Citation Nr: 1716632	
Decision Date: 05/16/17    Archive Date: 05/22/17

DOCKET NO.  10-32 015A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for a bilateral eye condition.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran; Veteran's Daughters


ATTORNEY FOR THE BOARD

R. Kipper, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1954 to September 1956.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco Texas.

In January 2016, the Veteran and his daughters testified at a hearing at the Waco RO before the undersigned Veterans Law Judge.  A transcript of the hearing has been prepared and associated with the claims file.

In February 2016, the Board remanded the issues of entitlement to service connection for a low back condition, a colon/digestive condition, a bilateral knee condition, and a bilateral eye condition for further development.  Thereafter, in June 2016 and February 2017 rating decisions, the Appeals Management Center (AMC) granted entitlement to service connection for a low back condition, a colon condition, and a bilateral knee condition.  Where a claim for service connection is granted during the pendency of an appeal, a second notice of disagreement (NOD) must thereafter be timely filed to initiate appellate review concerning the compensation level or the effective date assigned for the disability.  Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).  To date, the Veteran has not filed a second NOD with regard to these issues, so they are no longer before the Board.

As noted by the Board in the February 2016 remand, the issues of entitlement to service connection for a skin condition and a bilateral foot condition were raised by the record in August 2010 statements, but they have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are, once again, referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2016); see 79 Fed. Reg. 57,660 (Sept 24, 2014) (codified in 38 C.F.R. Parts 3, 19, and 20 (2016)).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The probative evidence of record shows that the Veteran does not have a bilateral eye condition that is etiologically related to his military service.


CONCLUSION OF LAW

The criteria for establishing entitlement to service connection for a bilateral eye condition have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

Under applicable law, VA has a duty 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, 3.326(a) (2016).

In the present case, VA's duty to notify was satisfied by way of a July 2012 letter to the Veteran.

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file include VA and private treatment records, VA examination reports, and lay statements from the Veteran.  The Board acknowledges that the Veteran's service treatment records are unavailable and that all efforts to obtain these records have been unsuccessful.  The Veteran was notified of the missing service records in October 2009 letter.  As the Veteran's service treatment records are unavailable, the Board recognizes that VA's duty to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule is heightened.  Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)).  However, the case law does not 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 Veteran.  Russo v. Brown, 9 Vet. App. 46 (1996).  Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records.  Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005).

As noted above, the Board remanded this case in February 2016, in part, to obtain any outstanding VA treatment records dated from March 2015 to the present, to obtain Social Security Administration (SSA) records, and to give the Veteran the opportunity to identify and/or submit any outstanding private evidence.  As directed by the Board, the AOJ obtained updated VA treatment records and sent a letter to the Veteran requesting that he identify and/or submit any additional private treatment records.  Additionally, the AOJ requested SSA records; however, in April 2016, the AOJ was informed that no such records exist.  The Veteran was informed of this fact in a May 2016 letter, and he was offered the opportunity to submit any such records in his possession.  In light of the foregoing, the Board finds that there has been substantial compliance with its February 2016 remand directives with regard to obtaining outstanding records.  Stegall v. West, 11 Vet. App. 268 (1998).  Additionally, neither the Veteran, nor his representative, has identified any outstanding evidence, to include any other medical records, which could be obtained to substantiate his appeal.

The record also reflects that the Veteran underwent a VA examination to evaluate his bilateral eye condition in May 2016.  The Board finds that the VA examination report is adequate to evaluate the Veteran's claim because the conclusions are based on a clinical evaluation, an interview of the Veteran, and a thorough review of the Veteran's medical history.  See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The Board also finds that the May 2016 examination report substantially complies with its February 2016 remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).  As directed by the Board, the examiner examined the Veteran, reviewed the claims file, and provided an adequate rationale for the negative nexus opinion.  

As previously noted, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned in January 2016.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the undersigned specifically noted the issue on appeal, clarified the Veteran's assertions when necessary, and clarified the evidence needed to substantiate the claim.  Moreover, in the remand after the hearing, the Veteran was given the opportunity to submit additional evidence in support of his claim and to undergo a VA examination in order to obtain information regarding the nature the Veteran's bilateral eye condition.

Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.

The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  

In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that 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).

II. Service Connection

The Veteran seeks entitlement to service connection for a bilateral eye condition, which he contends is related to his active service.

Legal Criteria

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, 1131 (West 2014); 38 C.F.R. 3.303(a) (2016).  

Establishing service connection generally requires (1) evidence of a current disability; (2) 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 present disability.  Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303.  

Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service.  38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).

Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence.  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122, 128-29 (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, 1380-81 (Fed. Cir. 2000).

In deciding the Veteran's claim, 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 of matter, the benefit of the doubt will be given to the Veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

In determining whether statements submitted by a claimant are credible, the Board may consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 91997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinksi, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons and bases, the Board may favor one medical opinion over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).

Factual Background

The Veteran contends that service connection is warranted for a bilateral eye condition.  He asserts that while serving as part of an artillery gun crew, gun powder, soot, and various other fragments would get into his eyes.  He indicated that his eyes would become irritated and swollen and that he was given eye drops in service.  He reported that after service, his vision problems progressed, ultimately resulting in several eye surgeries.  He also indicated that VA doctors discovered old scarring of his eyes, which they attributed to the events in service.  See January 2016 Hearing Testimony; August 2010 Statement.  

As noted above, the Veteran's service treatment records are not available for review.

A January 2005 private treatment record reflects that the Veteran had "evidence of a central retinal occlusion in the past."  A July 2005 private treatment record shows that the Veteran was started on daily aspirin in light of his "retinal vein occlusion."  

A September 2005 VA treatment record shows that the Veteran reported worsening of his vision over the past few months.  

A January 2006 VA optometry consultation note shows that the Veteran complained of poor vision when reading and at a distance "for a while."  He was diagnosed with bilateral dry age-related macular degeneration, bilateral mild cataracts, and mild, "diabetic suspect?" retinopathy of the left eye.  

A July 2006 VA optometry consultation note shows that the Veteran was diagnosed with incipient cataracts bilaterally and left eye cystoid macular edema with "small tortous vessels at nerve OS, questionable shunt vessels at optic nerve OS.  Possibly due to old vein occlusion."  

A July 2007 VA optometry consultation note shows that the Veteran had "subtle macular edema" of the left eye, which "may be secondary to" the Veteran's hypertension.  A September 2007 VA optometry note shows diagnoses of bilateral cataracts and left eye cystic macular edema.  

In January 2009, the Veteran underwent cataract surgery on his left eye.  A June 2010 VA treatment record shows that the Veteran was "status post cataract extraction with intraocular lens implant with resultant cystoid macular edema in the left eye."  The Veteran underwent left eye surgery in June 2010, and a superonasal retinal tear was noted.  

In an August 2010 statement, the Veteran reported that his eyes would get irritated and swollen in service and that he was given eye drops in service.  The Veteran indicated that he "recently had two eye surgeries trying to repair damage from years ago, according to the VA physicians."  The Veteran asserted that his "vision problems begun [sic] in the Army as time progressed so did [his] vision problems, according to the doctor."  

A May 2011 private treatment record shows that the Veteran reported decreased vision for the "past few years or so."  A January 2012 private treatment record shows diagnoses of age-related macular degeneration bilaterally and cystic macular edema bilaterally.  A May 2012 private treatment record shows diagnoses of senile cataract in the right eye, posterior capsule opacification in the left eye, pseudophakia in the left eye, and nonexudative macular degeneration bilaterally.

In an October 2012 statement, the Veteran reported that while firing antiaircraft guns in service, numerous fragments would get into his eyes, and that he remembered having to rub his eyes.  

During the January 2016 hearing, the Veteran testified that dust and debris would get into his eyes during service.  He indicated that the medic gave him some eye drops.  The Veteran's daughter testified that the Veteran's doctors discovered "old scarring" behind the retina, and that "when they took his eye out they found all the debris and stuff that's here behind there."  

The Veteran was afforded a VA examination in May 2016.  The Veteran reported that he was exposed to dense debris and dust that was stirred up by the recoil of the weapons he fired.  He reported that he was given drops to rinse his eyes.  The Veteran noted that "for a long while after returning home, he continued to feel as though he had debris in his eyes."  He reported that his vision began to deteriorate in approximately 2001.  The examiner noted the following diagnoses: bilateral retinal vein occlusion; bilateral cystoid macular degeneration; left eye pseudohole of macula; bilateral pseudophakia; and right eye vitreomacular traction.  The examiner indicated that "records reveal that the cause for decrease in vision is due to retinal problems."  The examiner further indicated that "surface debris, even in high amounts, does not cause retinal problems."  The examiner opined that the Veteran's "history of copious amounts of dust and debris in the eyes in 1954-1956 is not related to his retinal disease that began in the 2000s."  The examiner also opined that the Veteran's "macular edema, macular gliosis, [and] macular degeneration all began likely in the early 2000s and are not related to any event that occurred during service."   

Analysis

As an initial matter, the Board notes that the Veteran has been diagnosed with numerous eye conditions, to include bilateral retinal vein occlusion; bilateral cystoid macular degeneration; left eye pseudohole of macula; bilateral pseudophakia; and right eye vitreomacular traction.  See May 2016 VA Examination Report.  As such, the Board finds the current disability element is established.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Next, the evidence of record supports a finding that the Veteran sustained an in-service injury to his eyes.  Although there are no service treatment records available, the Veteran is competent to report his experiences in during service, to include experiencing eye irritation due to dust and debris and being treated with eye drops.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Moreover, the Board finds these reports to be credible and consistent with the Veteran's service as an artillery gun crewman.  See 38 U.S.C.A. § 1154 (a).  Thus, there is evidence of an event, injury, or disease in service.  Accordingly, the issue turns upon whether there is evidence of a nexus between the in-service injuries and the present disability.

Upon review of the foregoing evidence, the Board concludes that the evidence of record is against a finding that the Veteran's currently diagnosed eye conditions are related to his military service or are of service origin.

As an initial matter, the Veteran does not assert, and the record does not indicate, that he experienced chronic eye problems since his active service.  The first medical evidence related to an eye condition is in 2005, almost 50 years after service.  Moreover, at the May 2016 VA examination, the Veteran reported the onset of his symptoms in around 2001, and a May 2011 private treatment record shows that the Veteran reported decreased vision for the "past few years or so."

The Board also finds the May 2016 VA examiner's opinion to be highly persuasive to the issue at hand.  The Board notes that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his knowledge and skill in analyzing the data, and his medical conclusion.  As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator.  Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion.  See Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000).

Here, the May 2016 VA examiner's conclusions are shown to have been based upon a review of the Veteran's claims file, physical examination, and acknowledgement of the Veteran's lay statements regarding the onset and continuity of his symptoms.  Moreover, the opinion is supported by a sufficient explanation and reference to pertinent evidence of record.  See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (VA examination report "must be read as a whole" to determine the examiner's rationale).  Furthermore, the conclusions are consistent with the evidence of record, including the Veteran's lay statements regarding his in-service and post-service symptoms.  See Nieves-Rodriguez, 22 Vet. App. at 304 (2008) (holding, in the context of weighing one medical opinion with another, that "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion ... that contributes probative value to a medical opinion").  In this regard, the examiner accepted the Veteran's reports of having "copious amounts of dust and debris in his eyes" during service and the Veteran's reports of vision problems starting in 2001; however, the examiner explained that even in high amounts, surface debris could not cause the retinal conditions currently suffered by the Veteran.  Overall, the May 2016 VA medical opinion was thorough, supported by an explanation, based on a review of the claims folder, and supported by the Veteran's lay statements and medical records.  

The Board acknowledges the contentions of the Veteran and his daughters that VA and private physicians found "old scarring" and debris behind the Veteran's retina, as well as their contentions that doctors attributed this scarring to events in service.  See January 2016 Hearing Testimony; August 2010 Statement in Support of Claim.  Although the Veteran and his daughters are competent to report on what doctors may have told them, and there is no reason to find them incredible in this regard, the Veteran has not provided any documentation to support these assertions, and the medical records, which appear to be reasonably complete, do not document such statements.  In fact, although treatment records do reference a previous vein occlusion, no medical professional has attributed the Veteran's eye conditions to any events in service, to include dust and debris.  To the extent the Veteran proffers this information as a positive nexus between his current eye disabilities and service, the Board finds that a layperson's account of what a doctor purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute competent medical evidence.  Robinette v. Brown, 8 Vet. App. 69, 77 (1995).  Moreover, even if accurate, the Board cannot determine the factual premise and reasoning underpinning such opinions.  See Nieves-Rodriguez, 22 Vet. App. at 304.  Further, even if doctors told the Veteran that his eye disabilities were attributable to "old scarring," such statements do not provide a nexus to service.  Accordingly, these statements have very little probative value, and they are far outweighed by the May 2016 VA examiner's opinion discussed above.

The Board also acknowledges the Veteran's assertions that his bilateral eye condition is related to his military service.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of an eye condition, falls outside the realm of common knowledge of a lay person.  In this regard, while the Veteran can competently report his symptoms, any opinion regarding whether his diagnosed eye conditions are related to his military service requires medical expertise that the Veteran has not demonstrated.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007).  As such, the Board assigns no probative weight to the Veteran's assertions that his current bilateral eye condition is related to his in-service eye injuries.

While the Board is sympathetic to the Veteran's claim, taking into account all of the relevant evidence of record, the preponderance of the evidence is against a finding that the Veteran's currently diagnosed bilateral eye conditions are related to service.  Accordingly, the Board finds that the claim of entitlement to service connection for a bilateral eye condition must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  


ORDER

Entitlement to service connection for a bilateral eye condition is denied.



____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs