Citation Nr: 9934470 Decision Date: 12/09/99 Archive Date: 12/16/99 DOCKET NO. 96-48 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for an eye disorder. REPRESENTATION Appellant represented by: Colorado Department of Human Services, Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had essentially continuous active service from March 1961 to June 1984. This appeal was initially brought, in pertinent part, to the Board of Veterans' Appeals (the Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, from a July 1996 rating decision which denied service connection for defective vision, left ear hearing loss, a dental condition, a low back disorder, and a left shoulder disability. During the course of the current appeal, the RO granted service connection for residuals of fractures of the right ring finger and the left little finger, and noncompensable evaluations were assigned for each disability. The veteran provided testimony before a Hearing Officer at a RO hearing held in January 1997, of which a transcript is of record. [Tr.] The veteran indicated at that time that he was withdrawing his pending request to also testify before a Member of the Board at the RO. Tr. at 1. He subsequently verified that in correspondence directly with the Board dated in July 1997. In a decision in May 1998, the Board granted service connection for left ear hearing loss, a low back disability, and left shoulder acromioclavicular joint separation (tendinitis). The Board also found that the veteran had not submitted a well-grounded claim for entitlement to service connection for a dental condition, and the appeal as to that issue was denied. Finally, the Board remanded the issue of service connection for an eye disorder. The Board also directed the RO to consider a pending claim for service connection for tinnitus. In a rating action in August 1998, the RO granted service connection for tinnitus and assigned a 10 percent rating. The tinnitus issue is no longer part of the current appeal. In a rating action in August 1998, the RO assigned a noncompensable rating for the veteran's now service-connected bilateral defective hearing. [Service connection was already in effect for defective hearing of the right ear]. The RO also assigned a 20 percent rating for the low back disorder, and a 20 percent rating for the left shoulder disorder. These issues are no longer part of the current appeal. In a rating action in June 1999, the RO continued to deny the claim for service connection for an eye disorder, now characterized as defective vision and "dry eyes", and the case is again before the Board for further appellate review on that issue alone. FINDING OF FACT There is no competent evidence linking a current eye disease or injury to the veteran's service. CONCLUSION OF LAW The claim for service connection for an eye disorder is not well grounded, and there is no further duty to assist the veteran in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Criteria The threshold question to be answered is whether the veteran has presented evidence of a well grounded claim; that is, a claim which is plausible and meritorious on its own or capable of substantiation. If he has not, his appeal must fail. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Case law provides that although a claim need not be conclusive to be well grounded, it must be accompanied by evidence. A claimant may submit some supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Dixon v. Derwinski, 3 Vet. App. 261, 262 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis), of an incurrence or aggravation of a disease or injury in service (lay or medical evidence), and a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). In determining whether a claim is well grounded, the claimant's evidentiary assertions are presumed true unless inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). Where the determinative issue involves the question of a medical diagnosis or causation, only individuals possessing specialized training and knowledge are competent to render a medical opinion. Espiritu v. Derwinski, 2 Vet. App. 192 (1992). The United States Court of Appeals for Veterans Claims (Court) has held that if a veteran fails to submit a well- grounded claim, VA is under no duty to assist him/her in any further development of the claim. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); 38 C.F.R. § 3.159(a) (1999). More recent cases have been even more definitive in precluding such assistance in the absence of a well-grounded claim. Service connection may be established for disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). The provisions of 38 C.F.R. § 3.303(c) (1999) provide that refractive errors "are not diseases or injuries within the meaning of applicable legislation." For a 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 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. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Regulations also provide that 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) (1999). Service connection may also be granted for a disorder which is proximately due to, the result of, or aggravated by a service connected disease or injury. 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). In this, and in other cases, only independent medical evidence may be considered to support Board findings. If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Moreover, it remains the duty of the Board as the fact finder to determine credibility of the testimony and other lay evidence. See Culver v. Derwinski, 3 Vet. App. 292, 297 (1992). And lay persons are not competent to render testimony concerning medical causation. See Grottveit v. Brown, op. cit. Service connection may be established through competent lay evidence, not medical records alone. Horowitz, op. cit. But a lay witness is not capable of offering evidence requiring medical knowledge. Espiritu v. Derwinski, op. cit. In any event, the credibility and weight to be attached to medical opinions are within the province of the Board as adjudicators. See Guerrieri v. Brown, 4 Vet. App. 467, 470- 71 (1993). The Board is not bound to accept medical opinions which are based on history supplied by the veteran where that history is unsupported by the medical evidence. Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal, op. cit.; and Guimond v. Brown, 6 Vet. App. 69 (1993). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, op. cit. When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Factual background The veteran has argued that he developed visual problems in service either as a result of his military job, which involved communications center radar computer monitor watching, or as a result of eye strain due to his being exposed to the brightness of snow in Greenland. On entrance examination dated in February 1961, the veteran's visual acuity was 20/20, bilaterally on distant vision; he checked that he had no history of eye problems. On service examination in February 1965, the veteran's visual acuity was measured as 20/20, bilaterally, on both near and distant vision. On the veteran's re-enlistment examination dated in June 1965, the veteran checked that he had no eye problems, and examination showed no eye disabilities. Visual acuity was measured as 20/20, bilaterally on distant vision, and near vision was Jaeger(J)-1. On a physical examination for assignment to a remote location, conducted in Arizona in June 1966, the veteran's visual acuity was 20/20. On a physical examination in October 1966, the veteran checked that he had no eye trouble. A clinical report in September 1972 when the veteran was in Japan was that he had complained of bilateral conjunctival infection and burning. Bilateral conjunctivitis was diagnosed and Vasocidin was prescribed. In October 1972, while in Japan, the veteran complained that putty had been put in his eye 2 weeks before. He had been given Vasocidin at the time. That prescription was continued on a 4 times per day basis. On a periodic examination in July 1982, the veteran reported that he wore contact lenses. Visual acuity was 20/30 in the right eye on distant vision, 20/20 in the left eye; near vision was 20/25 in the right eye, 20/30 in the left eye. Service medical records show that while at Lowry Air Force Base (AFB) later in July 1982, the veteran was seen for an eye examination. Funduscopic examination was normal; pupils were normal. He was given a new prescription for glasses for his diagnosed myopia. Distant visual acuity was 20/30 in the right eye, 20/20 in the left eye, correctable bilaterally to 20/20. Near vision was 20/20 in the right eye, 20/30 in the left eye, correctable bilaterally to 20/20. A Department of Defense (DOD) Form 771 is of record dated in December 1982 showing that the veteran had been given a new prescription for glasses. On an examination conducted in March 1984, the veteran checked that he had had "eye trouble" and clarified that this referred to his personal opinion that he had noticed a gradual loss of vision since 1982. On examination, he stated that his vision had gotten worse since March 1983. The examiner measured his visual acuity as 20/50 in the right eye, corrected to 20/17 on distant vision; and 20/17, uncorrected in the left eye on distant vision. Refraction was described thereon. For near vision measurement, his right eye was 20/50, uncorrected, and left eye was 20/100, uncorrected, correctable to 20/20 bilaterally. The pertinent diagnosis was defective distant and near visual acuity, bilaterally, corrected. In April 1984, a DD Form 741 showed that the veteran had been seen in an eye consultation. He had not brought his old prescription glasses for distance correction. He had been referred from an examination after complaining of decreased visual acuity. On examination, his present correction was shown to result in far vision of 20/30-1 in the right eye, and 20/20 in the left eye. A new trial bifocal prescription was given which brought visual acuity in all planes to 20/20. A DD 771 is of record dated in April 1984 showing that the new prescription had been filled. Years after service, in June 1993, the veteran was seen as a retiree at a service facility, after having had possible battery acid splashed into his eyes the day before while fixing his car. Initial assessment was that conjunctivitis was possible secondary to corneal uveitis. However, examination was entirely normal except for slight conjunctival irritation. Fluoroscopic examination showed no corneal abrasion. An ophthalmologist was consulted and the veteran was given eye ointment for 3 days only. At the hearing at the RO in January 1997, the veteran testified that he had been required to look at computer screens several hours per day in his military specialty, and that this caused eye problems. Tr. at 7. The veteran was requested to provide further information concerning his post-service eye complaints and care. He responded in detail in correspondence dated in October 1998 as to his visual acuity at entrance as compared to separation, and attributed to diagnosed myopia. He had unproductively endeavored to obtain additional service records from a service facility near his home. Correspondence from that facility was filed showing that he had in fact endeavored to do so, and that service records were not kept there but in St. Louis and VA would have to get them at that location. It is noted that many of the records identified and described above are now located in the veteran's claims file (rather than service medical records folder, per se) and reflect the results of post-service VA search for the veteran's records. It is also noted that at the time of the veteran's inservice evaluations in 1984, it was noted that some service records were then in a lost state. These were in part secured as a result of the VA search. On VA examination in April 1999, the veteran complained that his vision had decreased and he had developed the need for glasses. He reported that he had had a battery acid injury "when he was in service" which might have caused visual defect. On examination, the veteran's best corrected visual acuity was 20/20 in both eyes. He was able to read Jaeger-I print. His actual glass prescription was recorded. The veteran gave no other history of injuries, infections, etc. although he said he had some burning and stinging on occasion which was relieved by Visine. The remainder of the eye examination including cornea, iris, anterior chamber and lens were normal. Extraocular movements were full. He was orthophoric; pupils reacted equally to light; confrontation fields were full. Dilated fundus examination showed normal disc, macula and vessels with the retina attached in each eye. Intraocular pressure was 10 in the right eye and 13 in the left eye by applanation tonometry. The examiner noted that while had had not been wearing glasses at the time he entered service, the correction that he was given for distance was very very close to plain glass. Specifically, the refraction shown was almost as small a correction that could be made and still have it be a correction; that most people who were glasses had between 3.0 and 6.0 diopters, and the veteran's was not even 1.0 diopters. The examiner opined that the veteran's reading correction was a normal aging change and he saw normally with it. The examiner further noted that to have this small change in his distance correction and needing glasses would be attributed to normal aging change and not related to any battery acid or any other alleged service-related events. As to the veteran's second complaint, namely that he had burning and itching, the examiner attributed that to dry eyes which would also be an age-related phenomenon and was relieved by using Visine on occasion. Specifically, the examiner opined that this would not be related to any service-connected experiences. With glasses correction by glasses he saw "fine." This was essentially the same correction that was noted in prior records. The examiner concluded, in summary, that the veteran had a refractive error (with presbyopia) which was a normal aging change that was unrelated to his service or any injuries therein; and that he also had dry eyes which were also unrelated to service. Analysis Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that a claim is well grounded; that is, that a claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit, 5 Vet. App. at 92. Because the veteran has failed to meet this burden, the Board finds that his claim for service connection for a bilateral eye disorder is not well grounded and should be denied. Where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is possible or plausible is required. Murphy, 1 Vet. App. at 81. The claimant does not meet this burden by merely presenting his lay opinion because such evidence does not constitute competent medical authority. Espiritu, 2 Vet. App. 492. Consequently, lay assertions cannot constitute cognizable evidence, and as cognizable evidence is necessary for a well grounded claim, Tirpak, 2 Vet. App. at 611, the absence of cognizable evidence renders the veteran's claim not well grounded. Based upon the evidence of record, the Board finds that competent medical evidence has not been submitted which demonstrates that the veteran has an eye disorder that has been linked to active service or any incident therein. Specifically, a recent VA examiner concluded to the contrary, namely that the refractive error of his eyes was minimal and in any event, corrected to normal in both eyes; and that the dry eyes complaints at present were related to aging rather than any inservice incident. In any event, refractive error of the eyes is not considered a disease or injury for purposes of service connection. 3.303(c). The VA examiner has recently concluded that the veteran's eye abnormalities consist of refractive error, for which service connection is precluded, and dry eyes which were unrelated to service. Parenthetically, the Board notes that the alleged "battery acid in the eye" incident was after service not in it, but this becomes moot since the recent ophthalmological expert has opined that there are no current residuals as a result thereof in any event. In the absence of medical evidence of a present eye disability due to service or any incident therein, there is not a well-grounded claim. Even if the veteran's refractive error could be deemed a disease or injury, there is no competent evidence of current disability for VA purposes. The record shows that the veteran's vision is currently correctable to 20/20. In order to have a compensable level of disability, correctable vision would have to be limited to 20/50 or worse. 38 C.F.R. § 4.84a, Table V (1999). A current disability is not shown where there is no competent evidence of a compensable disability. Chelte v. Brown, 10 Vet. App. 268 (1997). The Board further notes that the veteran has recently been diagnosed as having dry eyes. There is no evidence of this condition in service, nor is there competent evidence linking the current dry eyes with service. In the absence of competent evidence linking the current dry eyes to service, the claim for service connection for that disorder is not well grounded. The Board finds that the evidentiary record does not contain competent medical evidence of any eye disease or injury, which has been linked to the veteran's period of service on any basis. The Board further finds that the RO advised the veteran of the evidence necessary to establish a well grounded claim, and the veteran has not indicated the existence of any post service medical evidence that has not already been requested and/or obtained that would well ground his claim. 38 U.S.C.A. § 5103(a) (West 1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). As the veteran has not submitted a well-grounded claim of entitlement to service connection for a bilateral eye disorder, the doctrine of reasonable doubt has no application to his case, and the claim must be denied. ORDER The claim for entitlement to service connection for an eye disorder to include defective vision and "dry eye" is not well grounded; the claim is denied. Mark D. Hindin Member, Board of Veterans' Appeals