Citation Nr: 1335011 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 09-46 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a bilateral eye disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1980 to April 1983, February 2003 to May 2003 and July 2006 to June 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. In the December 2009 substantive appeal, via a VA Form 9, the Veteran only perfected an appeal for the issue of service connection for loss of vision. See 38 C.F.R. § 20.200 (2013); Evans v. Shinseki, 25 Vet. App. 7 (2011). The issue of an increased rating in excess of 30 percent for sleep apnea has been raised by the record in a February 2010 VA Form 21-4138 and April 2011 VA Form 21-526b, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran has refractive error. 2. Cataracts are attributable to service. CONCLUSIONS OF LAW 1. Refractive error is not a disease or injury within the meaning of the law providing compensation benefits. 38 C.F.R. § 3.303 (2013). 2. Cataracts were incurred in wartime service. 38 U.S.C.A. § 1110 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties 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, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and 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). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a July 2008 letter. In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. 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. The United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the July 2008 letter 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. In connection with the claim on appeal, the evidence of record includes the Veteran's service treatment records, VA outpatient treatment records, Social Security Administration (SSA) records, statements from the Veteran, and VA examination reports dated August 2008 and April 2013. The VA examiners reviewed the Veteran's claims file and medical history and recorded pertinent examination findings. The April 2013 VA examiner also provided conclusion with supportive rationale. The Board notes that the April 2013 VA examination report is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, 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); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Laws and Regulations Under 38 C.F.R. § 3.303(a), service connection means that the facts, as shown by the evidence, establishes that a particular injury or disease was incurred coincident with service. It may be granting by affirmatively showing inception or aggravation during service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (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). Service connection may also be granted for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317(a)(1) (2013). The term "Persian Gulf Veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, to include Iraq. 38 C.F.R. § 3.317(e)(1), (2). The Persian Gulf War means the period beginning on August 2, 1990, and ending on the date thereafter prescribed by Presidential proclamation or by law. 38 U.S.C.A. § 101(33) (West 2002); 38 C.F.R. § 3.3(i) (2013). In this case, the Board finds that the Veteran is a Persian Gulf Veteran as his DD Form 214 reflects that he served in the Southwest Asia theater of operations, specifically Iraq, from September 2006 to April 2007. Nevertheless, as discussed below, the Veteran is currently diagnosed with bilateral incipient senile cataracts. This diagnosis is a known clinical diagnosis and, therefore, not a qualifying chronic disability. As such, the undiagnosed illness presumptive provisions of 38 U.S.C.A. § 1117 do not apply and other provisions of a qualifying chronic disability do not provide an exception for a diagnosed eye disability. The Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In the case of any veteran who engaged in combat with the enemy in active service and during a period of war, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002). Section 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996); see also Kessel v. West, 13 Vet. App. 9, 17-19 (1999). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis The Veteran contends that service connection is warranted for a bilateral eye disability because his cataracts are a result of the improvised explosive device (IED) blast he suffered while serving on active duty in Iraq. At the outset, the Board finds the Veteran's combat status is evidenced by receipt of the Combat Action Badge (CAB) and active service in the Southwest Asia theater of operations during the Persian Gulf War from September 2006 to April 2007. Given the Veteran's combat status, the Board will resolve all reasonable doubt in favor of the Veteran to find that an in-service occurrence of an IED blast, as reported by the Veteran, is consistent with the circumstances, conditions, or hardships of such service actually occurred. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Moreover, review of the service treatment records reveal the March 2007 incident in which, the Veteran's vehicle was hit with an IED while on patrol in Iraq. The nature and extent of his injuries listed low back pain, numbness of the left leg, and bilateral auditory deficits. Upon examination in August 2007, the Veteran referred to seeing some visual field things with general loss of vision, and the physician assessed the Veteran with some visual disturbances. In light of the Veteran's combat status, for direct service connection, the evidence as to each claimed disorder must still show a current disability and a nexus between that disability and those service events. See Gregory, 8 Vet. App. at 567; see also Kessel, 13 Vet. App. at 17-19. The Veteran has been diagnosed with bilateral incipient senile cataracts by the August 2008 and April 2013 VA examiners. The August 2008 VA examiner also diagnosed the Veteran with refractive error (hypermetropia, astigmatism, presbyopia). In view of the fact that the appellant voiced visual complaints during service, filed a claim immediately after separation and that cataracts were identified mere weeks after service, we conclude that the evidence supports the claim and that the cataracts were incurred in wartime service. The record also establishes that refractive error has been diagnosed. However, refractive error is not a disease or injury within the meaning of the law providing compensation benefits. Therefore service connection is denied as a matter of law. In March 2010, the Veteran underwent a VA examination in connection with his claim for service connection for traumatic brain injury due to the March 2007 IED blast. The examiner noted the Veteran's medical history included "visual problems despite corrective glasses." Following the clinical examination, there were no physical findings of vision problems related to the in-service event. Following the April 2013 VA DBQ examination for eye conditions, the examiner concluded in a medical opinion that the Veteran's current eye disorder is not related to his IED event during active service. It was explained that: As the lens ages, its weight and thickness increases while its accommodative power decreases. Nuclear sclerosis is the yellowing and hardening of the central portion of the crystalline lens and it occurs slowly over the years. The senile cataracts in this 61 year old male are consistent with these age related lens changes. There is no evidence of trauma to the eyes nor history of direct ocular trauma. Statement of medical examination and duty status of IED blast incident does not include eyes in the nature and extent of disease nor complaints. The April 2013 VA DBQ medical opinion was rendered after a review of the claims file and thorough examination of the Veteran's eyes with pertinent findings noted in the report. The examiner specifically noted the service treatment record that documented the Veteran's trauma while in service from an IED blast in March 2007. The opinion is also supported with sufficient rationale and based on an accurate factual history. As a result, the Board finds this opinion is adequate and of probative value against the Veteran's claim on appeal. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). In making all determinations, the Board must consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). During the course of this appeal, the Veteran complained at the August 2008 VA eye examination of blurred vision at distance since explosion with a loss of conscience while in Iraq in March 2007. On the December 2009 substantive appeal, via a VA Form 9, he also reported that his loss of vision is related to the IED blast that he suffered in Iraq that caused his brain injury. The Board finds that the most probative evidence regarding a nexus between the current bilateral eye disorder and in-service injury is the April 2013 VA DBQ medical opinion, which, as noted above, did not etiologically relate any pathology to the in-service event. The Board acknowledges the Veteran is competent to report symptoms that one experiences as it comes through the use of one's senses. See Layno, 6 Vet. App. at 470. However, in this case he is not competent to establish the competing causes of his eye pathology. The question of causation, in this case, involves a complex medical issue that the Veteran is not competent to address (such as how his current bilateral eye disability began from age). See Jandreau, 492 F.3d at 1376-77. The Board has considered the provisions of 38 U.S.C.A. § 1154(b); accepts that he had in-service trauma and that he had vision problems in-service. However, the medical evidence establishes that neither pathology (cataracts or refractive error) is due to the combat event. The Board has granted service connection for the cataracts on another theory. However, to the extent that service connection for refractive error is sought on the basis of combat, the claim must fail. Lastly, since each condition has been diagnosed, the provisions relating to Gulf War illness do not apply. To the extent possible, the benefit sought on appeal has been granted. ORDER Service connection for refractive error is denied. Service connection for cataracts is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs