Citation Nr: 1436637	
Decision Date: 08/15/14    Archive Date: 08/20/14

DOCKET NO.  11-31 336	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1. Entitlement to service connection for an eye disability resulting in poor vision.

2. Entitlement to special monthly pension (SMP) based on the need for regular aid and attendance of another person or by reason of being housebound.


ATTORNEY FOR THE BOARD

Christopher Murray, Counsel










INTRODUCTION

The Veteran had active military service from February 1986 to February 1991.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

The Veteran's requested Board hearing was scheduled to be conducted in November 2013.  However, he failed to report to the scheduled Board hearing and has not provided good cause for doing so.  The Veteran's request for a Board hearing is considered withdrawn, and the Board will proceed with consideration of the appeal.  See 38 C.F.R. § 20.702(d) (2013).

The issue of entitlement to SMP is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

A chronic eye disability did not manifest in active service, and any current eye disability resulting in impaired vision is not otherwise etiologically related to such service.


CONCLUSION OF LAW

A chronic eye disability was not incurred in or aggravated by active duty service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).




REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

VA provided the Veteran a notice letter in July 2010 that fully addressed all notice elements.  This letter informed the Veteran of what evidence was required to substantiate his underlying claim of service connection, and of the Veteran's and VA's respective duties for obtaining evidence.  The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond.  

The Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters.

VA must also make reasonable efforts to assist the appellant 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 claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013).

Service treatment records are associated with claims file.  All available post-service treatment records identified by the Veteran have also been obtained.  The Board acknowledges that records related to the Veteran's Social Security Administration (SSA) disability claim have not been obtained.  However, as discussed below, there is no evidence, nor assertion by the Veteran, that these missing records would indicate a relation between the Veteran's current impaired vision and his active service.  As such, the absence of these records is not prejudicial to the adjudication of the claim decided herein.  The Veteran has not identified any additional records that should be obtained prior to a Board decision.  Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied.  See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159(c)(4) (2013); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  

A VA examination was not provided in conjunction with the Veteran's service connection claim, and the Board notes that the evidence of record does not warrant one.  See 38 C.F.R. § 3.159(c)(4).  VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease.  Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In the present case, there is no competent and credible evidence in the record that the Veteran's eye disability manifested by blurred vision is etiologically related to his active service.  The elements of McLendon have not been satisfied.  Therefore, VA is not required to provide the Veteran with a VA examination in conjunction with this claim.

In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.

Analysis

Board decisions must be based on the entire record, with consideration of all the evidence.  38 U.S.C.A. § 7104.  The Board must address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

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).  As the Veteran's claimed disability is not listed under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) as they pertain to continuity of symptomatology do not apply in the instant case.

The Veteran claims entitlement to service connection for an eye disability, manifested by severely blurred vision to the point of legal blindness.  While the evidence reveals that the Veteran currently suffers from severely impaired vision and loss of vision field, the competent, probative evidence of record does not etiologically link the Veteran's current disability to his service or any incident therein.  

Service treatment records are absent a diagnosis of, or treatment for, any eye disability during active service.  Indeed, the Veteran does not allege he received any such treatment or suffered from such symptoms during service.  As such, the Board finds the Veteran did not suffer a chronic eye disability during active service.

Post-service treatment records indicate the Veteran first began to suffer from poor vision following a gunshot accident in August 2000, approximately nine years following service separation.  See, e.g., Southern College of Optometry treatment records.  The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc).

Furthermore, the Board observes the Veteran has not submitted a competent medical opinion in support of his claim to link his current eye disability to his period of active service.  As noted above, private treatment records indicate the Veteran's current poor vision is directly related to a post-service gunshot wound sustained in August 2000.  Indeed, the Veteran himself reported that his disability did not begin until approximately 1999.  See July 2010 VA Form 21-526.  

The Board acknowledges that the Veteran himself has claimed that he suffers from an eye disability as directly related to his active service.  However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., poor vision; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition.  See Davidson v. Shinseki, 581 F.3d 1313 (2009).  Consequently, the Veteran's lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection.  Latham v. Brown, 7 Vet. App. 359, 365 (1995).

In sum, the Board finds that there is no evidence of a chronic eye disability in service.  The threshold question therefore is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current disability and his period of active service.  The preponderance of the evidence is against this aspect of the Veteran's claim.  The Veteran has produced no competent evidence or medical opinion in support of his claim; the length of time between his active service and current treatment and diagnosis weighs against granting the Veteran's claim.  In addition, private treatment records relate the Veteran's poor vision to a post-service gunshot accident.  

Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for an eye disability, and the benefit of the doubt rule does not apply.  See 38 U.S.C.A. § 5107 (West 2002).


ORDER

Service connection for an eye disability is denied.


REMAND

The Veteran was scheduled for a VA aid and attendance examination in July 2013.  While he did not report to this examination, a June 19, 2013, Report of General Information notes the Veteran requested the July 2013 VA examination to be rescheduled due to him being out of town.  To date, this examination has not yet been rescheduled.

The record indicates the Veteran in receipt of SSA disability benefits.  The Board notes that these records have not yet been obtained and may pertain directly to the Veteran's claim of increased pension benefits based on the need for aid and attendance or on account of being housebound.  In order to ensure that the appellant's claim is adjudicated on the basis of a complete evidentiary record, the SSA award letter and any accompanying medical evidence should therefore be obtained.  See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also 38 C.F.R. § 3.159(c)(2).

Accordingly, the case is REMANDED for the following action:

1. Any determination pertinent to the Veteran's claim for SSA benefits should be requested and obtained.  All efforts to obtain such records must be documented and associated with the claims file.  VA must attempt to obtain records from a Federal department agency until it is reasonably certain that the records do not exist or that any further efforts to obtain the records would be futile.  38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(e)(1).

2. Schedule the Veteran for a VA aid and attendance/housebound examination.  The Veteran should be notified of the date and time of the examination, and such notice should be associated with the claims file.  The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination.  Any necessary testing should be accomplished.  

Following a review of the claims file, the examiner should address whether the Veteran's disabilities result in any of the following:

a. Blindness or near blindness so as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; 

b. An inability to dress or undress himself, or to keep himself ordinarily clean and presentable;

c. Frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid;

d. Inability to feed himself through loss of coordination of upper extremities or through extreme weakness;

e. Inability to attend to the wants of nature; or

f. Incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment.

The examiner should also address whether it is at least as likely as not (50 percent or greater probability) that the Veteran is permanently housebound by reason of disability or disabilities.  This requirement is met when the appellant is substantially confined to his dwelling and the immediate premises on account of disability and it is certain that the disability or disabilities and resultant confinement will continue throughout his lifetime.

A full rationale must be provided for all opinions expressed.

3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence.  If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative, if any, should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response.   

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).




______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs