Citation Nr: 20008472 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 15-05 682 DATE: January 31, 2020 ORDER Service connection for a bilateral eye disability, to include loss of vision, is granted. FINDING OF FACT The Veteran has a current bilateral eye disability, to include loss of vision, and the evidence of record is in relative equipoise regarding whether it is causally related to his military service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a current bilateral eye disability, to include loss of vision, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from September 1972 to January 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the Board at an April 2018 hearing before a Veterans Law Judge (VLJ) who is no longer a member of the Board; a transcript of such hearing is of record. Because the Veteran is entitled to an opportunity for a hearing before all Board members who will ultimately decide his appeal, a December 2018 letter was sent to the Veteran notifying him of the option to request an additional Board hearing with a Veterans Law Judge who would decide his appeal, and that failure to respond within 30 days would waive the option of the additional hearing. See Arneson v. Shinseki, 24 Vet. App. 379, 388-89 (2011). In January 2020, the Veteran responded to the March 2018 letter that he did not wish to appear at an additional hearing; therefore, no additional hearing is required. Service connection for a bilateral eye disability, to include loss of vision, is granted. The Veteran contends that the onset of his current bilateral eye disability occurred during his active military service, and for the reasons set forth below, resolving all reasonable doubt in favor of the Veteran, the Board agrees. Service connection is warranted where the evidence of record demonstrates that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty during active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge may be found to be service-connected where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Service connection for a disability requires competent and credible evidence of the following: (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. See Hickson v. West, 12 Vet. App. 247, 252 (1999). In the absence of a superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, hyperopia, presbyopia, and astigmatism, even if visual acuity decreased in service, as those are not a diseases or injuries within the meaning of applicable legislation relating to service connection. Id. Thus, VA regulations specifically prohibit service connection for refractive errors of the eyes unless the defect was subjected to a superimposed disease or injury that created additional disability. VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45,711 (1990). Where an approximate balance of positive and negative evidence exists regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must weigh against the Veteran’s claim in order for it to be denied. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). For the reasons set forth below, the Board finds the evidence of record to be in relative equipoise as to whether the Veteran’s bilateral eye disability is causally related to his active military service, and that he is therefore entitled to service connection on a direct basis. See 38 C.F.R. § 3.303(d). The Veteran contends that the onset of his bilateral eye symptoms occurred during his active military service immediately following an in-service injury during training in a gas chamber. Specifically, the Veteran has testified at his April 2018 Board hearing as follows: (1) during an in-service gas chamber field operation, faulty gas chamber equipment caused the strap on the Veteran’s gas mask to break, allowing weaponized gas to seep into his mask; (2) the Veteran attempted to seek medical treatment for his resulting eye injury but was denied any medical assistance; (3) immediately following his exposure to weaponized gas, the Veteran’s left eye became swollen and red and would “stick together;” (4) the Veteran self-treated his eye condition with eye drops and Visine, but never received medical treatment during service; (5) immediately after the gas chamber incident, while still in service, the Veteran began having intermittent problems with his bilateral vision for the first time, to including occasional “blurriness” and “floatingness, as far as the silhouette maybe would float a little;” (6) following the gas chamber incident, the Veteran was unable to hit targets at the rifle range; (7) after separating from the service, his vision continued to worsen; (8) post-separation, the Veteran has never been able to obtain a drivers’ license due to his inability to read street signs; (9) his bilateral vision problems onset immediately after the gas chamber incident and have continued to this day, worsening over time, resulting in his current legal blindness; and (10) the Veteran contends that his VA physician advised him that it is possible that his exposure to weaponized gas during his military service caused his current vision loss. The Board finds that the Veteran is competent to describe the observable, non-medical symptoms of his bilateral eye disability, such as blurriness, floating, redness, swelling, and vision loss, see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), and further finds his lay statements to be credible because they are consistent throughout the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (citations omitted). In addition, the record is replete with competent medical evidence that the Veteran is currently legally blind. Accordingly, the Board finds that the Veteran currently has a bilateral eye disability, and the threshold element for service connection, a current disability, has been established. Turning to an in-service injury, the Board finds that the Veteran is competent to describe his exposure to gas in a gas chamber and the resulting eye symptoms, such as pain, swelling, redness, and altered vision. See Falzone v. Brown, 8 Vet. App. 398, 406 (1995). In addition, the Board finds the lay statements regarding his in-service injury to be credible because, as stated above, such statements have been consistent throughout the record and are confirmed by the evidence of record regarding his military service. See Caluza, 7 Vet. App. at 511. The Board also notes that the Veteran’s service treatment records (STRs) are silent for any eye injuries or treatment during service; however, the Board acknowledges that lay evidence cannot be found to lack credibility solely on the basis of an absence of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Therefore, the Board finds the Veteran’s contentions regarding his in-service injury to be credible because they are consistent with other evidence in the record, as well as with the places, types, and circumstances of his service. See Caluza, 7 Vet. App. at 511. Accordingly, because the Veteran has provided competent and credible testimony, the Board finds that he has established an in-service injury. Finally, turning to the establishment of a nexus, the Board finds the evidence of record to be in relative equipoise regarding the causal relationship between the Veteran’s in-service injury and his current bilateral eye disability. The Veteran has submitted private treatment records from Dr. G, Chair of the University of Alabama Department of Ophthalmology, as well as Dr. G’s April 2018 letter confirming the Veteran’s diagnosis of angle recession in the right eye and blindness in the left eye and opining that given the current appearance of the right eye, there was likely some past blunt trauma to the right eye that may have led to the Veteran’s current right eye condition. In addition, Dr. G further opined that given the current condition of the left eye, to include corneal scarring, the Veteran’s condition is “certainly consistent with a prior chemical injury,” though it “could also be caused from numerous other etiologies.” The Board notes that in March 2019, the Veteran was afforded a VA examination which culminated in a report concluding that the Veteran’s current bilateral eye disability is less likely as not to be caused by or a result of his reported in-service injury based upon the following: (1) the record contains no documentation of any eye injury during service or report of blurring; (2) the Veteran reports that the gas mask hit him in the left eye, but the angle recession per Dr. G’s records in 2008 indicate the right eye; (3) the Veteran has a history of boxing which “could also contribute to blunt force trauma leading to angle recession;” and (4) there is “no way to validate without further documentation when or how the Veteran developed angle recession.” The March 2019 VA examination report further discounted Dr. G’s April 2018 letter on the following grounds: (1) Dr. G’s 2008 records indicate that the left eye cornea was free from scarring; (2) the record contains no evidence of left eye opacification until 2016; and, therefore, (3) corneal scarring or opacification is more likely due to chronic high intraocular pressures and not due to a chemical exposure as scarring was not present in 2008 and was not noted until 2016. However, as stated above, contemporaneous medical evidence is not required to establish a nexus for service connection, and it is well-established that VA regulations do not preclude service connection for a current disability where the record contains sufficient evidence to demonstrate a relationship between a veteran’s military service and a such disability. See Buchanan, 451 F.3d at 1337; 38 C.F.R. § 3.303(d). Accordingly, the Board finds that the reliance of the March 2019 VA examination report upon the absence of certain evidence in the Veteran’s STRs or earlier private treatment records to support the conclusion that the Veteran’s bilateral eye disability is unrelated to his active military service renders the report devoid of probative value on this issue. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the Board finds that the Veteran’s lay statements regarding the onset of his symptomatology, in combination with Dr. G’s April 2018 letter stating that the Veteran’s current left eye condition is “certainly consistent with a prior chemical injury,” establishes at least an approximate balance of positive and negative evidence regarding the onset of the Veteran’s current bilateral eye condition. Accordingly, in light of the foregoing, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the evidence of record is in relative equipoise as to whether the Veteran’s bilateral eye disability as likely as not had its onset during his active military service, as his lay statements regarding his in-service injury and the onset of his symptoms are entitled to significant probative value due to their consistency and credibility. (Continued on the next page)   Therefore, the Board finds that the application of the benefit of the doubt rule is warranted in this case, as there is at least an approximate balance of positive and negative evidence regarding the merits of issues material to the determination of the matter. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for bilateral eye disability is warranted in this case. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.