Citation Nr: 1804402 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 12-21 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a disability manifested by impaired vision, to include an eye disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Jiggetts, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas which denied reopening a claim of service connection for an eye condition (previously characterized as a vision problem). In a February 2015 Board decision, the Veteran's claim was reopened and the matter was remanded for further development, to include obtaining a VA examination. A VA examination was conducted in April 2015, and the matter was returned to the Board. In an April 2017 Board decision, the matter was again remanded for further development, as it had been determined by the Board that the April 2015 VA examination was inadequate because the examiner did not provide a rationale for her opinion. The requested development has been conducted, and the matter has been returned to the Board for further adjudication. FINDING OF FACT The Veteran's disability manifested by impaired vision, to include an eye disorder, is not shown to have developed as a result of an established event, injury, or disease during active service. CONCLUSION OF LAW The Veteran's disability manifested by impaired vision, to include an eye disorder, was not incurred as a result of active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must 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). Here, the RO sent correspondence throughout the appeals process, but specifically in June 2010, that informed the Veteran of what evidence was needed to establish the benefits sought, of what VA would do or had done, and of what evidence the Veteran should provide. In addition, the letter informed the Veteran of how disability ratings and effective dates are assigned. The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notice provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim, with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the Veteran, and any defect in the timing or content of the notice has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the Veteran. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate a claim for the benefits sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The evidence of record contains the Veteran's service treatment records, lay statements of the Veteran, as well as post-service treatment from both private and VA treatment providers. Also of record are VA examinations conducted in April 2015 and July 2017 concerning the Veteran's claimed vision problems. In light of the foregoing, the Board concludes that the VA's duties to the Veteran have been fulfilled as to the issues decided herein. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). In some cases, lay evidence will be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In Jandreau, the United States Court of Appeals for the Federal Circuit stated that a layperson can identify a simple condition like a broken leg, but not a form of cancer. Id. at 1377, n. 4. Lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (holding that varicose veins is a disability that is unique and readily identifiable). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App. 370, 374 (2002). See also 38 C.F.R. § 3.159(a)(2) (2016) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). The Board must also assess the credibility, and therefore the probative value, of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In determining whether documents submitted by an appellant are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted by or on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Here, the Veteran contends that his disability manifested by impaired vision, to include an eye disorder, is a result of his active service. More specifically, the Veteran contends that while in service, he was as a small arms repairman assigned to a firing range in Okinawa for 18 months, where he was exposed daily to gun powder and smoke from firing weapons at the rifle range. Service treatment records reflect there were no complaints, treatment, or diagnosis of any vision problems. According to the Veteran's entrance and exit examinations, his eyes were "normal" and his vision was recorded as 20/20. Nine years after his separation from service, when the Veteran submitted to an enlistment examination for the Army Reserves in December 1979, his eyes were again noted to be "normal" and his vision was recorded as 20/20 in his right eye, and 20/25 in his left eye. The Veteran was deemed qualified for enlistment. Post service treatment records are associated with the Veteran's claims file. A March 1972 record reflects the Veteran complained of pain in his left eye. A March 1973 record reflects the removal of a foreign body from the Veteran's left eye. Post service VA treatment records from the San Antonio VA Medical Center (VAMC), Corpus Christi Outpatient Clinic (OPC), are associated with the Veteran's claim's file. A June 2008 record reflects the Veteran complained of eye irritation and was diagnosed with pterygia. In September 2009, the Veteran was diagnosed with refractive error, early cataracts, and pterygium. A November 2009 record reflects the Veteran complained of being unable to see well from both eyes, blurry vision, and seeing spots. An August 2012 record of an "eye consult" reflects the examiner diagnosed the Veteran with primary open angle glaucoma, optic atrophy, cataracts, and dry eye syndrome. On VA examination in April 2015, the examiner noted that the Veteran had the following diagnoses as it relates to his eyes: lacrimal gland and lid disorders, specifically, meibomian gland dysfunction; conjunctivitis and other conjunctival conditions, specifically, pinguecula; cataract and other lens conditions, specifically nuclear sclerotic cataracts; and, glaucoma. However, the examiner opined that it was less likely than not that these eye conditions incurred in or were caused by service. Unfortunately, this examiner did not provide a rationale for her opinion, so a new medical opinion was ordered by the Board as aforementioned. A new VA examiner reviewed the Veteran's claim file and submitted a written report in July 2017. This examiner also opined that it was less likely than not that the Veteran's eye conditions incurred in or were caused by service. Specifically, the examiner stated that the Veteran's primary open angle glaucoma, optic atrophy, keratoconjunctivitis sicca, pinguecula, ptergium, meibomian gland dysfunction, presbyopia, and nuclear sclerotic cataracts are less likely as not caused by or a result of the Veteran's service in the military. As rationale, the examiner stated: The exposure to gun smoke that occurred during 1968 to 1970 was not of the nature that is linked to any of these conditions. The peer-reviewed literature shows a significantly increased risk for glaucoma and its associated optic atrophy, for cataract, and for meibomian gland dysfunction and keratoconjunctivitis sicca, ONLY with chronic cigarette smokers over decades, not for smoke exposure as short as 2 years. There is no association between smoke exposure and pinguecula, pterygium or presbyopia, the latter condition affecting 100% of the population. Since the Veteran had at most two years of some level of smoke exposure during his military service, it is less likely than not this exposure is causally related in any way to his current eye conditions. Upon review of the record, the Board finds that the Veteran's diagnosed eye disorders are not etiologically related to service. In this regard, the only competent etiological opinion of record is the July 2017 VA examiner's medical opinion, which confirmed multiple diagnoses of vision problems and eye disorders, but determined that no such disabilities are etiologically related to the Veteran's service. The Board places high probative weight on the July 2017 opinion, as the examiner reviewed the claims file and provided a thorough rationale for the opinion. There is no evidence to doubt the credibility of the examiner's opinion. Therefore, with no other competent and credible evidence of record, the criteria for a grant of service connection for a disability manifested by impaired vision, to include an eye disorder, have not been met. The Board has also considered the lay evidence in this case. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case (a disability manifested by impaired vision to include an eye disorder), it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In other words, although the Veteran is competent to report the presence of symptoms, a disability manifested by impaired vision to include an eye disorder of the type present in this case, are not the type of conditions that are amenable to mere lay diagnosis-specific findings are needed to properly assess and diagnose open angle glaucoma, optic atrophy, keratoconjunctivitis sicca, pinguecula, ptergium, meibomian gland dysfunction, presbyopia, and nuclear sclerotic cataracts, and to determine their etiology. Jandreau; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In conclusion, upon consideration of all the evidence of record, including the July 2017 VA examination in which the examiner opined that there is no link between the Veteran's current disability manifested by impaired vision to include an eye disorder and his military service, the Board finds that service connection is not warranted. In sum, the criteria for service connection for a disability manifested by impaired vision to include an eye disorder have not been met. The evidence weighs against the Veteran's claim. Service connection for disability manifested by impaired vision, to include an eye disorder, must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a disability manifested by impaired vision, to include an eye disorder, is denied. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs