Citation Nr: 1750120 Decision Date: 11/03/17 Archive Date: 11/13/17 DOCKET NO. 10-15 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a right eye condition. REPRESENTATION Appellant represented by: Blinded Veterans Association WITNESSES AT HEARING ON APPEAL The Veteran and R. R. ATTORNEY FOR THE BOARD T. J. Anthony, Associate Counsel INTRODUCTION The Veteran had active service from June 1970 to January 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In January 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this matter in June 2016 and April 2017. In the Introduction sections of those remands, the Board found that the issue of entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD) had been raised by the record, but had not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Accordingly, the Board referred that issue to the AOJ for appropriate action. A review of the record reveals that the AOJ has yet to take any developmental action as to that issue. Therefore, the Board again finds that the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD has been raised by the record, but has not been adjudicated by the AOJ. As such, the Board does not have jurisdiction over it, and it is again REFERRED to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). FINDING OF FACT The evidence does not show that any current right eye disability had its onset during the Veteran's active service or is causally or etiologically related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right eye disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5107A (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has 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. §§ 3.159, 3.326 (2016); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA's duty to notify was satisfied by a letter dated in November 2009. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has also satisfied its duty to assist the Veteran. The Veteran's service treatment records, service personnel records, and VA treatment records have been associated with the record, as have lay statements from the Veteran. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The duty to assist also includes the provision of a VA examination when necessary to decide a claim. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided a VA examination in May 2017. The examiner who conducted the examination reviewed the record, considered the Veteran's reported symptomatology and medical history, and addressed the likely etiology of the Veteran's right eye disability, providing supporting explanation and rationale for all conclusions reached. The examination was thorough, and all necessary evidence and testing was considered by the examiner. The examination report and the accompanying opinion provide the information necessary to render a full decision on the issue on appeal. Therefore, the Board finds the examination to be adequate for decision-making purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). There is no indication in the record that any additional evidence, relevant to the claim adjudicated in this decision, is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Compliance with Board Remands As noted in the Introduction, the Board remanded this case in June 2016 and April 2017. Relevant to the issue on appeal, the June 2016 Board remand directed the Agency of Original Jurisdiction (AOJ) to obtain and associated with the record all VA treatment records for the Veteran dated from September 2011 through the present; contact the Veteran to identify and authorize release of any outstanding relevant private treatment records; make appropriate efforts to obtain any private treatment records so identified; and then readjudicate the claim and issue a supplemental statement of the case, if warranted. Pursuant to the June 2016 Board remand, the AOJ sent the Veteran a letter in September 2016 asking him to identify and authorize release of any treatment records for non-VA health care providers. The Veteran did not respond to the September 2016 or otherwise identify any outstanding treatment records from non-VA health care providers. The AOJ also obtained updated VA treatment records and then readjudicated the claim in a December 2016 supplemental statement of the case. Accordingly, the Board finds that VA at least substantially complied with the June 2016 Board remand. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The April 2017 Board remand directed the AOJ to schedule the Veteran for a VA examination to determine the nature and etiology of his claimed right eye disability, and then readjudicate the claim and issue a supplemental statement of the case, if warranted. Pursuant to the April 2017 Board remand, the AOJ provided the Veteran with a VA examination in May 2017 that was consistent with and responsive to the April 2017 remand directives, and then readjudicated the claim in a September 2017 supplemental statement of the case. Accordingly, the Board finds that VA at least substantially complied with the April 2017 Board remand. See 38 U.S.C.A. § 5103A(b); Stegall, 11 Vet. App. at 271; D'Aries, 22 Vet. App. at 105. Other Due Process Considerations Also as noted in the Introduction, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) in January 2016. At the hearing, the VLJ asked the Veteran specific questions concerning the symptoms of and treatment for his claimed right eye condition. In addition, the VLJ solicited information as to the existence of any outstanding evidence. No pertinent evidence that is available, might have been overlooked, and might substantiate the claim was identified by the Veteran or his representative. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. See Scott, 789 F.3d 1375; Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). Legal Criteria Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of an event, injury, or disease; and (3) a causal relationship between the current disability and the event, injury, or disease incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). Analysis The Veteran contends that he has a right eye condition that had its onset during his active service or is otherwise etiologically related to an event or injury that occurred in service. Specifically, the Veteran testified at the January 2016 Board hearing that he currently has a right eye condition that is due to being hit in the eye with hot shells from M-16s he used during his active service. Additionally, a January 2003 VA treatment record reflects that the Veteran reported to his treatment provider his belief that his eyes were burned by gunpowder from M-16s he used during his active service. The VA treatment records show that the Veteran has cataracts and refractive error of both eyes. Therefore, there is evidence of a current right eye disability. As to an in-service injury disease or injury, the service treatment records are absent for diagnosis of or treatment for a right eye condition. In addition, although the service treatment records show that the Veteran's right eye visual acuity decreased from 20/20 on a June 1969 pre-induction medical examination to 20/25 on a December 1971 medical examination for separation from active service, the May 2017 VA examiner indicated that the decrease is not significant. There is no probative evidence of record showing that the Veteran's current right eye disability had its onset during his active service. Nevertheless, the Veteran's reports of exposure to hot shells and gunpowder from M-16s are generally consistent with the conditions and circumstances of his service, as his DD Form 214 indicates that he earned the M-16 Sharpshooter badge and his service personnel records show that he served as a Vulcan Crewman for a period. In addition, there is nothing in the record to impugn the Veteran's reports. Thus, his statements are considered credible. See 38 U.S.C.A. § 1154(a). Accordingly, there is evidence of an in-service event of exposure to hot shells and gunpowder, and the question remaining for consideration is whether the Veteran's current right eye disability is causally or etiologically related to that event. In addressing that question, the Board initially acknowledges the Veteran's assertions that his current right eye disability is related to the in-service exposure to hot shells and gunpowder. The Veteran is competent to report symptoms and events that are observable through the senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he has not been shown to possess the knowledge and expertise required to address complex medical questions such as the likely etiology of an eye disability. Therefore, his assertions are not considered competent and are not due probative weight. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). To address the question remaining for consideration, the Board turns instead to the competent evidence of record, which in this case consists of the May 2017 VA examination report and its accompanying opinion. The May 2017 VA examiner reviewed the record, interviewed the Veteran, and examined the Veteran. The examiner noted that there is no record of an eye incident during the Veteran's active service and the Veteran's reports of in-service exposure to M-16 rifles. Based on the examination and the review of the record, the examiner diagnosed the Veteran with cataracts in both eyes and opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As a rationale for the opinion, the examiner explained that the examination revealed advanced age-related cataract in the right eye and moderate age-related cataract in the left eye. There were no scars in either eye to suggest a traumatic injury and the Veteran's blurry vision is caused by the cataracts, especially in right eye. The Board affords probative weight to the May 2017 VA examiner's opinion because it is supported by a reasoned medical explanation that provides insight into the medical aspects and etiology of the Veteran's current right eye condition and its resulting blurry vision. The examiner explained that the Veteran's right eye cataract is consistent with aging, and that there was no scarring of the right eye to indicate the cataract was due to the sort of trauma reported by the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). As such, the Board accepts the May 2017 VA examiner's opinion as probative evidence that it is not at least as likely as not that the Veteran's current right eye condition is causally or etiologically related to his active service. In summary, the Veteran has a current right eye disability of a cataract, which the May 2017 VA examiner determined was the cause of his blurry vision. However, the probative evidence of record does not show that it is at least as likely as not that the current right eye disability had its onset during the Veteran's active service or is causally or etiologically related to his active service, to include hot shells and gunpowder from M-16s. Rather, the probative evidence of record shows that the current right eye disability is age-related, rather than the sort of trauma the Veteran has competently and credibly reported. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a right eye disability. Because 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); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right eye disability is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs