Citation Nr: 1611125 Decision Date: 03/18/16 Archive Date: 03/23/16 DOCKET NO. 11-03 781 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for an eye disorder (other than a left pterygium), to include refractive error. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his interpreter ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran was born in May 1957 and served in the Army National Guard. He had a period of active duty for training (ACDUTRA) from August 1978 to February 1979. This case was previously before the Board of Veterans' Appeals (Board) in January 2015. The Board granted the Veteran's claim of service connection for a left pterygium. There was also an issue of service connection for an eye disability, including refractive error, which the Board remanded for further development. Following the requested development, the RO confirmed and continued its denial of entitlement to service connection for an eye disorder, other than a left pterygium. Thereafter, the case was returned to the Board for further appellate action. In November 2012, during the course of the appeal, the Veteran had a hearing at the RO before the Veterans Law Judge whose signature appears at the end of this decision. FINDINGS OF FACT 1. The Veteran's refractive error is contemplated by the rating for his service-connected pterygium of the left eye. 2. The presence of chronic, identifiable conjunctivitis has not been established. 3. Eye disorders, diagnosed as ischemic optic neuropathy, presbyopia, senile macular changes, and a temporal pinguecula of the right eye, were first manifested many years after service, and the preponderance of the evidence is against a finding that any are in any way related thereto. 4. The preponderance of the evidence is against a finding that the Veteran's arcus is in any way related to his period of ACDUTRA. CONCLUSION OF LAW Other than the service-connected left pterygium, the claimed eye disorder is not the result of disease or injury incurred in service. 38 U.S.C.A. § 1131, 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VA's Duties to Notify and Assist Prior to consideration of the merits of the appeal, the Board must determine whether the VA has met its statutory duty to notify and assist the Veteran in the development of his claim of entitlement to service connection for an eye disability to include refractive error. After reviewing the record, the Board finds that the VA has met that duty. After the claim was received, the RO advised the Veteran by letter of the elements of service connection and informed him of his and the VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim. The duty to notify is satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman, 19 Vet. App. 473 (2006). The VA's duty to assist includes helping claimants to obtain the evidence necessary to substantiate their claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records; records reflecting his VA treatment from February 2010 through October 2013; his Social Security records; and the transcript of his hearing before the undersigned Veterans Law Judge. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c). The hearing transcript shows that the Veterans Law Judge explained the issues fully and suggested the submission of evidence that the claimant may have overlooked and that would be advantageous to his position. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). As such, the conduct of the hearing was performed in accordance with the provisions of 38 C.F.R. § 3.103(c)(2). Therefore, there was no prejudice to the Veteran's claim as a result of the conduct of that hearing. See Bryant, 23 Vet. App. at 498 (citing 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). The VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Appropriate VA medical inquiry was accomplished in February 2010 and May 2015. It is factually informed, medically competent and responsive to the issues under consideration. Monzingo v Shinseki, 26 Vet. App. 97 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. Analysis In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A. "), regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R. ") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir. ") and the Court of Appeals for Veterans Claims as noted by citations to "Vet. App. ") The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d), see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999), Gilbert v. Derwinski, 1 Vet.App. 49, 56, 57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). Active military service includes active duty, ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 C.F.R. § 3.6(a) (2015). In addition, the applicable law and regulations permit service connection 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). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the Board first determines whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) A layperson is competent to identify the medical condition (i.e., when 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); (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 (Fed. Cir. 2007). The Veteran is competent to give testimony about what he experienced during and after his separation from the service. For example, he is competent to report that he first experienced eye pain in service and that it has been present since that time. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, there is no evidence to suggest that he is competent by training or experience to diagnose any pathology causing that pain. The question of an etiologic relationship between an injury or disease and the development of a chronic, residual disorder involves a medical issue. Thus, the question of etiology in this case may not be competently addressed by lay evidence. See Davidson, 581 F.3d at 1316. Further, the Veteran has not reported having a diagnosis in service, nor is there evidence of his symptoms supporting a later diagnosis of an inservice disorder. Not only is there no evidence of a nexus between a current eye disorder (other than a left pterygium) and his period of service; it is contradicted by more contemporaneous, probative, and accurate evidence of record. Curry v. Brown, 7 Vet. App. 59 (1994) (Contemporaneous evidence has greater probative weight than a history reported by the Veteran.). Indeed, the Veteran's lay assertions have been investigated by competent medical examination and found not supportable. Jandreau, 492 F.3d at 1376-77. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67 (1997). In weighing credibility, the 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). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, supra. In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999); Evans v. West, 12 Vet. App. 22 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30 (1993). During his November 2012 hearing, the Veteran testified that in service he had experienced decreased visual acuity and red, swollen eyes, primarily as the result of firing weapons. He stated that those symptoms had been present since service and maintained that service connection was warranted for the underlying eye disorder. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. In May 2015, the RO assigned an initial 10 percent schedular rating for the Veteran's service-connected pterygium of the left eye. That rating contemplated the Veteran's impaired visual acuity, essentially his refractive error. 38 C.F.R. § 4.79, Diagnostic Code 6066 (2015). To rate his refractive error for a second, distinct disability, would constitute the prohibited practice of pyramiding. Pyramiding is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes. 38 C.F.R. § 4.14 (2015). Accordingly, further discussion of service connection for refractive error would be of no force or effect in the resolution of the appeal. However, that does not end the inquiry. The Veteran seeks service connection for an eye disorder other than refractive error or a left pterygium During his May 1978 service entrance examination, the Veteran responded "No", when asked if he then had, or had ever had, eye trouble. He did demonstrate mild refractive error at 20/25, bilaterally. Otherwise, his eyes, ophthalmoscopic processes, pupils, and ocular motility were normal. Except for the refractive error, the Veteran's eyes were presumed to be in sound condition at the time he entered service. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2015). During ACDUTRA in September and October 1979, the Veteran demonstrated conjunctivitis and arcus juvenilis, respectively. While the conjunctivitis was reportedly chronic in nature, there were no further reports of that disorder in or after service. Absent current evidence of chronic, identifiable conjunctivitis, the Veteran does not meet the criteria for service connection. Accordingly, service connection is not warranted for that disorder. In February 2010, the Veteran was examined by a VA optometrist to determine the nature and etiology of any eye disorder found to be present. Following the examination and a review of the Veteran's claims file, the diagnoses were senile macular degeneration and hyperopic presbyopia. By its very definition, senile macular changes pertain to or are characteristic of old age. Dorland's Illustrated Medical Dictionary 1691 (32d ed. 2012). Similarly, presbyopia is a visual condition that becomes apparent especially in middle age. McNeely v. Principi, 3 Vet. App. 357, 364 (1992). The examiner opined that it was unlikely (less than 50% probability) that either of these disorders was caused by military service. More recent evidence, such as treatment reports from the VA Optometry Service, dated in August and October 2012 show that the Veteran has a temporal pinguecula of the right eye, arcus of both eyes, hyperopic compound astigmatism, and age-related macular degeneration. Therefore, in May 2015, the Veteran was examined by a different VA optometrist to determine the nature and etiology of any eye disorder found to be present. The examining VA optometrist did not report the presence of arcus or a pinguecula. The VA examiner did note the presence of ischemic optic neuropathy, possibly due to giant cell arteritis, senile macular changes and chronic hyperopic astigmatism with presbyopia. The VA examiner found that the Veteran had no eye conditions superimposed or record of any injury during his ACDUTRA that resulted in disability. The VA optometrist concurred with the February 2010 VA examiner that the claimed conditions were less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service. Absent competent evidence of a nexus between a chronic, identifiable eye disability and service, (other than the left pterygium), the Veteran does not meet the criteria for service connection. Accordingly, service connection for an eye disability other than the left pterygium is not warranted, and the appeal is denied. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claims. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). ORDER Service connection for an eye disorder, other than a left pterygium is denied ____________________________________________ D. C. SPICKLER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs