in the post-service physical in June 1948 by an eye doctor, which most likely occurred with the same injury to the left eye that caused iridectomy of the left eye. As the Veteran was unlikely examined by an eye doctor at his entrance or discharge from service, this scar could have been missed. It was therefore clear to the expert that the scar existed prior to service. It was noted that the Veteran did not have an injury to the left eye during service. The expert then opined that it was clear and unmistakable that the pre-existing condition of surgical or traumatic iridectomy of the left eye and corneal scar were not aggravated by service as there was no known mechanism that would cause the iridectomy to worsen by a head injury, only a direct blow to the eye could have caused these conditions to worsen. Regarding the Veteran's loss of vision, the expert stated that he was suspicious of the visions recorded on entrance to service as eyes were not usually examined by an eye doctor unless the general physician as suspicious about the examination. The evidence did not show that the Veteran was referred to an eye doctor despite the obvious defect of the eye noted by the general physician. The expert found that the vision recorded on discharge and post-discharge, which appeared to have been conducted by an eye doctor, were more consistent with his childhood injury and scarring of the left eye. The expert opined that the Veteran never developed normal vision in his left eye. The head injury would not have caused his vision to get worse, and based on the June 1948 examination the head injury did not cause any further damage to the already damaged eye. The only reason for the Veteran's vision loss was the injury prior to service as without correction prior to the age of 9, the vision would not develop normally. Based on this rationale, the expert opined that the Veteran did not have 20/20 vision on entrance and had reduced vision in the left eye prior to service. The expert stated that the Veteran's pseudophakia of both eyes was from age-related cataracts. The Veteran's cataracts and macular degeneration were age related diseases that occurred after service. The expert opined that cataracts and macular degeneration were not likely cause by service and head trauma would not contribute to their pathology. The expert stated the Veteran also had radical keratotomy of the left eye as an adult to correct a refractive error; this surgery is also used to correct myopia and astigmatism. The Veteran's injury to the cornea as a child may have caused astigmatism and the medical evidence suggested that the Veteran had more myopia in the left eye. These conditions were clearly and unmistakably not aggravated by service as there was no injury to the eye and a head injury certainly would not have affected or caused any myopia or astigmatism. The expert concluded that the alleged head trauma did not injure the left eye or aggravated the injury he had prior to service and the loss of vision is most likely due to the injury that may have caused amblyopia in the left eye when the Veteran was a young child. The Board notes at this point that the VHA reviewer demonstrated knowledge of the factual background of the case and provided a fully-articulated opinion supported by reasoned analysis. Accordingly, the opinion is probative under the standards of Nieves-Rodriguez. In addition to the above-mentioned requirements for service connection, claimants are presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities. 38 U.S.C.A. § 1111 (West 2002). Only such conditions as are recorded in entrance examination reports are to be considered as "noted," and a history of preservice existence of conditions recorded at the time of examination does not constitute a "notation" of such conditions. Crowe v. Brown, 7 Vet. App. 238, 245 (1994); see also Vanerson v. West, 12 Vet. App. 254, 259 (1999) (history of pre-service existence of conditions recorded at the time of examination will be considered together with all other material evidence in determinations as to inception (citing 38 C.F.R. § 3.304(b)). In order to rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches See Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004); see also VAOPGCPREC 3-2003. In rebutting the presumption of soundness, records made prior to, during or subsequent to service, concerning the inception of the disease/disorder may be considered. See Harris v. West, 203 F.3d 1347, 1350 (Fed. Cir. 2000). As to the first Wagner prong, the Board notes that the Veteran did report a history of post-traumatic iridectomy of the left eye. This was on his entry to active service. Shortly following discharge on VA examination in June 1948, the Veteran acknowledged a left eye injury as a child. Moreover, the April 2013 VHA expert reviewed the service treatment records, to include the entrance and separation examination reports, and concluded that the Veteran's post-traumatic iridectomy of the left eye as well as the corneal scar of the left eye did clearly and unmistakably pre-exist his military service. The April 2013 VHA opinion is supported by the history related on the entrance examination and the Veteran's statements at the June 1948 and August 2009 VA examinations that the disability pre-existed service. The VHA opinion was definitive and as the examiner provided rationale, cited to specific evidence in the file as support for the opinion and was based upon review of the claims file, it is found to be persuasive. See Prejean, 13 Vet. App. at 448-49. Therefore, the presumption of soundness is rebutted. Thus the first prong of Wagner has been satisfied regarding the Veteran's post-traumatic iridectomy of the left eye and corneal scar. The VHA opinion also addresses the second prong of Wagner providing a definitive opinion that the Veteran's post-traumatic iridectomy of the left eye and corneal scar were clearly and unmistakably not aggravated or made permanently worse by service. The Board finds that this competent evidence is clear and unmistakable evidence that the Veteran's post-traumatic iridectomy of the left eye and corneal scar were not aggravated during service. There is no evidence to counter this medical opinion and the VHA opinion was definitive based on specific evidence in the file as support for the opinion and a review of the claims file. See Prejean, 13 Vet. App. at 448-49. Accordingly, pre-existing post-traumatic iridectomy of the left eye and corneal scar were not aggravated by his active military service. 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. §§ 3.304(b), 3.306. The VHA expert also identified several other eye disabilities that are not congenital that have been diagnosed. Regarding the Veteran's astigmatism and myopia, the VHA expert stated that these may have been caused by the Veteran's childhood injury to the left eye, but failed to provide a definitive opinion that they clearly and unmistakably existed before service. Therefore, the Veteran is presumed to have been in sound condition on entrance to service regarding these conditions. The VHA opinion stated that they were not caused by service as a head injury certainly would not have affected or caused any myopia or astigmatism. Further, the Veteran was diagnosed as having cataracts and macular degeneration. The expert opined that cataracts and macular degeneration were not likely cause by service as they are age related diseases that occurred after service and head trauma would not contribute to their pathology. The VHA opinion was definitive and as the examiner provided rationale, cited to specific evidence in the file as support for the opinion and it was based upon review of the claims file, it is found to be persuasive. See Prejean, 13 Vet. App. at 448-49. Based on the evidence and analysis above, the Board finds that entitlement to service connection for a left eye disability is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Gilbert, 1 Vet. App. 49, 54. ORDER Service connection for an allergy disability is granted. Service connection for a left eye disability is denied. ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs