Citation Nr: 1615087	
Decision Date: 04/13/16    Archive Date: 04/26/16

DOCKET NO.  14-31 068A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for a bilateral eye disorder, to include blindness, macular degeneration, retinopathy, glaucoma, central retinal vein occlusion, pseudophakia, and absence of an eye.


REPRESENTATION

Veteran represented by:	Blinded Veterans Association


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

D. Cherry, Counsel


INTRODUCTION

The Veteran served on active duty from September 1943 to March 1946. 

This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.

In September 2015, the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge.

In October 2015, the Board remanded the claims of service connection for an eye disorder and an acquired psychiatric disorder for further development.  In a December 2015 rating decision, the Appeals Management Center (AMC) granted service connection for posttraumatic stress disorder and assigned a 50 percent disability rating.  Therefore, the issue of entitlement to service connection for an acquired psychiatric disorder is no longer before the Board.

In an April 2016 informal hearing presentation, the representative cited medical treatise information not previously considered by the agency of original jurisdiction.  In this case, the Veteran filed his substantive appeal in September 2014.  38 U.S.C.A. § 7105(e)  provides that waiver of initial RO review of evidence submitted to the RO or the Board by the claimant or his representative is presumed in cases when the substantive appeal was filed after February 2, 2013.  See 38 U.S.C.A. § 7105(e) (West 2014); VA Fast Letter 14-02 (May 2, 2014).  Thus, given the date of the substantive appeal, waiver of RO review is presumed.

As noted by the Board in its October 2015 remand, the claim for service connection for a bilateral eye disorder, includes blindness, macular degeneration, retinopathy, and glaucoma.  A November 2015 VA examination report reflects that there are additional diagnoses of central retinal vein occlusion, pseudophakia, and absence of an eye.  Pursuant to Clemons v. Shinseki, 22 Vet. App.128 (2009), the issues of entitlement to service connection for central retinal vein occlusion, pseudophakia, and absence of an eye are part of the issue on appeal regarding the bilateral eye disorder.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The weight of the evidence is against findings that a disorder of either eye was demonstrated in service and that there is a nexus between the current diagnosis of a disorder of either eye and service, to include the in-service eye injury.


CONCLUSION OF LAW

A disorder of either eye was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

The requirements of the 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in February 2013 and October 2015 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.  In the February 2013 letter, VA notified the appellant of how VA determines the disability rating and effective date.  The claim was most recently readjudicated in a December 2015 supplemental statement of the case.

VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording a VA examination.  The RO obtained the service and VA treatment records, to include VA treatment records pursuant to the October 2015 remand.  

The Veteran authorized the release of private treatment records from the 1970s to VA, but in August 2015 he asked VA to cease any attempts to obtain such records because these records may not be available and because requests for these records would delay the adjudication of his claim.

The Social Security Administration records are unavailable.  VA has a heightened duty to assist the appellant in developing her claim since government records may have been lost.  O'Hare v. Derwinski, 1 Vet. App. 365 (1991).  The case law does not, however, lower the legal standard for proving a claim for service connection but, rather, increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant.  See Russo v. Brown, 9 Vet. App. 46, 51 (1996).

Pursuant to the October 2015 remand, the RO afforded the Veteran a VA examination in November 2015.  The Board finds that the examination is adequate to satisfy VA's duty to assist in that it was based on a thorough review of the record, consideration of the Veteran's contentions, and a supportable rationale.  Although the VA examiner's opinion was ill-phrased in addressing whether it is as likely as not (50 percent or greater probability) that a current eye disorder is related to active service, including the in-service eye injury, as discussed in further detail below, the basis of the opinion makes it clear that the examiner was rendering a negative medical nexus opinion.

In light of the above, the AMC complied with the directives of the Board remand.  Stegall v. West, 11 Vet. App. 268 (1998).



Governing law and regulations

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 

Service connection may also be warranted 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).

In order to establish service connection for a claimed disorder, there must be (1) 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) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service.  38 C.F.R. § 3.303(b).

The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury.  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 veteran's claim.  See 38 C.F.R. § 3.303(b).

The chronicity provision of 38 C.F.R. § 3.303(b) applies when evidence, regardless of its date, establishes that a veteran had a chronic condition in service and still has that condition.  There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence.

Analysis

The medical evidence shows diagnoses of blindness, macular degeneration, retinopathy, glaucoma, central retinal vein occlusion, pseudophakia, and absence of an eye.  Therefore, Hickson element (1), current disability, is established.

Turning to Hickson element (2), in-service disease or injury, the service treatment records do not show a disorder of either eye was demonstrated in service.  At a September 1943 entrance examination, the eyes were normal.  Color perception was normal, and vision was 20/20 bilaterally.  Service treatment records do not show any treatment for an eye disorder or injury.  At a March 1946 separation examination, the pupils were normal.  Vision was 20/20 bilaterally, and color perception was good.  

The Veteran asserts that he injured his eyes in a combat-related explosion on his ship when his ship was attacked by Japanese aircraft.  His service personnel records reflect that his ship participated in two invasions in 1945.  Therefore, the Veteran engaged in combat with the enemy.  He is competent to report this injury, and the Board finds him credible.  Thus, Hickson element (2) as to in-service injury is satisfied.

Turning to Hickson element (3), medical nexus, VA medical records reflect that the Veteran's treating VA ophthalmologist opined in September 2015 that it is not likely that trauma is the cause of his glaucoma.  The ophthalmologist noted that the Veteran has had other causes for his loss of vision including vascular occlusion and macular degeneration.

The November 2015 VA examiner's opinion was ill-phrased in addressing whether it is as likely as not (50 percent or greater probability) that a current eye disorder is related to active service, including the in-service eye injury.  The basis of the opinion, however, makes it clear that the examiner was rendering a negative medical nexus opinion.  The VA examiner, an optometrist, in essence opined that it is not as likely as not (50 percent or greater probability) that any current eye disorder is related to his active service, including the in-service eye injury.  The examiner's basis was that the Veteran's visual acuity in March 1946 was listed as 20/20 in both eyes and that all his eye disorders apparently started in 1974 after a central retinal vein occlusion in the right eye.  The examiner stated that he is in agreement with the opinion of the Veteran's treating ophthalmologist.

A September 2015 VA treatment record reveals that the Veteran reported to his primary-care treating physician that his eye issues are the result of his in-service combat injury.  This notation is clearly history given by the Veteran.  This negates the probative value because a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional.  LeShore v. Brown, 8 Vet. App. 406, 409 (1995).

The Veteran and his representative have submitted medical treatise information relating glaucoma to an eye trauma and head injuries and indicating that glaucoma can manifest itself years after the eye trauma causing the disorder.  The United States Court of Appeals for Veterans Claims (the Court) has held that "[g]enerally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive." Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)).  The Court has, however, also held that medical treatise evidence "standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion."  Wallin v. West, 11 Vet. App. 509, 514 (1998) (citing Sacks, 11 Vet. App. at 317).  The United States Court of Appeals for Federal Circuit (the Federal Circuit) held that "[a] veteran with a competent medical diagnosis of a current disorder may invoke an accepted medical treatise in order to establish the required nexus; in an appropriate case it should not be necessary to obtain the services of medical personnel to show how the treatise applies to his [or her] case."  Hensley v. West, 212 F.3d 1255, 1265 (2000).  The Board places greater weight on the opinions of the VA treating ophthalmologist and the VA examiner than on the medical treatise information because the medical personnel addressed the Veteran's specific eye trauma and medical history and provided thorough bases for the opinions.

The Board notes that the Veteran has not alleged continuity of symptomatology.  Instead, he alleges that his post-service glaucoma and other eye disorders are related to the in-service eye injury.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the relationship between any of the following -  blindness, macular degeneration, retinopathy, glaucoma, central retinal vein occlusion, pseudophakia, and absence of an eye - and his in-service eye injury falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1,372, 1,733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).

In summary, for the reasons and bases set forth above, the Board concludes that the weight of the evidence is against findings that a disorder of either eye was demonstrated in service and that there is a nexus between the current diagnosis of a disorder of either eye and service, to include the in-service eye injury.  Therefore, the preponderance of the evidence is against the claim and it is denied.


ORDER

Entitlement to service connection for a bilateral eye disorder, to include blindness, macular degeneration, retinopathy, glaucoma, central retinal vein occlusion, pseudophakia, and absence of an eye, is denied.



____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs