Citation Nr: 1334804 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-44 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for residuals of right eye trauma. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from October 1996 to October 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board notes that the December 2008 rating decision also denied service connection for residuals of left leg surgery. Thereafter, the Veteran entered a notice of disagreement in July 2009 and statement of the case was issued in October 2009. Thereafter, he perfected his appeal by submitted a timely substantive appeal in November 2009. Subsequently, a June 2012 rating decision granted service connection for residuals of left lower extremity surgery and assigned an initial noncompensable rating, effective May 27, 2008. Thereafter, a July 2012 rating decision granted a separate noncompensable rating for a left lower extremity scar, effective May 27, 2008, and increased the initial rating for residuals of left lower extremity surgery to 10 percent, effective May 27, 2008. Consequently, such awards of service connection are a full grant of the benefit the Veteran sought on appeal. However, in July 2012, the Veteran submitted a notice of disagreement with respect to the propriety of the initially assigned 10 percent rating for his residuals of left lower extremity surgery and a statement of the case regarding such issue was issued in August 2013. However, the Veteran did not a timely substantive appeal. Therefore, such issue is not properly before the Board. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the claim on appeal. FINDING OF FACT For the entire appeal period, the Veteran does not have a current diagnosis of residuals of a right eye trauma. CONCLUSION OF LAW The criteria for service connection for residuals of a right eye trauma have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between a Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a June 2008 letter, sent prior to the initial unfavorable decision was issued in December 2008, advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, this letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's available service treatment records have been obtained and considered. In a September 2008 statement, the Veteran wrote that he had not received treatment for his claimed condition since active duty service. The Veteran has also not identified any additional, outstanding records that have not been requested or obtained. In this regard, the Board notes that, an October 2008 Memorandum, the RO entered a formal finding of unavailability of the Veteran's service treatment records. Specifically, the RO noted that, in a June 2008 letter, the Veteran was provided with a letter that requested that he send copies or original service treatment records if they were in his possession. The RO further noted that, although the Records Management Center (RMC) indicated that the Veteran's service treatment records had been provided in May 2008, such were never received. Additionally, in June 2008, the RMC indicated that they were unable to locate such records. In September 2008, the RO sent a second request to the Veteran requesting copies or original service treatment records, to which he responded that he did not have such records in his possession. Therefore, the RO determined that all efforts to obtain the Veteran's service treatment records have been exhausted and further attempts would be futile. In an October 2008 letter, the Veteran was advised of the RO's findings and further informed of alternative evidence that may be used in place of such records. Subsequently, in September 2010, April 2012, and July 2012, service treatment records pertaining to the Veteran were received. Upon review of such records, the Board notes that, with the exception of the Immunization Record, they only pertain to the Veteran's period of service from March 2000 to August 2004. There are no records pertaining to his period of service prior to 2000. Insofar as the Veteran's service treatment records may be incomplete, the Board finds that he was provided notice of the RO's attempt to obtain such records, given an opportunity to provide such or alternative evidence, and informed that all efforts to obtain such records had been exhausted and additional efforts would be futile. Moreover, as his claim is being denied on the basis that he does not have a current disability of residuals of a right eye trauma, there is no prejudice to him in proceeding with a decision on this matter. The Board notes that no examination was conducted in this case nor is one warranted in conjunction with the service connection claim. In this regard, under 38 U.S.C.A. § 5103A(d), VA's duty to assist includes providing a claimant a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim and the claims file contains competent evidence that the claimant has a current disability and indicates that the disability may be associated with the claimant'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, 83 (2006). The Board finds that a VA examination and/or opinion is not necessary with respect to the claim decided herein as the Veteran does not have a current diagnosis related to the right eye or any lay or clinical report or documentation of symptoms indicative of a currently manifested right eye condition. Moreover, he has not provided any statements regarding his symptoms, and the medical evidence of record is unremarkable for any present complaints, treatment, or diagnoses referable to the claimed disability. Therefore, as there is no evidence of a current diagnosis or persistent or recurrent symptoms of the claimed disability, the Board finds that an examination and opinion are not warranted. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159 (c)(4); McLendon, supra; Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (discussing the circumstances when a VA examination and opinion are required). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran generally contends that he sustained a trauma to his right eye sometime during service; however, he has not provided any information regarding the nature of his in-service injury or his purported current disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), vacated in part and remanded on other grounds sub. nom. Sanchez-Benitez v. Principi, 239 F. 3d 1356 (Fed. Cir. 2001). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To the extent that the Veteran does not have a disease recognized as chronic under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology are inapplicable. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As indicated previously, the Veteran's complete service treatment records appear to be unavailable. In cases such as these, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule.38 U.S.C.A. § 5107(b); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). Moreover, 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 the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran's available service treatment records were negative for complaints, treatments or diagnoses related to the right eye. The Veteran denied having, or that he ever had, an eye disorder or trouble in November 2003. In an August 2004 Report of Medical Assessment, the Veteran indicated that he had not suffered from any injury or illness while on active duty for which he did not seek medical care. In the instant case, the probative evidence of record fails to demonstrate a current diagnosis of residuals of a right eye trauma at any point during the appeal period. While the Board has also considered the Court's holding in Romanowsky, supra, there is also no probative evidence of a recent diagnosis of disability prior to the Veteran's claim. In this regard, the Board notes that the Veteran is competent to report his own symptoms or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (the Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, matters of a medical diagnosis for disabilities not capable of lay observation, such as those at issue here, are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). In the instant case, there is no suggestion that the Veteran has had any medical training and he has reported working as a school security officer. Therefore, as the Veteran does not have the appropriate medical training and expertise to competently self-diagnose residuals of a right eye trauma, the lay assertions in this regard have no probative value. Jandreau, supra at 1377 n.4 ("[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Additionally, with respect to the Veteran's assertions that he experiences persistent or recurrent symptoms associated with residuals of a right eye trauma, the Board finds such statements to be not credible and, therefore, are assigned no probative value. 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). In the instant case, while the Veteran has asserted that his residual symptoms related to his in-service right eye trauma have limited his employment opportunities, he has also stated that he had not received treatment for such symptoms since service or described the nature of his purported right eye disability. Moreover, he denied having, or that he had ever had, an eye disorder or trouble in November 2003. In an August 2004 Report of Medical Assessment, the Veteran that he had not suffered from any injury or illness while on active duty for which he did not seek medical care. The Board notes that such statements were made during physical examinations of the Veteran, several years prior to the filing of the instant claim, and are highly probative. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); see also Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). While he has generally asserted experiencing symptomatology associated with such an in-service right eye trauma during the course of this appeal, such statements are inconsistent with the contemporaneous evidence of record and made in connection with his claim for VA benefits and, thus are deemed not credible. Therefore, the Veteran's current statements, made in connection with his pending claim for VA benefits, that he has a current disability of the right eye are inconsistent with the contemporaneous evidence and, therefore, are not credible. Consequently, the Board assigns no probative weight to such statements. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. Thus, where, as here, the probative evidence indicates that the Veteran does not have a current diagnosis of residuals of a right eye trauma for the entire appeal period, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for residuals of a right eye trauma. As such, that doctrine is not applicable in the instant appeals, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for residuals of right eye trauma is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs