Citation Nr: 1629542	
Decision Date: 07/25/16    Archive Date: 08/04/16

DOCKET NO.  10-45 325	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for a bilateral eye disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. McPhaull, Counsel

INTRODUCTION

The Veteran served on active duty from September 1980 to September 1984, with additional service in the National Guard. 

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia that denied reopening the Veteran's bilateral eye disorder claim. 

In his November 2010 substantive appeal, the Veteran requested a hearing at the local VA office before a Veterans Law Judge.  A hearing was scheduled for November 2011 at the Roanoke Regional Office.  The Veteran failed to appear for the hearing.  In March 2012, the Veteran submitted a statement requesting a videoconference hearing in Hampton, Virginia.  

If a claimant (or when a hearing only for oral argument by a representative has been authorized, the representative) fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn.  No further request for a hearing will be granted in the same appeal unless such failure to appeal was with "good cause" and arose under such circumstances that a timely request for postponement could not have been submitted prior to the scheduled hearing date.  38 C.F.R. § 20.704(d) (2015).  A motion for a new hearing date following a failure to appear for a scheduled hearing must be filed within 15 days of the originally scheduled hearing date, and must explain why the appellant failed to appear for the hearing and why a timely request for a new hearing date could have not been submitted.  

The Veteran's motion for a new hearing is untimely; it was submitted more than three months after the scheduled hearing.  Furthermore, the motion does not set forth "good cause" for his failure to appear which arose under such circumstances that a timely postponement request could not have been submitted.  The Veteran contends that he was unable to attend the scheduled hearing "due to [his] blindness."  The Board notes, however, he does not explain why his condition prevented him from submitting a timely hearing request.  Accordingly, this matter will be processed as though his hearing request had been withdrawn.  38 C.F.R. § 20.704(d).

In July 2014, the Board found that new and material evidence had been submitted sufficient to reopen the claim for entitlement to service connection for a bilateral eye disability.  The Board remanded the reopened claim for further development, and the case has since been returned to the Board for appellate review.

This appeal is processed utilizing the Virtual VA and Veterans Benefits Management System (VBMS) electronic systems.

As a final preliminary matter, the Board notes that, in the October 2014 VA examination report, the examiner notes a scar over the Veteran's left eyebrow.  The Veteran contends that he was punched in the left eye while on active duty, and his eyelid became swollen.  He indicated that he has scar tissue around the left eye and experiences spasms of the eyelid.  Such appears to raise a service connection claim for residuals of an in-service left eye injury.  As this matter has not been adjudicated by the agency of original jurisdiction (AOJ), the Board does not have jurisdiction such issue, and it is referred to the AOJ for appropriate action.  See 38 C.F.R. § 19.9(b) (2015).


FINDING OF FACT

The most probative evidence of record is against a finding that the Veteran's current bilateral eye disorder was incurred in or aggravated by service.


CONCLUSION OF LAW

The criteria for service connection for a bilateral eye disorder are not met.  38 U.S.C.A. §§ 1131, 5107 (West 2015); 38 C.F.R. §§ 3.303, 3.304, 4.9 (2015).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to notify and assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Analysis

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

The Veteran asserts that he sustained an injury to his eye after being attacked in service and he attributes his current bilateral eye disability to the in-service attack.  The Board observes that the medical evidence establishes that the Veteran has retinitis pigmentosa, which is a congenital disorder.

Congenital or developmental defects are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes.  See 38 C.F.R. §§ 3.303(c), 4.9.  Nevertheless, service connection may be granted due to aggravation of a congenital or developmental defect by a superimposed disease or injury.  See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240 (1995); Monroe v. Brown, 4 Vet. App. 513 (1993).  Further, service connection for a disease (as opposed to a defect) of congenital or familial (hereditary) origin may be granted if the disease did not manifest until after entry into service or was aggravated during service beyond its natural progression.  VAOGC 8-88 (Sept. 29, 1988) (reissued as VAOPGCPREC 67-90 (July 18, 1990); VAOPGCPREC 11-1999 (Sept. 2, 1999).  The presumption of soundness applies to a congenital disease but not to a congenital defect.  Quirin v. Shinseki, 22 Vet. App 390 (2009).

The Veteran's service treatment records document no complaints of or treatment for an eye disorder or an eye injury, to include retinitis pigmentosa.  

Post-service treatment records document the earliest treatment for any eye complaints was in November 1986, about two years after service separation.  At that time the Veteran reported he woke up with his eyelids swollen and stuck together.  The Veteran reported that he was told he had a wrinkled retina.  Subsequent treatment records document retinitis pigmentosa.

Bilateral retinitis pigmentosa was the only diagnosis made when the Veteran was given a VA eye examination in October 2014. .  Following a review of the claims file, the examiner noted that the eye disease did not exist prior to service noting that this condition is an inherited and degenerative eye disease that causes severe vision impairment and often blindness.  

The examiner reported that some people will exhibit symptoms from infancy while others may not show signs or notice symptoms until later in life.  The examiner conclude that in the Veteran's case,  evidence of his eye condition was not found until 1987, three years after he exited military service, therefore such was not incurred in or aggravated by his military service.  

The Board finds the October 2014 VA examiner's opinion that the Veteran's claimed bilateral eye disorder is not related to service to be highly probative.  The VA examiner's opinion was based on examination of the Veteran and a thorough review of the claims file, and the opinion is consistent with other evidence of record.  Moreover, the examiner provided an adequate rationale for the opinion and discussed the progression of retinitis pigmentosa in support of the findings.  Accordingly, this VA examiner's opinion is entitled to great probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). There is no competent medical opinion of record linking any current bilateral eye disorder to service. 

To the extent the Veteran believes that his current bilateral eye disorder is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  In this regard, the diagnosis and etiology of eye disabilities require medical testing and expertise to determine.  Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to a current eye disability is a matter that also requires medical expertise to determine.  See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.").  Accordingly, his opinion as to the diagnosis or etiology of his bilateral eye disorder is not competent medical evidence.

For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection of a bilateral eye disorder.  The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).



ORDER

Service connection for a bilateral eye disorder is denied




______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs