Citation Nr: 1336476 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 10-22 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a right eye injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from July 1996 to July 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, denying service connection for a right eye injury. There is also an electronic paperless claims file (Virtual VA) associated with this case. This includes an April 2011 VA Eye Clinic note and an October 2013 Brief prepared by the Veteran's representative. These items have been reviewed and considered by the Board in formulating its decision. FINDING OF FACT The Veteran does not suffer from any current residuals of a right eye injury that manifested during, or as a result of, active military service, to include as due to injury related to metallic fragments. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for the residuals of a right eye injury have not been met. 38 C.F.R. §§ 3.303, 3.310, 4.9 (2013). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. A letter sent to the Veteran in April 2009 addressed all notice elements listed under 3.159(b)(1) and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received a VA medical examination in September 2009, and VA has obtained the associated report, as well as an April 2011 treatment note from the VA Eye Clinic in Branson, Missouri. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the 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). Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). In order to show a 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 fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). A recent decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Facts and Analysis The Veteran contends that he is entitled to service connection for a right eye condition. Specifically, the Veteran has argued that his right eye was injured during military service as a result of metal shards and that he now suffers from a partial loss of vision in the right eye. However, while the evidence of record supports that the Veteran sustained a right eye injury during military service in 1997, the preponderance of the evidence of record demonstrates that this injury did not result in any chronic residuals. In June 1997, the Veteran was seen with complaints of feeling like something was in his right eye. The Veteran denied any visual disturbances at this time. A small metallic foreign object was removed with a Q-Tip. A second imbedded foreign object could not be removed via this method, and the Veteran was transferred to the Naval Hospital in Guam. A treatment record prepared the following day indicates that the Veteran's right eye condition had resolved. Another June 1997 record reflects that the right eye visual acuity was 20/20. The service treatment records do not reflect further treatment of the right eye related to this incident. A number of subsequent records reflect complaints involving the left eye, including a "rust ring" and a foreign body removed in January 1998. However, there was no treatment regarding the right eye. According to a November 2000 in-service record, the Veteran had never worn glasses. The Veteran reported no visual symptomatology at this time, aside from "right eye fuzzy." Finally, while his May 2001 separation examination notes a visual acuity of 20/50 in the right eye, records fail to relate this to the incident of June 1997. The Veteran underwent a VA examination of the right eye in September 2009. The examiner noted that a review of the service records indicated that the Veteran had a corneal FB (foreign body) removed from the right eye in July 1997 that was noted to have healed without complication. FB was noted to have been about 4 o'clock outside the visual axis. Records also reflected a corneal FB was removed from the left eye in January 1998 and a rust ring was subsequently debrided in January 1998. This also healed without complication. There was no mention of visual problems at a November 2000 eye exam and the Veteran was diagnosed with mixed astigmatism and given glasses. The Board notes that the examiner also referenced a May 2009 eye examination that revealed a small corneal scar of the left eye and a diagnosis of astigmatism. Otherwise, the Veteran was in good ocular health. No such record is in fact contained within the Veteran's claims file. However, there is no evidence of prejudice to the Veteran as a result of this fact. Physical findings from September 2009 confirmed the presence of a left corneal scar and mixed astigmatism, bilaterally. Furthermore, a handwritten statement from June 2009 reflects that the previous examination of the right eye was negative, as the right eye injury was acute and had resolved. As such, there does not appear to be any additional relevant information to be gained by remanding this claim in search of a May 2009 report. Physical examination of the right eye in September 2009 revealed no diplopia and a funduscopic examination was deemed to be normal. There was also no evidence of a visual field defect. Distance visual acuity was 20/60 when uncorrected and 20/20 when corrected, while near visual acuity was 20/100 when uncorrected and 20/20 when corrected. Right eye slit lamp findings were normal and the eye lens was intact. No other lens abnormality was found and there were no physical findings of abnormal accommodation, abnormal lacrimal duct function, abnormal eyelid, chronic conjunctivitis, symblepharon, ptosis, nystagmus, eyelash loss or eyebrow loss. The examiner concluded that the Veteran's right eye injury had healed with no residual complications. The Veteran was diagnosed with refractive error (mixed astigmatism both eyes). The examiner opined that the Veteran's refractive error was not related to either of the injuries suffered while in service. While the record clearly reflected a metallic corneal foreign body in both eyes while in service, the current examination revealed no residuals to the right eye. The Veteran instead had normal visual acuity and normal visual fields through a moderate refractive error correction. Finally, the Veteran visited the VA eye clinic in April 2011. The Veteran reported that his vision was blurrier since his last evaluation. It was noted that the Veteran used glasses for using the television and the computer, but that he did not bring them with him to the evaluation. The Veteran was diagnosed with mild myopia with astigmatism in both eyes with corrected visual acuity of 20/20. No condition was diagnosed that was related to his in-service right eye injury. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for the residuals of a right eye injury. According to the September 2009 VA examiner, there was no evidence of a current disability of the right eye related to military service, as the Veteran's right eye injury of 1997 had healed without any residual complications. The Veteran has submitted no other competent evidence relating a current eye disability to his injury of 1997 or otherwise to his military service. The Board recognizes that the Veteran believes he suffers from a current eye disability of the right eye as a result of the injury of 1997. The Veteran has provided statements suggesting that he currently suffers from partial loss of vision in the right eye that requires he wear glasses because of this injury. At the outset, the Board notes that the record does not reflect that the Veteran has the requisite training or expertise to offer a medical opinion as complex as linking diminished vision to an injury of the eye many years earlier. Furthermore, the September 2009 VA examiner, who does have training, opined that the Veteran's refractive error was not related to injuries suffered in service, as current examination revealed no residuals to the right eye and the Veteran had normal visual acuity and normal visual fields through a moderate refractive error correction. Finally, 38 C.F.R. § 3.303(c) automatically excludes certain disorders from service connection. Thus, congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not "diseases or injuries" within the meaning of applicable legislation. Service connection can be established for a congenital or developmental "defect" if there is evidence of superimposed disease or injury during military service. VAOPGCPREC 82-90 (July 18, 1990). There is no such evidence in this case, and as such, service connection for a right eye condition is not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for the residuals of a right eye injury must be denied. ORDER The claim of entitlement to service connection for the residuals of a right eye injury is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs