Citation Nr: 1333688 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 05-28 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a left eye disability. 2. Entitlement to service connection for a right eye disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Whitehead Counsel INTRODUCTION The Veteran served on active duty from July 1943 to February 1946. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned Veterans Law Judge during a hearing held at the RO in November 2005. A transcript of the hearing has been associated with the claim file. When the case was most recently before the Board in April 2013, it was remanded for further development. The case has been returned to the Board for further appellate action. The record before the Board consists of electronic files known as Virtual VA and the Veterans Benefits Management System. In May 2013, the Veteran requested an increased rating for his service-connected hearing loss disability. The record before the Board does not show that this issue has been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, it is referred to the AOJ for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). FINDING OF FACT No chronic, acquired disorder of either eye was present in service, and no current, acquired disorder of either eye is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left eye disability are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). 2. The criteria for service connection for a right eye disability are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), 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. They 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 the Secretary 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. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in letters sent in October 2004, April 2006, and June 2006. Although the Veteran was not provided complete notice until after the initial adjudication of the claims, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claims. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The record also reflects that VA and private medical records have been obtained. In addition the Veteran was afforded a hearing before the Board. The Board acknowledges that the Veteran's service treatment records are not of record, as they were apparently destroyed in the 1973 fire at the National Personnel Records Center. Due to the missing service treatment records, the Board recognizes its heightened obligation to explain its findings and conclusions. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board must point out, however, that it does not read into O'Hare the presumption that the missing medical records would, if they still existed, necessarily support the Veteran's claims. Case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when a veteran's medical records have been destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to a veteran. Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran was provided VA examinations with respect to his claims in August 2007, March 2012, and March 2013. A VA medical opinion was obtained in December 2011. The examiners provided opinions as to the etiology of the Veteran's claimed disabilities. Collectively, the medical opinions are adequate, as they were based upon a review of the evidence of record, consideration of the Veteran's lay statements, and are properly supported. The Board remanded the claims in April 2013 so that the originating agency could obtain any outstanding medical records relevant to the Veteran's claims. Thereafter, the originating agency obtained the Veteran's VA treatment records dated up until April 2013. It also contacted the Veteran and requested that he sign and return an enclosed authorization form so that VA could request any treatment records from private medical providers relevant to his claims. In July 2013, the Veteran informed VA that the physicians who treated him prior to him receiving medical treatment at VA were all deceased and that he already submitted information with from his private physician, Dr. Gunn. He requested that his case be decided. Thus, the Board finds that there has been substantial compliance with its April 2013 remand as the Veteran's available medical records have been obtained. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board will address the merits of the claims. Legal Criteria Service connection may be established for 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 line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Refractive error of the eyes is not a disease or injury for VA compensation purposes. 38 C.F.R. § 3.303(c). Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran claims that he currently has left eye and right eye disabilities due to his military service. He asserts that while on active duty he was in close proximity to an anti-aircraft gun when it went off and created a flash of light that blinded him and burned his eyes. According to the Veteran, he passed out and was subsequently treated for his burning eyes. He attributes his current eye conditions to this in-service incident. The Veteran's DD 214 reflects his service as a cannoneer in the United States Army during World War II. This record shows that he received a Good Conduct Medal, American Campaign Medal, European African Middle Eastern Campaign Medal with 3 Bronze Stars, and the World War II Victory Medal. VA treatment records show multiple diagnoses related to the eyes as early as March 2000. A March 2000 treatment record documents the Veteran's report of "foggy" vision for approximately three months, blurry near vision with glasses, a history of a blood vessel bursting in the left eye in 1996, and a history of three laser procedures. He denied a history of ocular trauma. The clinical examination revealed refractive error, bilateral cataract, status post focal laser for the left eye, and branch retinal vein obstruction (BRVO) with macular edema of the right eye. Private treatment records show that he underwent surgery to treat a BRVO in the right eye in February 2001. He was noted to have also developed a BRVO in the left eye, and to have undergone macular photocoagulation treatment. Records dated from August 2001 through May 2004 include additional diagnoses of right eye macular edema; left posterior vitreous detachment; left vitreous hemorrhage; status post focal surgery for both eyes; and bilateral cataract. Additional VA records show that the Veteran underwent cataract surgery for his right eye in November 2002. In support of his claim, the Veteran submitted a September 2004 statement from a VA physician who opined that the Veteran's retinal venous occlusive disease was at least as likely as not related to an injury, disease, or event occurring during the Veteran's military service. The evidence of record also includes statements from the Veteran's wife and his friends, C.F. and M.C., who reported that he first had vision problems after his return from service in World War II. During the November 2005 hearing before the Board, the Veteran provided testimony in support of his claims. He reported that his eyes burned for a few days after the in-service anti-aircraft gun blast incident and that his symptoms eventually resolved. He testified, however, that he began to have trouble with his vision approximately two to three years after the incident and that he has had vision trouble since that time. An August 2007 VA examination report notes the Veteran's report of experiencing blurry vision, intermittent floaters in his left eye, and decreased vision in his right eye that began in 1944. He stated that he experienced decreased vision on the right side after an in-service incident during which he was in close proximity to an anti-aircraft gun when it fired. The examiner diagnosed refractive error; posterior vitreous detachment associated with a floater in the left eye; left eye cataract; pseudophakia in the right eye; and status post branch retinal vein occlusion in the right eye, repaired with laser retinopexy. The examiner stated that there was no evidence of trauma in the right eye. Chorioretinal scarring was noted in the right eye, which the examiner determined should not cause any decrease in vision. The examiner further concluded that the Veteran's status post right eye vein occlusion with repair could have resulted in decreased visual acuity. He concluded, however, that this was not a result of service trauma. In September 2009, the RO obtained a VA medical opinion regarding the etiology of the Veteran's claimed disabilities. After reviewing the claim file, the examiner opined that the Veteran's right eye BRVO, posterior vitreous detachment, age-related left eye cataract, right pseudophakia, and left chorioretinal scar were not caused by or a result of a service-connected disease or injury. The examiner explained that retinal vein occlusions are almost always associated with high blood pressure and/or heart disease. He also noted that the disorder is age-related. The examiner further opined that the Veteran's posterior vitreous detachment was an age-related condition, and that the probability of a person having this disorder is equal to the age over 50. Additionally, the examiner determined that the Veteran's age-related left eye cataract, by definition, was the result of getting older and not a service-connected condition. Regarding the Veteran's right eye pseudophakia, the examiner noted that the Veteran's age-related cataract was removed and this was no longer a problem. As for the left chorioretinal scar, the examiner noted an injury to the left inferior retina, but he determined that it did not cause any disability. A March 2010 VA eye examination report documents the Veteran's report of sustaining eye injuries in service and his medical history as previously described. The examination revealed a left retinal scar, noted as a possible result of a past BRVO with focal laser surgery. The examiner stated that the scarring was not causing any direct visual problems. Additional diagnoses included a history of right BRVO with laser scars; blurred vision; pseudophakia right eye; and cataract left eye. Based on current medical literature and clinical knowledge, the March 2010 examiner opined that the Veteran's left retinal scarring and right eye BRVO was less likely than not caused by or a result of a service injury. The examiner determined that the left eye scarring was secondary to a past left BRVO with focal laser surgery. Therefore, he concluded that it would not be related to a service injury. He further commented that BRVOs are generally secondary to some kind of vascular disease and have an increase in incidence with age. The examiner acknowledged the Veteran's report that his private physician opined that his condition could have come from a service event. However, the examiner was unable to find documentation of this opinion in the claim file. Barring any contradictory evidence from the private physician, the examiner opined that the disorders were less likely than not related to the Veteran's claimed in-service injury. Regarding the Veteran's blurred vision, the examiner opined that the disorder was less likely than not caused by or a result of a service injury. The examiner attributed the Veteran's blurred vision in his right eye to his BRVO and focal laser surgery. He stated that the Veteran's left eye blurred vision was secondary to his cataract and possibly related to some inferior ischemia due to a possible laser surgery. He indicated that the rationale regarding the Veteran's retinal scarring was also related to his blurred vision. Lastly, the examiner opined that the Veteran's right pseudophakia and left cataract were not caused by or a result of a service injury. He acknowledged that cataracts can be caused by trauma, as seen in current medical literature. The examiner highlighted, however, that those types of cataracts typically form close in time to the injury and typically are posterior subcapsular cataracts. He highlighted that the Veteran's cataracts formed much later and were the typical nuclear sclerotic kind associated with normal aging. The examiner concluded that the Veteran's claimed injury was not the type that would cause traumatic cataracts. In December 2011, a VA ophthalmologist reviewed the claim file and provided a medical opinion regarding the etiology of the Veteran's diagnosed eye disorders. The ophthalmologist relayed that the Veteran underwent cataract extraction in the left eye in October 2011 and was bilaterally pseudophakic. The physician stated that there could be no dispute as to the presence of age-related macular degeneration in this case, as documented by multiple providers. He further noted that macular degeneration is the leading cause of central visual acuity loss in people over 50 years of age in the United States. He stated that the leading risk factor for the condition is age greater than 60 and noted that the Veteran's age of 86 made him at risk for the condition. The ophthalmologist also noted that the risk factors for the Veteran's BRVO in the right eye included cardiovascular disease and hypertension, which had been documented in this case. Given the Veteran's advanced age and comorbidities, the ophthalmologist opined that there was a 50 percent or better probability that his eye disorders were not etiologically related to his military service. The Veteran underwent an additional VA examination in March 2012, which was performed by the same optometrist who performed the August 2009 examination. The examination revealed bilateral pseudophakia; BRVO for the right eye and possibly for the left eye; and dry advanced macular degeneration, bilateral. The examiner did not provide an opinion as to the etiology of any of the diagnosed eye disorders. In March 2013, the Veteran underwent an additional VA examination. The examiner reviewed the Veteran's pertinent history and noted the Veteran's history of bilateral BRVO with macular edema and subsequent macular laser photocoagulation, cataract surgery for the left eye, and left eye epiretinal membrane and macular peel. The clinical examination revealed BRVO; cystoids macular edema; epiretinal membrane; chorioretinal scarring secondary to macular laser photocoagulation; and bilateral pseudophakia. The examiner noted the Veteran's significant history of treatment for his eyes over the last twelve years. He opined that all of the Veteran's eye disorders were either age-related, related to his high blood pressure, or both. The examiner concluded that none of the Veteran's eye conditions appeared to be related to trauma or any other service related condition. Given the foregoing, the Board finds that service connection for left eye and right eye disabilities is not warranted. As an initial matter, the Board notes that the Veteran has been diagnosed with refractive error. As noted above, refractive error is not a disease or injury for VA compensation purposes. 38 C.F.R. § 3.303(c). Thus, service connection cannot be awarded for this disorder. The Board acknowledges that the post-service medical evidence reflects that the Veteran has been diagnosed with multiple eye disorders, specifically including bilateral BRVO; macular edema and degeneration; bilateral cataract; bilateral pseudophakia; chorioretinal scarring; left posterior vitreous detachment; left eye epiretinal membrane and macular peel; and blurred vision. However, the preponderance of the evidence establishes that the Veteran's acquired eye disorders are not related to his military service, to include the claimed in-service anti-aircraft gun blast incident. Indeed, the September 2009, March 2010, December 2011, and March 2013 VA opinions are all against the claim. The opinions attribute the acquired eye disorders to high blood pressure and/or age, rather than the in-service injury reported by the Veteran. Collectively, the Board finds these opinions to be the most probative evidence regarding the etiology of the claimed disabilities. The VA opinions were based on the evidence of record, the Veteran's statements, and/or the results of his clinical examinations, are supported by sound medical rationale, and provide highly probative and compelling evidence against the Veteran's claim that his current eye disorders are related to an in-service incident. In reaching the above determination, the Board acknowledges the September 2004 VA physician's opinion that the Veteran's retinal venous occlusive disease is at least as likely as not related to service. The physician, however, failed to provide the medical basis to support his conclusion. The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). See also Stefl v. Nicholson, 21 Vet. App. 120,124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In light of this, the Board finds the September 2004 medical opinion to be outweighed by the other medical opinions of record. The Board has also considered the Veteran's lay statements regarding his in-service experiences and his bilateral eye symptomatology. The Veteran is competent to describe his in-service recollections regarding the anti-aircraft gun blast incident and his eye symptomatology because this requires only personal knowledge as it comes to him through his senses. However, the Veteran does not possess the medical expertise to diagnose a disorder of the eyes. The Board further acknowledges the Veteran's contentions that his current bilateral eye disorders were incurred as a result of the in-service anti-aircraft gun blast incident. The Board has found no reason to doubt the Veteran's credibility regarding the claimed event. Nevertheless, the etiology of the Veteran's current left and right eye disorders is a medical question that the Veteran, as a lay person, is not competent to answer. As discussed above, the preponderance of the medical evidence shows that his current eye disorders are not related to service. Consideration has also been given to the statements from his wife and friends regarding his vision problems following his return from service. However, the Veteran's wife and friends are also not competent to provide opinions regarding the medical etiology of an eye disorder. There is no competent evidence showing that the vision problems experienced by the Veteran following his discharge from service were due to a disease or injury, as opposed to refractive error. Accordingly, the Board must conclude that service connection is not warranted for the Veteran's left eye and right eye disorders. In arriving at the decision to deny the claims, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. (CONTINUED ON NEXT PAGE) ORDER Service connection for a left eye disability is denied. Service connection for a right eye disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs