BVA9504083 DOCKET NO. 92-01 968 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right eye disability. REPRESENTATION Appellant represented by: James G. Curenton, Jr., Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Anderson, Counsel INTRODUCTION The appellant had active service from January 1944 to April 1946. This appeal arises from a March 1991 rating decision of the Montgomery, Alabama, Regional Office (RO). In that decision, entitlement to service connection for a right eye disability was denied. The appellant attended personal hearings conducted at the RO in January 1992 and before the Board of Veterans' Appeals (Board) in October 1992 and April 1994. In January 1993, the Board remanded the case to the RO for additional development of the evidence. CONTENTIONS OF APPELLANT ON APPEAL The appellant's primary argument is that the affidavit of a former assistant personnel director at the paper company where the appellant worked prior to military service, the appellant's honorable discharge, the May 1944 letter the appellant wrote to his mother, and a March 1949 letter from the appellant to the Department of Veterans Affairs (VA), completely refute any finding that the right eye injury occurred before the appellant's entry into military service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant'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 supports the claim for service connection for a right eye disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The appellant sustained a penetrating right eye injury in May 1944. 3. Service discharge examination in April 1946 revealed that the appellant had right eye visual acuity of 20/200 uncorrected and corrected, with an adherent leukoma. CONCLUSION OF LAW Residuals of a right eye injury were incurred in the appellant's wartime service. 38 U.S.C.A. §§ 1101, 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant has presented a claim which is plausible. The Board is satisfied that all relevant facts have been properly developed. There is no indication that there are additional pertinent records which have not been obtained. No further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. The law provides that service connection may be granted for disability resulting from personal injury suffered or disease contracted in wartime line of duty. 38 U.S.C.A. § 1110. The basis for the denial of service connection for a right eye disability by the RO primarily involves a determination that the service department found at the time of service discharge that the adherent right eye leukoma existed prior to service. For reasons expressed hereinafter, it is the judgment of the Board that the 1946 determination by the service department is open to question and that the preponderance of the other evidence of record weighs in favor of an allowance of the benefit sought. The majority of the appellant's service medical records (SMR) are not available, probably having been destroyed in a 1973 fire at the National Personnel Records Center. Including in personal hearing testimony, the appellant has acknowledged that his right eye was injured in his preteen years. Although he cannot now recall the mechanism of injury, the other evidence of record indicates that the eye was struck by a fishhook or fishing gig. The exact nature and extent of the preservice injury are unknown. It is not known from the available evidence what the condition of the appellant's right eye was prior to service, other than it is said to have been "fixed" early in service by surgery. Under the circumstances presented by the entire evidence of record, the Board believes that it certainly would be speculation to say that the residuals of right eye injury existed prior to service. In any event, the appellant was accepted into service in January 1944 with, in the absence of SMR, unknown medical findings. Obviously, however, any pathology of the right eye must have been less than disqualifying for military service. The service discharge examination is available and reveals that the appellant's visual acuity in April 1946 was 20/200 uncorrected and corrected for the right eye, and 20/20 uncorrected for the left eye. An adherent leukoma, right, was characterized as having existed prior to service. The appellant was discharged for the convenience of the Government--demobilization. In a statement dated in March 1949, the appellant reported that he had "lost" an eye in service, but he did not follow through with this claim. A private bacteriology report, dated in December 1973, indicates that the appellant's right lid grew coagulase, negative staph, and a few alpha strep. In a statement received in May 1985, L. Tyler, Jr., M.D., diagnosed refractive error of the left eye and an old penetrating injury of the right eye. On initial examination by VA in June 1985, the appellant had visual acuity of 20/0 for the right eye, and 20/100 corrected to 20/60 for the left. Displacement of the right pupil (45 degrees' exotropia) was noted and the fundus was not visualized. The left eye appeared normal. The appellant gave a history of a right eye injury in childhood. Also in June 1985, J. Jones, M.D., obtained a history that the appellant had a fish gig strike his right eye 50 years ago. Examination disclosed a displaced pupil to 4 o'clock limbus with mature cataract. There was right exotropia of 45 degrees. Ensuing medical records, VA and private, continued to reflect findings of an old injury of the right eye. On private hospitalization in July 1991, a history of a fish hook injury was repeated. In support of his claim, the appellant has submitted affidavits from family members and acquaintances. Perhaps the most probative of these documents is an April 1992 affidavit of a former assistant personnel director at a paper company where the appellant was employed prior to entering military service. This person averred that it was the insurance company's policy and the policy of the company to not hire anyone with poor eyesight. He stated that the appellant was employed in 1943, prior to his entry into military service, for work in the turbine room as an assistant operator or apprentice, which required the reading of gauges and other repeated use of the eyes. Even more probative is the original letter written by the appellant to his mother in May 1944. The Board observes that, in all likelihood, this letter or even a copy thereof would not have been available to the service department at the time of the appellant's service discharge examination. The proof that the adherent leukoma of the right eye was the result of an inservice injury is the description of the event related by the appellant in his letter to his mother, namely that a physician informed him that an empty cartridge hull had cut his right eye and the pupil dropped down into the cut and kept the fluid from running out of the eye. It is clear that the appellant would not have known this at that time if a doctor had not told him so. It was the opinion of the VA examiner in April 1993 that the corneal scarring and displacement of the pupil of the appellant's right eye strongly suggested a penetrating injury to the right eye as the etiology, and that the finding of an adherent leukoma at service discharge examination in 1946 also strongly suggests a penetrating injury to the right eye. The examiner indicated that, based on the medical facts presented, it is "impossible" to state whether this injury occurred during or before the appellant entered the service. However, the appellant does not have an "impossible" burden, just the burden of presenting an equipoise of the evidence as judged by a fair and impartial individual. The Board has the advantage of having the appellant's original letter written to his mother in 1944. The facts presented therein, even from a layman, are entirely consistent with the type of injury responsible for current right eye residuals. The Board has no doubt that the same injury in service caused a cataract of the right eye, which progressed as time went by as reported by VA and private examiners over the years. With resolution of doubt in the veteran's favor, the Board finds that service connection is warranted for residuals of a right eye injury. ORDER Service connection for residuals of a right eye injury is granted. U. R. POWELL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (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), 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 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.