Citation Nr: 1702367 Decision Date: 01/27/17 Archive Date: 02/09/17 DOCKET NO. 07-04 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for status post foreign body, left eye. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Connally, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had service from February 1969 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2005 decision of the Regional Office (RO) in San Diego, California. Subsequently, the Veteran's file was transferred to the RO in Los Angeles, California. In July 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The Board notes that the issue of entitlement to service connection for an acquired psychiatric disorder was previously on appeal; however, the RO granted a 100 percent rating for an acquired psychiatric disorder in a September 2012 rating decision. Consequently, that issue is no longer on appeal to the Board. The Board previously considered this appeal in April 2016, and reopened and remanded this issue for further development in order to obtain an addendum VA examination opinion. That development was completed, and the case returned to the Board for further appellate review. FINDINGS OF FACT 1. The Veteran experienced a left eye injury during service. 2. The Veteran is currently diagnosed with conjunctival melanosis, refractive error, presbyopia, dry eyes, near vision blur, and chronic floaters. 3. The current left eye diagnoses are not related to the Veteran's injury that occurred during service. CONCLUSION OF LAW The criteria to establish service connection for status post foreign body, left eye, have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection for a Left Eye Disability The Veteran contends that he has residuals from a left eye injury that he incurred during service. Specifically, in his original March 1971 claim, the Veteran endorsed "eye trouble due to metallic object, left eye, while working aboard ship...left eye aches and waters at times." He has also endorsed being hospitalized after paint fragments entered his left eye while repairing a ship and now requires glasses. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). Service connection may be granted 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). As a general matter, service connection for a disability requires evidence of: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Congenital or developmental defects and refractive error of the eye are not diseases or injuries within the meaning of applicable VA legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2016). In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including presbyopia, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Id. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016). The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran has current diagnoses of the left eye, including scleral pigmentation, cataracts and refractive error. See VA examination reports. Service treatment records show that the Veteran's bilateral vision was 20/25 in October 1968. However, his bilateral vision was noted as 20/20 in February 1969. The Veteran was treated for a left eye injury in July 1970. After this incident occurred, the treating physician noted that the Veteran "was chipping paint and grinding, when he got a chip of paint or metal in the cornea of his left eye. It appears to be well beneath the surface of the conjunctiva." According to the service treatment record's notes, the Veteran's "corneal foreign body healed." In October 1970, his separation examination showed 20/20 in his right eye and 20/30 in his left eye, and the Veteran affirmatively denied any vision issues at this time on his Report of Medical History. The remaining question is whether there is competent evidence of a nexus between any current eye disability and the in-service injury. On VA examination in May 1971, the Veteran endorsed a history of having a foreign body in his left eye. The examiner noted that the Veteran "cannot see distance," and that he "does not wear glasses." Physical examination revealed bilateral, uncorrected 20/20 vision. The examiner reported that "both lids and adnexa are clear. The extraocular movements are normal...I see no sign of intraocular pathology." The examiner diagnosed history of foreign body, right eye, not clinically seen, x-rays ordered and further noted No ocular pathology found. A handwritten notation on the examination after the "x-rays ordered" indicated no foreign body found. The corresponding June 1971 radiographic report indicated the orbit series reflected "no radiopaque foreign body is identified. The orbit appears normal." It is unclear from the report whether the reference to "right" eye was a typographical error or if the wrong eye was examined. Significantly, however, both eyes were examined and the examiner concluded there was no intraocular pathology of either eye. A March 1978 VA examination described the eyes as having normal extrinsic ocular muscles. The conjunctiva and sclera were clear with no evidence of icterus and the pupils reacted to light and accommodation. VA treatment records from March 1980 show bilateral 20/40 vision. In September 2011, the treating VA physician noted that the Veteran has a history of corneal trauma in his left eye, but no scarring was found. He was also assessed with age-related cataracts, blepharitis, and refractive errors in both eyes. The physician also "reassured" the Veteran that no corneal scar remained from trauma. The Veteran received another VA examination in September 2011. He endorsed a plastic foreign body entering his left eye. The examiner noted that the Veteran "initially claimed corneal presentation, then history somewhat modified (after lengthy recall) to indicate conjunctival/scleral location, with the object eventually working its way out." The Veteran also endorsed needing eyeglasses for reading purposes, mild ocular irritation and dry eye state, and long-standing floaters that may be possibly increasing slowly over time. Physical examination did not reveal any corneal, conjunctival, or scleral foreign bodies. The examiner reported that the Veteran currently has dry eyes, near vision blur, and chronic floaters, but no foreign body in his left eye. He diagnosed conjunctival melanosis, refractive error, presbyopia, dry eyes, near vision blur, and chronic floaters. In an October 2011 VA examination addendum opinion, the VA examiner opined, "Only residual from the previous foreign body injury is a small and focal area of increased melanin deposition, without any deformation of the tissue, either elevated or depressed. This in no way contributes to his bilateral dry eye state." In July 2015, the Veteran testified at a Board hearing before the undersigned. At this time, he stated that while working aboard the USS Cacapon he was using hydraulic tools to chip and remove pain when a "paint chip blasted through the...goggles that I had." See July 2015 Board Hearing Transcript, 3. He said, "As of today, the chip is still imbedded in the left eye." Id. He endorsed blurred vision "from time to time," and that it causes him to "see numbers with difficulty." Id. He also described "floaters" in his vision and "dry eyes." Id. at 5, 7. An addendum VA examination opinion was obtained in May 2016 in order to clarify the etiology for all of the Veteran's current left eye vision disabilities. The examiner opined, "It is less likely than not that the Veteran's claimed left eye condition is related to service." The examiner reasoned that the Veteran has "scleral pigmentation (diagnosed as conjunctival melanosis) of the left eye nasal area (noted on in the [service treatment records] as 'speck at 0900') which does not affect vision and does not cause disability." The examiner further commented, "This abnormality was noted on initial presentation in July 1970 and was diagnosed as a pigmented 'nerve fiber loop' - a physical finding without clinical significance with regard to vision/eye function/etc." In addition, the May 2016 VA examiner opined, "The Veteran's bilateral cataracts noted in 2011 are less likely than not related to his left eye injury in service." The examiner reasoned, "...the bilateral cataracts are age-related and not related to trauma in service - there is no plausible pathophysiologic mechanism to link the left eye trauma in service (which did not affect his cornea or his lens) to his noted bilateral cataracts in 2011." Lastly, the examiner opined, "The Veteran's bilateral refractive error is less likely than not related to his left eye injury in service." The examiner reasoned, "...the Veteran had superficial trauma to his left eye in service which did not significantly affect his cornea, lens, globe, or retina. There is no plausible pathophysiologic mechanism for this injury to his left eye to result in subsequent (and similar) refractive error in both eyes." Reviewing the evidence above, the Board finds that the preponderance of the evidence is against the claim. To the extent to which the Veteran has a refractive error, this is not considered a disease within VA regulations. 38 C.F.R. § 3.303. Furthermore, there is no evidence that there was a superimposed disease or injury and the VA examiner clearly indicated that the injury in service was a superficial trauma that did not significantly affect the cornea, lens, globe or retina and there was no plausible pathophysiologic mechanism for such an injury to result in subsequent refractive error. To the extent to which the Veteran has other eye disabilities, including dry eyes, cataracts, and increased pigmentation, the most probative evidence regarding the etiology of the Veteran's eye conditions is the VA examinations and resulting opinions, which found no link between the Veteran's diagnosed disabilities of the left eye and his active service, including his in-service injury. The Board finds the May 2016 medical opinion especially probative of a negative nexus between the Veteran's current condition and service because it not only contains a clear conclusion with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Thus, the preponderance of evidence is against a finding that the Veteran's current left eye disability was caused by his service. The only evidence linking any current disability to service is the Veteran's own statement. The Veteran is competent to report his observable symptoms as he experiences them through his senses. See Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to provide an etiological opinion linking his currently diagnosed eye conditions to his active service; to do so requires complex medical expertise that the Veteran fails to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The causation of an eye disability is not a process that is readily observable by a lay person and would require knowledge of eye disorders, pathology and risk factors for different disorders and an ability to interpret clinical testing (such as slit-lamp and retinal examinations), visual acuity testing and radiographic studies. Thus, to the extent that the Veteran's asserts an etiological relationship between his eye conditions and his active service, such statements are afforded no probative weight. After a full review of the record, the weight of the evidence demonstrates that a left eye disability did not have its onset in service and is not otherwise related to service for the reasons discussed above. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided a letter to the Veteran in February 2005, prior to the initial adjudication of the service connection claim on appeal. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The notice requirements of the VCAA apply to all elements of a service connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran was provided with such notice by the February 2005 letter, including the type of evidence necessary to establish a disability rating and effective dates. Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant 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 claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). Here, service records have been obtained as have records of VA and private treatment. Additionally, records were received from the Social Security Administration. Based on the foregoing, the Board finds that VA has met its duty to assist with regard to records development. The Veteran was afforded a VA examination with respect to his claim in May 1971 and September 2011. During the examinations, the VA examiners conducted a physical examination of the Veteran with diagnostic testing, were provided the claims file for review, took down the Veteran's history, considered the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met regarding the matter on appeal. 38 C.F.R. § 3.159(c)(4); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in July 2015. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) essentially requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. 23 Vet. App. 488 (2010). These requirements consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Id. During the hearing, the Veterans Law Judge sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Accordingly, the Veteran is not shown to be prejudiced on this basis. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The actions by the undersigned satisfy the obligations imposed by 38 C.F.R. § 3.103. All necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record. The Board has carefully considered such statements, and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). As noted in the Introduction, the Board previously remanded this claim in April 2016. The Board instructed the AOJ to readjudicate the claim on appeal with consideration of the additional evidence associated with the claims folder. Since that time, VA issued a supplemental statement of the case that considered the additional, new evidence. As a result, the Board finds substantial compliance with its previous remand instructions, and has properly continued with the foregoing decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). ORDER Service connection for status post foreign body, left eye, is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs