Citation Nr: 1806309	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  11-06 018	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to service connection for a right eye injury.


REPRESENTATION

Appellant represented by:	New Jersey Department of Military and Veterans' Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. S. Willie, Counsel 

INTRODUCTION

The Veteran had active duty service in the United States Army from March 1979 to January 1987.  He had additional service in the National Guard.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida (Agency of Original Jurisdiction (AOJ)).  The Newark, New Jersey RO has assumed jurisdiction as AOJ.

In November 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ).  A transcript of that proceeding has been associated with the claims file.  This case was remanded for further development in May 2017 and November 2017.  


FINDING OF FACT

The Veteran does not manifest a current right eye which had an inservice onset or is otherwise causally related to active service.  


CONCLUSION OF LAW

The criteria for service connection for a right eye disability are not met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

VETERANS CLAIMS ASSISTANCE ACT OF 2000 (VCAA)

The Board initially notes that VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096(Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017).  A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction).

The Board also observes that the AOJ has complied with the Board's prior remand directives by obtaining VA opinion which is adequate to decide this case.

ANALYSIS 

The Veteran appeals the denial of service connection for a right eye disability.  After review of the record, the Board finds against the claim.  

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. §§ 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).  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). 

Service connection for congenital or developmental defects is precluded by regulation.  38 C.F.R. § 3.303(c).  Defects are defined as "structural or inherent abnormalities or conditions that are more or less stationary in nature."  O.G.C. Prec. Op. 82-90, 55 Fed. Reg. 45711 (1990).  However, congenital or development defects may be service-connected where a superimposed disease or injury occurs during, or as a result of, active service, which created additional disability.  VAOPGCPREC 82-90.

In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases listed at 38 C.F.R. § 3.309(a), if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)).

The Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement.  See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009).  In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence.  See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

To that end, service treatment records reflect a showing of congenital ptosis of the right eye in March 1982.  In April 1983, the Veteran had surgery on his right eye lid.  Subsequent service treatment records, however, are silent for any complaints, treatments, or manifestations of an eye disability.  Rather, the July 1986 separation examination disclosed the eyes were normal.  At that time, the Veteran denied having eye trouble. 

In November 1989, the Veteran reported intermittent right eye exotropia.  However, neither an onset date nor an etiology was provided.  In April 2009, the Veteran underwent cataract surgery and intraocular lens implant, bilaterally.  

During the September 2014 VA eye examination, the Veteran reported having hazy vision.  A history of pseudophakia diagnosed in the 1980s was noted.  Examination disclosed that the Veteran had a history of cataract and other lens conditions.  It was shown, however, that the cataracts had been removed and that there was no decrease in visual acuity or other visual impairment.  

During the August 2017 VA examination, a history of bilateral pseudophakia diagnosed in 1983 was noted.  Examination disclosed that the Veteran had a history of cataract and other lens conditions.  It was shown, however, that the cataracts had been removed and that there was no decrease in visual acuity or other visual impairment.  The VA examiner found that there does not appear to be any current right eye disability.  The Veteran had better than 20/40 bilaterally best corrected vision in each eye and no obvious visual field defects.  The examiner commented that a right eye injury was not described by the Veteran or seen on examination.  

In the November 2017 VA examination, the same VA examiner stated that the Veteran claimed no disability at the time of the examination and that no disability was discovered during the course of the examination.  He expressed that there was no objective evidence to warrant a condition at this time and that the Veteran had no right eye disability during his August 2017 examination.  The VA examiner noted that the Veteran's bilateral pseudophakia has no current residuals and that the eyelid surgery would be unlikely to cause a cataract or have any future effect on cataract formation as ptosis surgery is not known to have any effect on cataract formation. He found that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.  The VA examiner further found that there is no known connection between glare from firing weapons at night and cataract formation or exotropia.  Lastly, he expressed that his inability to attribute the Veteran's disability to any in service event was because he could not find any disability present.

The Board finds that the preponderance of the evidence establishes that the Veteran does not manifest a current right eye which had an inservice onset or is otherwise causally related to active service.  His right eye ptosis treated in service is medically deemed a congenital defect for which service connection cannot be granted.  38 C.F.R. § 3.303(c).  There is no competent evidence reflecting a superimposed injury on the right eye ptosis.  The Veteran generally alleges that his exposure to glare from firing weapons at night led to the development of intermittent exotropia and/or cataracts which required surgical correction.  However, the VA examiner opined that there is no known connection between glare from firing weapons at night and cataract formation or exotropia.  There is no competent opinion to the contrary.

The Board has also considered the Veteran's lay statements wherein he attributes his exposure to firing glares to the development of a chronic right eye disorder.  The Veteran is competent to describe right eye symptoms, but it is not within the competence of a layperson to speak to the diagnosis or etiology of a right eye disorder.  Thus, the 2017 VA examiner's opinion is most probative in its finding that the Veteran does not have a current right eye disability which had an inservice onset or is otherwise related to service.

To the extent that the Veteran is asserting a continuity of symptomatology since service, the Board finds that, as the Veteran does not manifest a "chronic" disease listed at 38 C.F.R. § 3.309(a), any claim of persistent and/or recurrent symptoms since service would be insufficient to support an award of service connection based upon continuity alone.  Walker, 708 F.3d 1331 (Fed. Cir. 2013).

In sum, the most probative evidence shows that the Veteran does not have a current right eye disorder related to service.  After weighing all of the evidence, the Board finds the preponderance of the evidence is against the claim and there is no doubt.  See 38 U.S.C. § 5107.



ORDER

Entitlement to service connection for a right eye injury is denied.  




____________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs