Citation Nr: 1741663 Decision Date: 09/22/17 Archive Date: 10/02/17 DOCKET NO. 16-59 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a left eye disorder. 2. Entitlement to service connection for a right eye disorder. 3. Entitlement to service connection for a respiratory disorder, to include asthma and chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from April 1963 to April 1965. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the RO in Des Moines, Iowa. Jurisdiction resides with the New Orleans RO. 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). FINDINGS OF FACT 1. The Veteran's left eye disorder, diagnosed as esotropia, pre-existed service entrance, but was not permanently aggravated beyond a normal progression during service. 2. The Veteran did not have a right eye or respiratory injury or disease during service; and he does not have a current right eye or respiratory disability that is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left eye disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2016). 2. The criteria for service connection for a right eye disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016). 3. The criteria for service connection for a respiratory disorder, to include asthma and COPD, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board notes that the Veteran has not been afforded a VA medical examination specifically addressing the claimed bilateral eye and respiratory disorders; however, the Board finds that a VA examination is not necessary to decide these matters. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that in disability compensation claims, the VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurring symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on a claim. In Duenas v. Principi, 18 Vet. App. 512 (2004), the Court held that a VA examination is necessary when the record: (1) contains competent evidence that a veteran has persistent or recurrent symptoms of the claimed disability and (2) indicate that those symptoms may be associated with his active military service. In this case, because the weight of the evidence demonstrates that the Veteran did not have symptoms of a bilateral eye or respiratory disorder in service and did not sustain an eye or respiratory injury or disease in service, or otherwise show in-service symptoms, or an in-service event involving his eyes or respiratory system, there is no duty to provide a VA medical examination. As will be discussed in detail below, in this case, service treatment records are devoid of any complaints, symptoms, or diagnosis indicative of an eye or respiratory disorder in service. See also Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159 (c), as indicated under the facts and circumstances in this case. Service Connection Laws and Regulations 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; 38 C.F.R. § 3.303 (a). 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2016) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical 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) medical 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). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Service Connection Analysis for a Right and Left Eye Disorder The Board notes that a veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304 (b). Service connection may be granted for aggravation of a pre-existing injury suffered or disease contracted in line of duty. A pre-existing injury or disease will be considered to have been aggravated during service where there is an increase in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. Aggravation of a pre-existing injury or disease will not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306. Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, "a lasting worsening of the condition," that is, a worsening which existed not only during service and/or at the time of separation but also continued thereafter, is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). In this case, the service entrance examination in April 1963 shows that the Veteran was noted to have esotropia of 20 degrees in the left eye. As such, the Veteran had a pre-existing left eye disorder prior to service entrance. As a left eye disability was noted at service entry, the Board finds that the presumption of soundness at service entrance does not attach as it pertains to the Veteran's left eye. See 38 U.S.C.A. § 1111. In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service, and then whether this constitutes an increase, permanent in nature, in the disability. The primary question then is whether the preexisting left eye disorder was shown to have increased in severity during active service. In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992). Here, available service treatment records are negative for any complaints or treatment pertinent to a left eye disorder. Further, the Veteran's February 1965 service separation examination shows that a clinical evaluation of the Veteran's eyes were normal. In a February 1965 report of medical history, completed by the Veteran at service separation, he specifically checked "NO" as to having eye trouble. Thus, the Board concludes that the service treatment records do not shown an increase in severity of his left eye condition during service. Post service VA treatment records (in Virtual VA) are negative for any treatment for esotropia or other eye disorders. A March 2006 VA treatment record shows that the Veteran wore eyeglasses, but had no vision impairment, glaucoma, cataracts, or blurred or impaired vision. The Board notes that a refractive error is not a disease or injury within the meaning of the law providing compensation. 38 C.F.R. §§ 3.303 (c), 4.9 (2016). Importantly, the Veteran has not provided any lay or medical evidence showing that his left eye disorder permanently increased in severity during his period of active service. Accordingly, and upon review of all the evidence of record, both lay and medical, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran's pre-existing left eye disorder, which was noted at entrance into service, underwent any increase in severity during service. For these reasons, the Veteran's appeal as to this issue must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Regarding the Veteran's right eye, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran did not sustain a right eye injury or disease in service, nor did he exhibit symptoms of a right eye disorder in service. Service treatment records are negative for any complaints, diagnosis, or treatment for a right eye disorder. The April 1963 shows that the Veteran was not noted to have a right eye disorder at service entrance. Service treatment records appear complete and the Veteran has not contended that there are missing service treatment records. Service treatment records show that the Veteran sought treatment for other ailments unrelated to his eye, during which time he did not complain of any eye symptoms. See Kahana v. Shinseki, No. 24 Vet. App. 428, 439 (2011) (citing Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (Lance, J., concurring) (VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). Had the Veteran been suffering from eye symptoms, he had opportunities to mention such symptoms to service health care providers even without making a separate visit to sick call. Had he done so, such complaints would have been reflected in the service treatment records. Additionally, contemporaneous to service, the Veteran did not report any history or complaints of right eye problems at the time of his separation from service. Such absence of complaints, findings, or treatment during service, in this context, is highly probative, contemporaneous evidence that the Veteran did not experience right eye problems in service. As noted above, in a February 1965 report of medical history, completed by the Veteran at service separation, he specifically checked "NO" as to having eye trouble. Further, the Veteran has not provided any lay or medical evidence showing that he sustained a right eye injury or disease during service. In sum, the Board finds that the competent and credible evidence of record demonstrates that the Veteran did not sustain an injury or disease of the right eye in service. As there is no in-service injury or disease to which to relate a right eye disorder, the question of relationship (nexus) to service is not reached in this case. That is, without a connection to an injury or disease during service, service connection for a current right eye disability may not be awarded. Accordingly, the Board finds that a preponderance of the evidence is against the claim for service connection for a right eye disorder, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for a Respiratory Disorder The Veteran generally maintains that his respiratory disorder is related to service. Post-service VA treatment records confirm a diagnosis of COPD and a history of asthma. The Board finds that the weight of the competent and credible evidence demonstrates that the Veteran did not sustain a respiratory injury or disease in service, nor did he exhibit symptoms of a respiratory disorder in service. Service treatment records are negative for any complaints, diagnosis, or treatment for a respiratory disorder. The April 1963 and February 1965 Reports of Medical Examination, conducted at service entrance and service separation, show that a clinical evaluation of the Veteran's lungs and chest was normal. The Veteran also denied having asthma, shortness of breath, pain or pressure in his chest, or a chronic cough at service separation. See February 1965 Report of Medical History (completed by the Veteran at service separation). Post-service VA treatment records show treatment and a diagnosis for asthma and COPD as early as March 2000; however, there is no indication that these disorders first manifested in service or were otherwise related to service. Also, these diagnoses were first noted more than 30 years following service separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor for consideration in deciding a claim). Further, the Veteran has not provided any lay or medical evidence showing that he sustained a respiratory injury or disease during service. Without a connection to an injury or disease during service, service connection for a current respiratory disability may not be awarded. In sum, the Board finds that the competent and credible evidence of record demonstrates that the Veteran did not sustain an injury or disease of the respiratory system in service. As there is no in-service injury or disease to which to relate a respiratory disorder, the question of relationship (nexus) to service is not reached in this case. Accordingly, the Board finds that a preponderance of the evidence is against the claim for service connection for a respiratory disorder, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a left eye disorder is denied. Service connection for a right eye disorder is denied. Service connection for a respiratory disorder, to include asthma and COPD, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs