Citation NR: 9636088 Decision Date: 12/20/96 Archive Date: 12/24/96 DOCKET NO. 94-25 689 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUE Entitlement to service connection for the residuals of chemical burns to the eyes. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Roberto D. DiBella, Associate Counsel INTRODUCTION The veteran had active duty from September 1968 to August 1972. This appeal arises from a June 1993 decision by the RO. During the course of this appeal, the veteran has raised additional matters, including that of entitlement to service connection for the residuals of a back injury. These other matters have not been developed for appellate review and are referred back to the RO for any indicated action. (The RO had specifically informed the veteran at his personal hearing in October 1994, and through a December 1994 letter, that if he wanted to appeal this issue to the Board of Veterans' Appeals (Board), he had to file a Substantive Appeal; however, the veteran failed to do so.) CONTENTIONS OF APPELLANT ON APPEAL The veteran claims that he currently has a bilateral eye condition which is due to chemical burns he had sustained to his face while aboard a Naval vessel in service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence is insufficient to justify a belief by a fair and impartial individual that the veteran has presented a well-grounded claim of service connection for the residuals of chemical burns to the eyes. FINDINGS OF FACT 1. The veteran is shown to have received chemical burns to the face while in service; however, at the time of his discharge from service, his eyes were found to be within normal limits, and the first recorded objective findings of actual eye pathology were noted approximately 16 years after service in 1988. 2. The veteran has not presented any competent evidence to show that he currently suffers from an acquired eye disability which is due to disease or injury which was incurred in or aggravated by service. CONCLUSION OF LAW A well-grounded claim for service connection for the residuals of chemical burns to the eyes has not been presented. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991 & Supp. 1996); 38 C.F.R. § 3.102, 3.303, 3.655 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. HISTORICAL The service medical records show that the induction examination, conducted in February 1968, noted 20/20 vision in the right eye, uncorrected; 20/40 vision in the left eye, uncorrected; and a diagnosis of defective vision. He was assigned an H2 profile for his eyes (may impose some limitations on classifications and assignments). In September 1968, his vision was noted as having been 20/20 in the right eye, uncorrected; and 20/30 vision in the left eye, uncorrected, respectively. The service medical records further show that on April 26, 1971, the veteran had suffered chemical burns to both eyes from a cleaning solvent. The physical examination revealed minimal inflammation on the conjunctiva, but the pupils reacted equally and accommodation was good. The veteran was treated with normal saline solution and bacitracin optical ointment. On November 1, 1971, the veteran complained of reading difficulty light sensitivity, and blurred vision. Vision in his right eye was 20/20, and 20/70 in his left eye, respectively. The left eye was found to be amblyopic; however, no medication was prescribed for either eye. In his separation examination, conducted in August 1972, a physical examination of the eyes was within normal limits, and vision was found to be 20/20, uncorrected in both eyes. VA outpatient records from September 1988 to December 1992 show the following. On September 20, 1988, the veteran complained of pain and pressure in his left eye, and light made his condition worse. The diagnosis was that of rule out iritis. On September 28, 1988, a history was noted of no previous episodes of iritis; however, the veteran was diagnosed with resolving iritis. Vision at the time of this examination was 20/20 in the right eye, and 20/30 in the left eye, respectively. On July 20, 1991, a recurrent and sore photophobic and miotic pupil was noted in the left eye. On July 23, 1991, inflammation and difference in pupil size were back to normal. In April 1992, the veteran complained of redness and aching in his left eye; he had been working with concrete. The diagnosis was that of iritis. The records further discuss treatment for a bleeding ulcer, knee pain, and headaches. A submitted employment medical record shows treatment for right ankle pain in June 1994. In a VA examination, conducted in May 1993, the veteran complained of twitching in his eyes on occasion, and that he was not seeing as well as he had used to. He further related a history of having had lazy left eye as a child in school. The physical examination of the eyes revealed vision of 20/20 in the right eye, and 20/50 in the left eye; however, he had not had any glasses to correct his vision. External ocular movements were normal, and pupils were equal and reacted to light and accommodation. The eye grounds were normal. The pertinent diagnosis was that of myopia in the left eye, and presbyopia in both eyes. In a VA Agent Orange examination, conducted in August 1993, the physical examination of the eyes revealed normal extra ocular motions and pupils; a pertinent notation of refractive error as was described in the May 1993 VA examination was recorded. The veteran appeared for a personal hearing before the RO in October 1994. The veteran testified that, while cleaning on board a Naval ship in service, he was splashed accidentally with cleaning solvent in the face. He added that he was not positive whether he had been left with residuals from the accident; however, he complained of headaches, twitching in the right eye and blurred vision. Specifically, he would have to focus to his eyes to determine color codes in his job as an electrician. The veteran did acknowledge that his left eye was already poor, but, he testified that his vision had become worse by the time he had left service. He also testified that the doctor who had treated him in service had never explained his prognosis and that, in the 1980’s, he had had a lot of water in his eyes. In his VA Form 21-526, received in January 1993, the veteran noted that he had never had insurance to be seen by a doctor in regards to his claimed disabilities. In a February 1993 letter to the veteran, the RO requested evidence relating to treatment for his claimed disabilities since his discharge from service. II. ANALYSIS In general, service connection may be granted for a disability shown to be due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1996). However, before the veteran's claim can be addressed, he must first present evidence sufficient to justify a belief by a fair and impartial individual that the service connection claim is well- grounded. See 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1996). The United States Court of Veterans Appeals (Court) has held that the veteran must submit evidence of a well- grounded claim, one that is plausible or meritorious. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If the veteran has not met that burden, there is no further duty on the part of the VA to assist the veteran with the development of that claim. 38 U.S.C.A. § 710(d)(5) (West 1991 & Supp. 1996). See also Boeck v. Brown, 6 Vet.App. 14, 17 (1993) and Grivois v. Brown, 6 Vet.App 136, 140 (1994). When, as in this case, the issue involves a medical question of diagnosis or causation, competent, medical evidence is required. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Statements and testimony from lay witnesses or the veteran in this regard are not sufficient to establish a plausible claim as they are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Moreover, the evidence must show that the veteran currently has a disability stemming from service. Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992). Therefore, in order to have a well-grounded claim, the veteran must submit competent medical evidence of a current medical disability; competent evidence of an incurrence or aggravation of a disease or injury in service; and, a nexus between an inservice injury or disease and a current disability. Caluza v. Brown, 7 Vet.App. 498, 506 (1995). The crucial determination before the Board is whether the veteran has submitted evidence sufficient to demonstrate that he currently suffers from an acquired eye disability due to a disease or injury which was incurred in or aggravated by service. The induction examination, conducted in February 1968, noted a diagnosis of defective vision, and the veteran was assigned an H2 profile. The most recent VA examination showed a diagnosis of refractive error, confirming a previous diagnosis in the May 1993 VA examination in which the veteran was diagnosed with myopia in the left eye and presbyopia in both eyes. By operation of law, the veteran cannot be awarded service connection for any refractive error noted in service. 38 C.F.R. § 3.303(c) (1995); Sabonis v. Brown, 6 Vet.App. 425 (1994). Therefore, in order for the veteran to be granted service connection, he must submit evidence of a current eye disability other than refractive error and medical evidence linking the claimed condition to the chemical accident in service. Unfortunately, the veteran has not presented such evidence. The service medical records do show that the veteran had suffered chemical burns to both eyes from a cleaning solvent while in service. He was treated with normal saline solution and bacitracin optical ointment, and only one complaint pertaining to his eyes was noted in his remaining 16 months of service. In November 1991, the veteran complained of reading difficulty, light sensitivity and blurred vision; however, he was again diagnosed with refractive error in the left eye, and no medication was prescribed for either eye. In addition, in his separation examination, a physical examination of the eyes was within normal limits. Furthermore, while the VA outpatient records noted several diagnoses of iritis, the August 1993 and May 1993 VA examinations noted no abnormal findings in the veteran’s eyes other than his refractive error. Specifically, the examinations revealed normal external ocular movements and eye grounds, and his pupils were equal and reacted to light and accommodation. Therefore, the veteran has submitted no competent evidence to support his lay assertions that he currently suffers from an acquired eye disability due to a disease or injury which was incurred in or aggravated by service. Although the veteran has offered an opinion that he has an eye disorder caused by chemicals burns in both eyes during service, he is not, as lay a person, competent to offer a medical opinion as to the cause of his claimed eye disorder. Epps v. Brown, 93-438 (U.S. Vet.App. August 27, 1996); Espiritu, supra; See also Franzen v. Brown, 9 Vet.App. 235 (1996). (The only evidence of in the record as to the cause of the veteran’s disability was his assertions and hearing testimony. Since his lay testimony is not competent evidence of medical causation, the veteran’s claim cannot be well grounded.) The Board would note the fact that the VA authorized an examination for the veteran’s claimed condition, does not mean that the veteran, who did not fulfill his statutory requirements to establish a well-grounded claim, is entitled to the duty to assist. Slater v. Brown, 9 Vet.App. 240 (1996) (Whether or not a VA examination should be conducted under 38 C.F.R. § 3.326 is an issue that arises only where a claim has already been determined to be well-grounded). Consequently, the veteran has not presented a well-grounded claim. The Board would note, that in its Informal Brief Presentation, the veteran’s representative presented extensive arguments suggesting that recently modified provisions of the VA Adjudication Manual, M21-1 (M21-1) have overruled past decisions by the Court. Specifically, the representative argues that the duty to assist exists even if the veteran has not presented a well-grounded claim and that this position is supported by M21-1, Part III, 1.03(a) (Change 50) (Feb. 25, 1996) and M21-1, Part VI, 2.10(f) (Change 48) (Aug. 5, 1996). As a preliminary matter, the Board would note that M21-1 Part VI, 2.10(f), which states “the duty to assist will prevail while development is undertaken,” is not applicable. A careful reading of this provision clearly shows the initiation of this “development” is predicated on the claim being “potentially plausible on a factual basis” (essentially, a well-grounded claim). Consequently, development is undertaken pursuant to this provision once a the veteran has presented a well-grounded claim. As he has not, this provision is not applicable to the veteran’s case. M21-1 Part III, 1.03(a) states “[b]efore a decision is made about a claim being well-grounded, it will be fully developed.” The Court has held repeatedly that only when a claim is well-grounded does the VA have an obligation to “assist such a claimant in developing the facts pertinent to the claim.” Robinette v. Brown, 8 Vet.App. 69, 77-74 (1995). See also Epps v. Brown No. 93-438 (U.S. Vet.App. Aug. 27, 1996); Beausoleil v. Brown, 8 Vet.App. 459, 465 (1996). Therefore, until a the veteran has submitted a well-grounded claim, the VA is under no duty to establish the elements of his claim. Robinette, 8 Vet.App. at 76 (i.e. conduct a thorough and comprehensive medical examination to establish a causal nexus between an inservice injury and a current disability). Therefore, the requirement to “fully develop” a claim pursuant to M21-1 Part III, 1.03(a) is not analogous to the duty to assist which arises after a well-grounded claim has been submitted. The requirement applies to ensuring that the veteran has not filed a defective or incomplete application which would make development of the claim not feasible. Robinette, 8 Vet.App. at 78. Consequently, “fully developed” under the M21-1 means if the veteran’s application for benefits is incomplete, the VA shall notify the veteran of the evidence necessary to complete the application. Id. at 80. However, the veteran has not put the VA on notice that competent evidence exists that supports his lay assertions that he currently suffers from an acquired eye disability which is linked to a disease or injury while in service. In his VA Form 21-526, the veteran specifically noted that he had never been seen by a doctor in regards to his claimed disabilities. Furthermore, the RO has ensured that the veteran has submitted a complete application. In a February 1993 letter to the veteran, the RO requested evidence relating to treatment for his claimed disabilities since his discharge from service. Since February 1993, a private employment medical record and VA outpatient records have been associated with the claims folder. In addition, the RO ordered two VA examinations though it was under no obligation to do so. Consequently, the RO has met its burden under 38 U.S.C.A. § 5103(a) by informing the veteran of the evidence necessary to complete his application for benefits. Therefore, the Board is of the opinion that the veteran’s claim has been fully developed as the RO has associated with the claims folder all the available medical records for consideration. Under the circumstances of this case, the VA has not been put on notice that any other relevant evidence exists, or could be obtained, which, if true, would make the veteran’s claim “plausible.” Robinette, 8 Vet.App. at 80. Consequently, a remand is not appropriate under the facts of this case. Since there is no competent evidence to establish a nexus between the chemical injury in service and any currently demonstrated eye disability, a well-grounded claim has not been presented. Caluza v. Brown, 7 Vet.App. at 506; See also Brammer; Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). Accordingly, since he has not presented a well-grounded claim, the Board finds that service connection for the residuals of chemical burns to the eyes is not warranted. ORDER `As a well-grounded claim for service connection for the residuals of chemical burns to the eyes has not been presented, the appeal is denied. STEPHEN L. WILKINS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). 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