Citation Nr: 1334228 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-23 303A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a bilateral eye disability ("eye disability"). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1984 to February 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran was scheduled for a hearing before a member of the Board in October 2011. He failed to appear at the hearing, did not request postponement, and has not shown good cause for failure to appear. Hence, the case is processed as if the request for a hearing had been withdrawn. See 38 C.F.R. § 20.702(d)(2013). The Board has not only viewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran's eye disability is not related to active service. CONCLUSION OF LAW The criteria for service connection for an eye disability have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a)(2013). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Here, the Veteran contends that his eye disability is the result of head trauma incurred during an in-service accident in which his tractor-trailer jackknifed. As an initial matter, the Board notes that in March 2008, the RO issued a Formal Finding of Unavailability of Service Medical Records. The RO also sent a letter to the Veteran advising him that his service treatment records were unavailable and asking him to submit any copies of his service treatment records he may have in his possession. The Veteran submitted treatment records from July 1985 and June 1986. However, because the Veteran also indicated in his substantive appeal that he returned to his station after the accident in 1989, some treatment may be missing from the service treatment records of record that were provided by the Veteran. Thus, in circumstances such as this, where the original service treatment records are unavailable, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Following service, the Veteran received treatment for blurred vision in March 1991 at Georgetown University Hospital. On the admission assessment, the Veteran indicated he had nine headaches the night before the onset of the vision loss. Importantly, during this treatment for an eye problem, there was no reference to the alleged tractor-trailer accident. In addition, the March 1991 discharge summary indicated the Veteran presented with a four-day history of blurred vision, greater in the right eye. At that time, the Veteran also reported that he had a similar episode a week prior, which lasted for several minutes before resolving. Upon examination, the head and neck were normal. A head CT scan was also performed, which showed no lesions, and an MRI of the brain revealed "no evidence of infectious etiology and no malignancy." Moreover, the MRI showed "mild increased signal in the ethmoid air cells consistent with sinusitis." The Veteran was provided prednisone and discharged. In May 1991, the Veteran's symptoms returned. Upon physical examination, the Veteran had "bilateral disc pallor with significant papilledema and hemorrhage in the left fundus." Visual acuity was 20/200 in each eye. An MRI revealed findings consistent with optic neuritis; the intracranial structures were normal at that time. The Veteran underwent excision of the optic sheaths bilaterally. Importantly, again, during this treatment for an eye problem, there was no reference to the alleged tractor-trailer accident. About ten years later, the Veteran reported loss of vision, intermittent pain, and headaches. A June 2001 MRI revealed "normal orbits and optic nerves" with evidence of "chronic bilateral maxillary sinusitis." The Veteran's color vision was noted as defective in both eyes, worse in the left. The Veteran was diagnosed with "bilateral optic neuropathy of unknown etiology." In September 2004, "Dr. S.S." diagnosed the Veteran with headaches, optic neuropathy, and open angle glaucoma. In March 2008, the Veteran submitted a statement asserting that after the in-service accident, he experienced headaches and then began "seeing floaters," which preceded his first visit to Georgetown University Hospital. First, the Board acknowledges that the Veteran has been diagnosed with an eye disability. Next, the Board recognizes that there are no service treatment records from the time of the alleged in-service tractor-trailer accident, or any other evidence, beyond the Veteran's contentions, that such an accident occurred. However, even assuming there was an in-service tractor-trailer accident, the Board finds that the evidence of record does not show a link between the Veteran's current eye disability and active service. The medical evidence of record does not suggest that the Veteran's eye disability was caused by head trauma, to include an in-service tractor-trailer accident. In contrast, medical records from 2001 provide no etiology for the Veteran's eye disability, and both a head CT and MRI from that time yielded normal results, providing evidence against this claim. Furthermore, a 1991 MRI was unremarkable. Also, in both the 1991 and 2001 MRIs, examiners found evidence of sinusitis, not head trauma. Such findings provide factual evidence against the Veteran's claim. Moreover, when the Veteran sought to establish medical care at the Georgetown University Hospital in 1991, after service, he did not report the onset of headaches during or soon after service, as he suggested in his March 2008 statement. Indeed, the Veteran made no reference to the alleged tractor-trailer accident throughout his treatment in 1991 and 2001 for his eye disability. Such histories reported by the Veteran for treatment purposes are of more probative value than more recent assertions and histories given for VA disability compensation purposes. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Therefore, the Veteran himself has provided evidence against his own claim that he experienced headaches after the tractor-trailer accident that eventually resulted in an eye disability. In addition, the Veteran's reported history does not explain the ten-year gap between the first incident of blurred vision, which the Veteran attributes to head trauma during service, and the vision impairment in 2001. Such a prolonged period without medical complaint after service can be considered, among other factors, in the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board has considered the Veteran's opinion that his eye disability is the result of his time in service. In this regard, the Board acknowledges that the Veteran is competent to describe symptoms he experienced, whether in service or during the years since discharge, based on his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Nevertheless, the Veteran is not competent to provide a complex medical opinion, such as the etiology of an eye disability as a result of head trauma. His own initial statements to heath care provides did not connect his current problem to service. Therefore, the Board finds that the most probative evidence of record does not provide a basis to establish a link between the current eye disability and service. Accordingly, the Board finds that a preponderance of the evidence is against the claim for entitlement to service connection for an eye disability, and this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 2107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As discussed below, VA has fulfilled its duties under the VCAA. When VA receives a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159 (b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service-connection claims, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the VCAA duty to notify was satisfied by a December 2007 letter that informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. The letter also included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The duty to assist also includes providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA has not provided a medical opinion with regard to this claim. However, as explained in detail above, the evidence does not show that a current eye disability may be associated with an in-service injury or event. With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case) would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, as the only evidence that the Veteran's claimed disability is related to military service is the conclusory generalized lay statements of the Veteran, which are unsupported by even speculative medical evidence. In fact, even if the Board assumes the injury occurred in light of the fact that is appears some medical records from service could not be located, his own prior statements do not connect the alleged injury in service to the eye problem or indicate a continuity of symptomatology (it actually provides evidence against such a finding). Hence, under McLendon, the Board is not required to have the Veteran undergo a VA compensation examination for a medical nexus opinion. Id. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In connection with the current appeal, the evidence of record includes the statements in support of the claim by the Veteran and his representative and private medical records. As previously discussed, the RO issued a Formal Finding of Unavailability of the Veteran's service medical records in March 2008, outlining its multiple attempts to obtain copies of the Veteran's service treatment records. The RO also sent the Veteran a letter in March 2008 advising him that his service treatment records were unavailable, and asking him to submit any copies of his service treatment records he may have in his possession. The Veteran responded by submitting his own copies of service treatment records. Therefore, the Board find that VA's duty to assist has been fulfilled with regard to attempting to obtain the Veteran's service treatment records, and that further efforts to obtain them would be futile. The Veteran also stated in his July 2009 substantive appeal that he was seen at the Georgetown University Hospital several times between 1989 and 1991. However, the request for records from Georgetown University Hospital specifically included treatment from 1989 through 1991 and the response from that provider did not include any such treatment. In addition, the Veteran submitted a one-page document from the Social Security Administration (SSA) indicating his receipt of disability benefits for visual impairment. However, the Board has not obtained SSA records in this instance because the Veteran's report does not indicate such benefits are relevant to the claims on appeal. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that SSA records need not be obtained if they are not relevant or potentially relevant to a claim). In short, obtaining the Veteran's SSA records will not provide a nexus between active service and a current eye disability, which is necessary to substantiate the claim. The Board finds that it has all pertinent records available regarding the limited issue before the VA at this time. In sum, the Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Hence, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for an eye disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs