Citation Nr: 1334067 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 13-05 387 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to service connection for a right eye disorder. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1985 to September 1993. His primary occupational specialty was that of General Construction Equipment Operator. This matter came to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the RO. FINDING OF FACT The preponderance of the competent evidence of record shows that the Veteran's right eye disorder, diagnosed primarily as nonarteritic anterior ischemic optic neuropathy (NAION), was first manifested in January 2009 and is unrelated to any illness, event, or injury in service. CONCLUSION OF LAW A right eye disorder, diagnosed primarily as NAION, 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 October 2010, the 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, the VA notified the Veteran of the criteria for service connection, as well as the information and evidence necessary to substantiate and complete his claims, including the evidence to be provided by him and notice of the evidence the VA would attempt to obtain. The VA also set forth the criteria, generally, 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 VA treatment from January 2009 to December 2012; and a Certificate of Medical Examination from the U. S. Office of Personnel Management. In July 2011, VA examined the Veteran to determine the nature and etiology of any right eye disorder found to be present. The VA examination report shows that the examiner reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his eye disorders, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The examiner did not verify that she had reviewed the Veteran's claims folder; however, on the examination request it was noted that the claims file was being sent for review. In this regard, government officials are presumed to have properly discharged their official duties. Unless rebutted by clear evidence to the contrary, the Secretary of the VA is entitled to the benefit of this presumption. Moreover, during VA audiologic and neurologic examinations conducted the same day as the eye examination, the examiners indicated that they had received and reviewed the claims file. Accordingly, even though the July 2011 VA eye examiner did not clearly state that the claims file had been reviewed, the Board presumes that it was absent clear evidence to the contrary. See, e.g., Baldwin v. West, 13 Vet. App. 1, 6 (1999). In light of the foregoing discussion, the Board concludes that the VA examination is adequate for evaluation purposes. 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). Finally, VA offered the Veteran an opportunity to present additional evidence and argument at a hearing on appeal. However, to date, he has declined to accept that offer. 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 Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. 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). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Absent intervening disease or injury, refractive error of the eye is not a disease or injury within the meaning of VA law and regulations. 38 C.F.R. § 3.303(c); see VAOPGCPREC 67-90 and 82-90 In addition to the foregoing, the VA law and regulations state that 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). The Veteran contends that his current right eye disorder, diagnosed primarily as NAION was first manifested in service during treatment for amblyopia on the right and an air pocket over his right cornea. He reports that he has had decreased visual acuity since that time and that service connection is, therefore, warranted. 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. The Board notes the Veteran is competent to report his experiences which occurred during and after service. For example, he is competent to report the onset of decreased visual acuity in his right eye in service and continuing visual impairment after service. 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. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See 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). The Veteran's service treatment records, including the reports of his August 1985 service entrance examination and his August 1993 service separation examination are negative for any complaints or clinical findings of NAION. They do show that when he entered service, his right eye visual acuity was 20/70 and that shortly thereafter he was given a prescription for eyeglasses. However, he denied that he then had, or had ever had, eye trouble. Other than impaired visual acuity in the right eye, his eyes, pupils, ocular motility, and ophthalmoscopic processes were normal. In November 1989, it was noted that he was anisometropic and that he had right eye amblyopia and in August 1991, he was treated for bilateral eye irritation and an air pocket over his right cornea. Despite those findings, there was no evidence of chronic, identifiable right eye pathology. Indeed, during his service separation examination, it was noted that the air pocket over his right eye had resolved. His right eye visual acuity remained at 20/70, as it had been on his entry into service, and his eyes, pupils, ocular motility, and ophthalmoscopic processes were, again, found to be normal. A chronic, right eye disorder, diagnosed as NAION, was first manifested by a two month history of blurred reported during the Veteran's treatment by the VA Ophthalmology service in January 2009. The following month, the diagnosis was NAION vs. multiple sclerosis. However, an MRI was reported as normal, and it was noted that that Veteran had multiple risk factors for NAION, including abnormalities of his optic disc, hypertension, and snoring. Therefore, by March 2009, the treating VA ophthalmologists stated that the likely diagnosis was NAION. 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, constitute probative evidence against the claim for service connection for NAION affecting the right eye. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that 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). Nevertheless, the Veteran's assertions of continuing right eye symptomatology since service were sufficient to warrant a VA examination to determine the nature and etiology of any right eye disorder found to be present. The VA examination was performed in July 2011, and the VA ophthalmologist noted that the Veteran was initially seen for a progressive loss of vision in the right eye in 2009. She further confirmed that the Veteran had risk factors for the development of NAION, including an abnormal optic disc and likely obstructive sleep apnea. She also noted that the Veteran had visual field contraction consistent with a diagnosis of NAION. Therefore, she concluded that it was less likely than not that the Veteran's NAION in his right eye was caused by a loss of vision or injury on active duty. The only evidence to the contrary remains the Veteran's contentions. However, the nature and etiology of NAION are generally beyond the training and experience of a layman such as the Veteran. Moreover, evidence does not show that the Veteran was reporting a contemporaneous medical diagnosis, or that he described symptoms which were subsequently diagnosed by a medical professional. Jandreau. Accordingly, his contentions without more do not permit a grant of service connection. In light of foregoing discussion, the Board finds that the preponderance of the evidence is against a finding of a chronic, identifiable right eye disorder in service or a nexus between the currently right eye disorder, NAION, and service. Therefore, the Veteran does not meet the criteria for service connection. Accordingly, service connection for a right eye disorder is not warranted, and the appeal is denied. In arriving at the foregoing 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. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs