Citation Nr: 1333857 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 07-05 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a left eye disorder (other than diabetic retinopathy), to include as secondary to service connected right eye postoperative complete iridectomy, with light perception only, and service connected type II diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to February 1972. This case initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision by Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In September 2009, the Veteran testified before a Decision Review Officer. A transcript of that hearing is associated with claims file. This case was remanded by the Board for further development in August 2012 and April 2013. Recent examination has noted the presence of diabetic retinopathy. It has not been noted whether it affects one or both eyes. As such, the decision herein concerns impairment of the left eye, other than diabetic retinopathy. The issue of service connection/rating for diabetic retinopathy is referred to the RO for appropriate action. FINDINGS OF FACT 1. A left eye disorder (other than diabetic retinopathy) was initially demonstrated many years after service discharge and has not been shown by competent clinical, or competent and credible lay evidence to be causally related to the Veteran's active service. 2. A left eye disorder (other than diabetic retinopathy) was not caused by or permanently made worse by the service connected right eye postoperative complete iridectomy, with light perception only or the service connected type II diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for a left eye disorder (other than diabetic retinopathy) to include as secondary to a service connected disability are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in February 2005 and March 2006, VA advised the Veteran of the information and evidence needed to substantiate a claim. The letter provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. The appeal was most recently readjudicated in the July 2013 supplemental statement of the case. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and identified private medical records. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2) ; 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. ANALYSIS The Veteran appeals the denial of service connection for a left eye disorder (other than diabetic retinopathy). He contends that his left eye weakened because of his service connected right eye disability. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Section 3.310 was amended effective October 10, 2006, the claim for service connection were filed before the amendment as such the current version of 38 C.F.R. § 3.310 is not applicable to the claim on appeal. Based on the evidence of record, the Board finds against the claim. In this regard, while the Veteran reported eye trouble during his July 1969 preinduction examination, the eyes were shown to be clinically normal at that time. It was noted that he used to wear glasses. Although there was a report of eye trouble by the Veteran, the mere report of history without more is insufficient to establish that an eye condition preexisted service. The Board finds that the presumption of soundness attaches and has not been rebutted by the Veteran's report of history upon entrance. As such, the Veteran is presumed sound upon entry into service. During service, the Veteran complained of and was treated for a right eye injury and problems. The December 1971 separation examination revealed abnormal findings for the eyes. The Veteran also reported eye trouble at that time. A scar of the right eye and manifestations relating to the right eye, however, were recorded at that time. There is no showing of complaints, treatment, findings, and/or diagnoses for the left eye during service. When the Veteran was examined in May 1972, within a year of separation, no left eye problems were identified and/or noted upon examination. Other physical examination reports from 1972 to 1998 revealed no pertinent findings or indications of abnormality for the left eye. In fact, in October 1991, the left eye was shown to have 20/20 vision uncorrected with no evidence of glaucoma. In his October 1998 VA examination, the Veteran reported that his left eye had weakened over the last three years, which is 23 years since separation. A review of the record discloses that the Veteran's disability manifested several decades post service. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board has reviewed the service examination reports, to include the final separation examination, VA medical records, the VA examinations and private treatment records of file. These records do not include any opinion linking the Veteran's disability directly to service. There is no competent evidence or opinion that the Veteran's left eye disorder is related to his military service and neither the Veteran nor his representative has presented any such opinion. Rather, it was found in April 2009 that the Veteran was "essentially monocular and with age and worsening presbyopia finds more strain on the left eye." In the July 2013 opinion, the VA examiner opined that the Veteran has trace nuclear sclerotic cataract in his left eye, which was noted on September 2012 examination, is due to the normal aging process. The VA medical opinion is persuasive and warrant being assigned greater probative weight. The opinion was rendered by a medical professional with the expertise to opine on the matter at issue in this case. In addition, the examiner addressed the Veteran's contentions and based her opinion following a review of the claims folder as well as a complete physical examination. There is no pertinent opinion to the contrary. To the extent, the Veteran claims that his left eye disorder (other than diabetic retinopathy) is caused and/or aggravated by his service connected right eye postoperative complete iridectomy, with light perception only or service connected type II diabetes mellitus, the evidence is also against this claim. To that end, the April 2009 VA examiner found that there was no eye condition related to diabetes mellitus. The Board acknowledges the February 2006 private opinion from Dr. D stating that the Veteran was experiencing decreased vision in his left eye due to being blind in his right eye. The finding is not persuasive as it was not indicated what was causing the decreased vision, and there is no medical rationale provided. The VA examiner, however, opined that the Veteran has trace nuclear sclerotic cataract in his left eye which is due to the normal aging process, and was not caused by or aggravated by the service connected right eye post-operative complete iridectomy with light perception only or the service connected diabetes mellitus type II. The Board finds that the medical opinion rendered by the VA examiner is persuasive and assigns it greater probative weight than the opinion of Dr. D. The probative value of medical evidence is based on the medical expert's personal observation of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 471 (1993). It is not error for the BVA to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases. Owens v. Brown, 7 Vet. App. 429 (1995). The opinion of the VA examiner was rendered by a medical professional with the expertise to opine on the matter at issue in this case. The examiner addressed the Veteran's contentions and based her opinion on a review of the claims folder as well as a complete physical examination of the Veteran. Additionally, as noted, the Board finds that Dr. D does not support his opinion with objective evidence nor does he provide any additional rationale for his opinion. In sum, the most probative evidence of record is devoid of a showing that the Veteran's left eye disorder (other than diabetic retinopathy) is related to service and/or a service connected disability. Hence, entitlement to service connection is denied. In making this decision the Board notes that the Veteran is competent to report eye problems and the circumstances surrounding such. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issue in this case, left eye disorder (other than diabetic retinopathy), falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a left eye disorder (other than diabetic retinopathy), to include as secondary to service connected right eye postoperative complete iridectomy, with light perception only, and service connected type II diabetes mellitus is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs