Citation Nr: 1342846 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-22 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for diplopia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from October 1956 to August 1960 and from August 1960 to August 1963. This case comes before the Board of Veterans' Appeals (Board) on appeal from March and August 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran provided testimony before the undersigned during a hearing at the RO in June 2013. A transcript is of record. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The relevant records have been reviewed. FINDING OF FACT Diplopia was first demonstrated long after service and is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for diplopia have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013) redefined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also 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 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 a letter issued in December 2008, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provided ratings based on the rating schedule and was given examples of the evidence he could submit. The Veteran has substantiated his status as a veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims, by the December 2008 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records from various federal agencies, and private medical records. Additionally, the Veteran was provided a proper VA TBI and eye examination in January and February 2013 in connection with his claim for service connection. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the January and February 2013 VA examinations and medical opinions obtained in this case are more than adequate, as they are predicated on a full reading of the service treatment records as well as the private and VA medical records contained in the Veteran's claims file. The examiners considered all of the pertinent evidence of record, to include the statements of the appellant, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the diplopia issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). During the June 2013 Board hearing and prehearing conference, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the issues on appeal. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Service Connection for Diplopia Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may also be granted for a disease first 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he incurred diplopia as a result of a traumatic brain injury, which was the result of a parachute jump accident during service. VA treatment records demonstrate a diagnosis of diplopia as well as left fourth cranial nerve (CNIV) palsy vs. decompensated congenital palsy. The Veteran reported during the Board hearing that during an in-service parachute jump, he fell about 50 feet to the ground without a parachute and lost consciousness for about 10 minutes. Service treatment records do not demonstrate treatment for a head injury or any diagnoses or symptoms of an eye disability. They do show that the Veteran reported a parachute injury during a January 1961 examination but only listed pain in the right thigh and hip as residuals. A report of medical history provided that month did not indicate any eye-related symptoms. In May 1961, the Veteran complained of headaches but did not report any eye symptoms. The impression at that time was of anxiety dissociation reaction. A July 1963 separation report of medical history did not include any complaints of eye trouble or symptoms. Following service, the Veteran submitted claims for service connection for other disabilities, such as a heart disability and a nervous condition, without any reports or evidence of diplopia or an eye disability. VA and private treatment dated during the 1990s also does not contain any indication of an eye disability despite treatment of several other conditions. The first evidence of diplopia came during treatment in 2007, more than 40 years post-discharge. A July 2008 record noted that the Veteran was a "poor historian," could not recall a clear etiology of diplopia, and reported that it began in his 50's and has become progressively worse. He denied any history of trauma. During the Board hearing, the Veteran stated that he had just forgotten about the in-service head injury at that time. During the hearing, the Veteran described the in-service head injury and stated that he did not immediately seek treatment because he was young and thought he could keep going without it. He stated that later he developed diplopia, which he dealt with by shifting his head to the side. However, he did not state that the diplopia developed during service. The Veteran received a VA TBI examination in January 2013, where he reported the in-service head injury but stated that he did not experience any change in eyesight at that time. He also stated that his diplopia had onset four to five years before the examination. He denied any other head injury but reported that he had had a double bypass in 1972 and had a stent placed four to five years before the examination. The examiner noted that there were no complaints of diplopia at the time of the head injury in the early 1960s until 2007, according to the Veteran's medical records. From 2007, his diplopia has gotten progressively worse. The examiner concluded based the progression of the disability that the Veteran's diplopia was more likely to be due to a decompensated congenital amblyopia that has increased slowly with aging rather than due to an acute deficit from a single head injury. The examiner further stated that there were no other related disabilities resulting from the in-service head injury. The Veteran received a VA eye examination in February 2013, where the claims file and his statements regarding the in-service injury were reviewed again. The examiner stated that the Veteran had vertical diplopia, correctable with prismatic spectacle correction. The etiology was attributable to ocular binocular alignment deficits, most likely related to the fourth cranial nerve. However, the examiner stated that the exact underlying etiology was uncertain, as to whether this would be a true acquired paresis or a decompensated phoria. It was possible, the examiner opined, that the a fourth cranial nerve paresis could be attributable to the reported trauma; however, the decompensated phoria would be a normal aging change (i.e. congenital) of the binocular system over time. Thus, the examiner stated that it was difficult to determine if the reported head trauma was contributory to the diplopia and, as such, deferred to the TBI examiner's opinion with respect to the underlying etiology. The Board concludes that the weight of the evidence is against a finding of service connection for diplopia. The disability was not noted during service, even though the Veteran reported other symptoms related to the head injury. The first evidence of diplopia came more than 40 years after service, despite the fact that the Veteran was treated for, and even filed for VA benefits for other disabilities. The Veteran reported in 2008 that he could not recall the exact onset of diplopia and, he did not report during the Board hearing that diplopia started during service. Moreover, during the January 2013 VA TBI examination, he reported the onset of diplopia to be four to five years prior and stated that he did not experience any change in eyesight at the time of the in-service head injury. Given the lack of medical evidence in support of the claim and the absence of consistent reports of onset during service, the evidence is against a finding of a nexus between the Veteran's current diplopia and in-service head injury. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for diplopia is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs