Citation Nr: 1333896 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-34 012 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the residuals of a right eye disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from March 1957 to September 1977. He was an aircraft mechanic in the Air Force. This case was previously before the Board of Veterans' Appeals (Board) in May 2013, and remanded for further development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's right eye disorder, manifested primarily by retinal detachment and glaucoma, was first manifested many years after service, and the preponderance of the competent evidence of record is against a find that it is in any way related to service. CONCLUSION OF LAW A right eye disorder is not the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issue of entitlement to service connection for a right eye disorder. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In May 2009, VA received the Veteran's claim, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA informed him of the criteria to establish service connection. VA also notified him of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. VA also advised the Veteran of the general criteria for rating service-connected disabilities and for assigning effective dates, should service connection be granted. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the Veteran's service treatment records; records reflecting his treatment at or through the Eye Clinic of Wichita from June 1991 through March 1994; records reflecting his treatment at Greene Vision from 1991 through 1997; a January 1992 operative report from Cataract Surgery Center; records reflecting his treatment at or through Bishop Clarkson Hospital in January and February 1997; records reflecting his treatment by or through Midwest Eye Care, P.C. from January 1997 through April 1998; a June 2009 statement from the Veteran's wife; statements from former fellow servicemen, M. G. K, P. S. G., D. B., and C. J. S., Jr., dated in June 2009, February 2010, February 2010, and August 2011, respectively; records reflecting the Veteran's treatment by or through the Retinal Associates of Oklahoma; records and statements reflecting the Veteran's treatment since July 2009 by or through J. R., M.D. The Veteran also testified in April 2012 at a video conference with the undersigned Veterans Law Judge. The Veteran also underwent a January 2013 VA examination. The VA examination report shows that the examiner reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his right eye conditions, reviewed pertinent medical research, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the VA examination is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). During the April 2012 video hearing conference, the presiding Veterans Law Judge explained the issue on appeal and engaged in a colloquy as to the status of the evidence. In April 2013, the Veteran's Law Judge sent the Veteran a clarifying letter also suggesting the possibility of additional evidence to support the Veteran's claim and gave him an additional 30 days to submit such evidence. In light of the Veterans Law Judge's actions during and after the video conference, the Board finds that there was no prejudice to the Veteran's claim as a result of the conduct of that hearing. Bryant v. Shinseki, 23 Vet. App. 488 (2010); see Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009). In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal Initially, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). Service connection may be granted for any 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). During his April 2012 video conference, the Veteran testified that he sustained an injury to his right eye in service in which hydraulic fluid was sprayed into the eye. He stated that the injury occurred in 1974 and that since that time he had experienced vision problems, including glaucoma and a detached retina. He noted that his wife and former fellow servicemen had attested to fact that the injury happened. The Veteran acknowledged that the injury is not recorded in his medical records. He alleged that he was essentially compelled to not report for sick call, and that it was not unusual that the treatment for a right eye disorder was not contained in his service treatment records. In any event, he maintained that service connection was warranted for a right eye disorder. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. Lay persons, such as the Veteran, his wife, and former fellow servicemen, are competent to relate what he experienced during and since the conclusion of his service. For example, they are competent to report that he had hydraulic fluid sprayed in his right eye while working on an airplane in 1974. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Federal Circuit Court discussing 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.307(b), and its prior holdings in Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)). Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional. See Jandreau, supra. In this case, the residuals of chemical burn of the right eye are not commonly within a lay person's knowledge. Moreover, the Veteran did not report a contemporaneous medical diagnosis from service or for many years thereafter, nor were the Veteran's symptoms in service subsequently diagnosed by a medical professional. Therefore, the Veteran's opinion without more is not dispositive. Competency must be distinguished from weight and credibility, which are factual determinations relevant to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, supra. In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999); Evans v. West, 12 Vet. App. 22 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30 (1993). This denial of service connection is not fundamentally based on medical evidence, but instead on the lack of credible evidence indicating that the claimed in-service incident occurred. During his March 1957 service entrance examination, he answered "No", when asked if he then had or had ever had eye trouble. His uncorrected visual acuity was 20/20, bilaterally, and a examination of his eyes, generally, as well as his pupils, ocular motility, and ophthalmoscopic system was normal. In August 1958, he was treated for bilateral conjunctivitis, manifested by a burning sensation in his eyes. However, that was apparently acute and transitory, as he did not report further treatment for an eye disorder for the remainder of service. Even if the claimed right eye injury occurred, the Veteran's service treatment records, including the reports of multiple flight examinations, are negative for any complaints or clinical findings of a residual right eye disorder of any kind. The Veteran's assertion of a military culture then present which either subtly or directly discouraged him from seeking medical treatment is not credible. Had the Veteran been experiencing chronic vision problems or other right eye difficulty following the injury, it is reasonable to expect that he would have sought medical assistance, as he had on numerous other occasion. The record indicates that the Veteran sought treatment for other disorders after that time. For example, in October 1975, he sought treatment for a right toe disorder, and in June 1975, he sought treatment for back pain. That he did not do so in or after 1974 for vision problems in his right eye tends to militate against his claim. This is particularly true when viewed in conjunction with the fact that during flight examinations in June 1975 and May 1976, and during his July 1977 service retirement examination, he again answered "No", when asked if he then had or had ever had eye trouble. These were occasions when the service department medical authorities specifically inquired as to the Veteran's vision health and the Veteran had no motive whatsoever to misrepresent his health. As during his service entrance examination, his uncorrected visual acuity was 20/20, bilaterally, and a examination of his eyes, generally, as well as his pupils, ocular motility, and ophthalmoscopic system continued to be normal. These medical records are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). In addition, his eyes were reported to be within normal limits during a November 1977 VA examination. A chronic, identifiable right eye disorder, diagnosed as glaucoma, was first manifested in June 1991, almost 17 years after the right eye injury in service. During the next 18 years, the Veteran continued to receive treatment for a right eye disorder, including a detached retina, as well as glaucoma. Despite that lengthy treatment, he did not report a history of the inservice right eye injury until July 2009, when he began treatment with J. R., M.D. The normal medical findings at the time of the Veteran's separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against his the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that the veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). The record also indicates that the Veteran did not file his claim of entitlement to service connection for a right eye disorder until May 2009. Had he been having chronic vision problems since service, it is reasonable to expect that he would have filed an earlier claim. He knew how to do so, having filed a claim of entitlement to service connection for a back disorder in October 1977, the month after he retired from service. That he did not do so with respect to a right eye disorder further militates against his claim. In several statements, such as that dated in March 2010, the Veteran's treating eye physician J. R., M.D., stated that the Veteran's right eye disorder in service led to the Veteran's detached retina and glaucoma. Therefore, in January 2013, VA examined the Veteran to determine the nature and etiology of any right eye disorder found to be present. The VA examiner confirmed the diagnoses of retinal detachment in the right eye, as well as bilateral glaucoma and cataracts. The Veteran related the history of his inservice right eye injury. However, following the examination and review of the Veteran's medical history, the VA examiner opined that it was less likely than not that the Veteran's right eye disorder was the result of his inservice right eye injury. He noted that there was no documented eye problems in service. His research showed that hydraulic fluid (an acidic substance) in the eye could cause damage to the cornea and conjunctiva, but he noted that the Veteran did not have right eye damage in either of those areas. Moreover, he noted that the Veteran had stated that the hydraulic had sprayed him in the face as well as his right eye. However, the examiner found no evidence of a chemical burn on any area of the Veteran's face. Finally, the examiner noted that the development of glaucoma was likely a function of age. For these reasons, the VA examiner concluded that absent objective findings, he could not substantiate that the Veteran's chemical burn in service had been so significant as to lead to one of the most severe conditions causing damage to the drainage system of the eye. The Chief of the Ophthalmology service concurred with that assessment. The Board finds the VA examiner's conclusion more persuasive than that of Dr. R. Unlike Dr. R.'s statement, the VA examiner supported his conclusion with a multipoint rationale, a rationale that was based not only on the examination but on a review of the Veteran's medical history and current research. Dr. R's failure to explain the basis for his opinion reduces the weight of that opinion. Sklar. Moreover, Dr. R.'s conclusion was based primarily on a history reported by the Veteran. As noted above, however, contemporaneous evidence, such as the Veteran's service treatment records, has greater probative weight than a history reported by the Veteran. Curry. For these reasons, the VA examiner's opinion was more full and complete than that of Dr. R. The preponderance of the evidence is against the Veteran's claim, and service connection for a right eye disorder will be denied. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Entitlement to service connection for a right eye disorder is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs