Citation Nr: 0006635 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 95-07 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for residuals of a left eye injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Associate Counsel INTRODUCTION The veteran served on active duty from July 1948 to July 1952. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied the claim. The veteran provided testimony at personal hearings before the RO in October 1994, and before the undersigned Board Member in August 1997. Transcripts of both hearings are of record. This matter was previously before the Board in January 1998, and May 1999. In January 1998, the Board denied service connection for residuals of a left wrist injury as not well- grounded, and remanded the remaining issues for additional development. Service connection was granted for residuals of a left great toe injury by a November 1998 rating decision. In view of the foregoing, the issue has been resolved and is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). When the case was returned to the Board in May 1999, the Board determined that the RO did not comply with the January 1998 remand directives with respect to the left eye claim, and remanded the case once again. It has now been returned to the Board for further appellate consideration. As a preliminary matter, the Board finds that the RO has substantially complied with the directives of the Board's prior remands, and that a further remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The evidence on file tends to show that the veteran was "sucker punched" in the left eye by a fellow marine while on active duty. 2. The medical evidence shows that the veteran has dry eye syndrome of the left eye. 3. Medical opinions are on file which relate the veteran's dry eye syndrome to his being "sucker punched" while on active duty. 4. The preponderance of the medical evidence shows that it is "unlikely" that the veteran's dry eye syndrome is due to his being "sucker punched" in the left eye while on active duty. CONCLUSION OF LAW The veteran's left eye disorder was not incurred in or aggravated by his period of active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background. The veteran's eyes were clinically evaluated as normal on his July 1948 enlistment examination. His vision was noted to be 20/20 for both eyes. The service medical records show no diagnosis of or treatment for eye problems during the veteran's period of active duty. On his July 1952 discharge examination, the veteran's eyes were clinically evaluated as normal. His vision was again found to be 20/20 for both eyes. A July 1973 VA orthopedic examination is on file which made no pertinent findings regarding the veteran's left eye. In various statements on file, including both of his personal hearings, the veteran has contended that he has a left eye disorder that is causally related to his military service. Specifically, he has stated that during service, he was "sucker punched" in the left eye area by a fellow marine in either 1951 or 1952, and that this injury resulted in a current left eye disorder. At his October 1994 personal hearing, he also testified that he was treated for this left eye injury, and released back to duty. He was told that it was not necessary for him to return for further medical treatment as it was just a muscle reaction. The veteran indicated that his left eye had started to bother him about 4 to 6 years earlier, and described his symptoms and treatment therefore. For example, he described an itchy/scratchy feeling of the left eye which he treated with eye drops. He testified that he did not have any problems with the right eye. At the August 1997 hearing, the veteran testified that he had no problems with his left eye prior to service. Similarly, he had no additional left eye problems during service after he was treated for being hit by the fellow marine. He indicated that his current problems did not begin until many years after service. The veteran testified that he had had no other left eye injuries. It is noted that the veteran's contention of being "sucker punched" in the left eye area by a fellow marine during service was corroborated by an April 1994 statement from a fellow service member with whom the veteran served. Various private medical records are on file concerning the veteran's left eye, including records from H. H. Phillips, D.O., dated from May 1993 to June 1994. Among other things, these records show that the veteran was diagnosed with dry eye syndrome. Also on file is an undated statement from Dr. Phillips, in which he reported that the veteran was reexamined in August 1997 and had been previously diagnosed with dry eye syndrome. Dr. Phillips further commented that it was conceivable that the veteran's dry eye syndrome was the result of trauma sustained from an injury during his military service. When the case came before the Board in January 1998, it was determined that the veteran's left eye claim was well grounded, and that additional development was necessary. Accordingly, the Board remanded the case for a VA ophthalmologic examination in order to determine the nature and severity of any disability involving the left eye. Further, in conjunction with the review of the veteran's claims folder, it was requested that the examiner render an opinion as to when any diagnosed eye disability was initially clinically manifested, and the degree of medical probability, if any, that any disability found during the examination involving the left eye was related to any incident which occurred during active duty. It was emphasized that the claims file was to be made available to the examiner prior to the examination. A VA eye examination was accorded to the veteran in July 1998. The examiner noted the veteran's account of his in- service eye injury, and his history of left eye problems. Following examination of both eyes, the examiner diagnosed hyperopia, and dry eye syndrome, both eyes. Moreover, the examiner noted that based upon the results of the Schirmer tear test, the veteran had dry eye syndrome in both eyes, which the examiner opined made it "unlikely that the condition [was] related to trauma in the left eye in 1951." However, while the examiner noted that the remand had been reviewed, it was not indicated whether or not the claims folder had been reviewed in conjunction with the examination. The RO confirmed and continued the prior denial in a November 1998 rating decision and concurrent Supplemental Statement of the Case. The RO specifically referred to the opinion of the July 1998 VA examiner in support of the decision to deny the claim. The veteran subsequently submitted a private medical statement from R. Levine, M.D., dated in December 1998. Dr. Levine noted that the veteran complained of a hypersensitivity in the left eye over the past 6 years, especially to smoke, wind, and bright light. Also, examination confirmed that the veteran did have dry eye syndrome in both eyes. Based on the foregoing, Dr. Levine opined that the veteran's "[symptomatology] in the left eye could relate to the eye injury during his service years." In a January 1999 Supplemental Statement of the Case, the RO acknowledged receipt of Dr. Levine's opinion, but found that it was based on a history provided by the veteran without consideration of the service medical records and other evidence on file. Therefore, the RO found that it did not outweigh the opinion of the VA examiner who examined the veteran, reviewed the claims file, and found that since the veteran had dry eye syndrome in both eyes it was unlikely that the condition was related to the trauma of the left eye in service in 1951. After the case was returned in May 1999, the Board found that it was not clear whether or not the July 1998 VA examiner actually reviewed the claims folder prior to the examination. Therefore, the Board was of the opinion that clarification was necessary, especially since the RO specifically relied on the proposition that the examiner reviewed the claims folder in denying the veteran's claim. Consequently, the Board remanded the case for the RO to clarify whether or not the July 1998 VA examiner had actually reviewed the veteran's claims folder. The examiner was to specifically state whether the claims folder was reviewed, including the opinions of Dr. Phillips and Dr. Levine. If and only if the original examiner was unavailable, then the RO was to obtain the requested information from another appropriately qualified individual. The claims folder was to be made available to this individual. Any further examination or testing deemed necessary was to be accorded to the veteran. Following the Board's remand, the evidence shows that the veteran was scheduled to undergo a new examination with the same physician who conducted the July 1998 VA examination, but that the veteran refused. The veteran reportedly felt that this physician would be biased, and requested an examination by a different physician. Accordingly, the veteran underwent a new VA examination by a new physician in July 1999. This examiner noted that the claims folder, as well as the opinions of Dr. Phillips and Dr. Levine, had been reviewed. Following examination of the veteran, the examiner's diagnostic impression was that the veteran did have a dry eye condition which could certainly be contributing to his ocular symptoms. The examiner noted the opinions of the July 1998 VA examiner, Dr. Levine, and Dr. Phillips regarding the etiology of this dry eye condition. For example, the examiner noted that Dr. Levine and Dr. Phillips related the condition to the veteran's initial trauma, but gave no explanation to back up their opinions. Based on the foregoing, the examiner opinion that it was possible, "although unlikely," that the veteran's dry eye condition was secondary to the ocular trauma sustained in 1952. Thereafter, the RO confirmed and continued the denial of service connection for residuals of a left eye injury in an October 1999 Supplemental Statement of the Case. The RO specifically noted the July 1999 VA examiner's opinion in support of this decision. In a February 2000 statement, the veteran's representative contended that the July 1999 VA examiner did not provide any "explanation" to back up his opinion. Further, the representative contended that in reviewing the evidence of record, there was an approximate balance of positive and negative evidence which did not satisfactorily prove or disprove the veteran's claim. Therefore, the RO contended that the provisions of 38 C.F.R. § 3.102 warranted a grant of service connection in the instant case. Also on file are various private and VA medical records concerning the veteran's feet that make no pertinent findings regarding the veteran's left eye. Legal Criteria. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 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 disability was incurred in service. 38 C.F.R. § 3.303(d) (1999). Congenital or developmental defects and refractive error of the eye are not diseases or injuries within the meaning of service connection legislation. 38 C.F.R. §§ 3.303(c), 4.9. The threshold question that must be resolved is whether the veteran has presented evidence of a well-grounded claim. A well-grounded claim is a plausible claim, that is, a claim which is meritorious on its own or capable of substantiation. An allegation that a disorder is service connected is not sufficient; the veteran must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a) (West 1991); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App 91, 92-93 (1993). In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); evidence of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and evidence of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In addition to the general standard set forth in Caluza v. Brown, chronicity and continuity standards can also establish a well-grounded claim. Savage v. Gober, 10 Vet. App. 488 (1997). The chronicity standard is established by competent evidence of the existence of a chronic disease in service or during an applicable presumption period; and present manifestations of the same chronic disease. The continuity standard is established by medical evidence of a current disability; evidence that a condition was noted in service or during a presumption period; evidence of post- service continuity of symptomatology; and medical, or in some circumstances, lay evidence of a nexus between the present disability and the post- service symptomatology. This type of lay evidence, for purposes of well groundedness, will be presumed credible when it involves visible symptomatology that is not inherently incredible or beyond the competence of a lay person to observe. Savage, supra. Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence is necessary to establish a well-grounded claim. Lay assertions of medical causation or a medical diagnosis cannot constitute evidence to render a claim well grounded. Grottveit, 5 Vet. App. at 93. Analysis. As noted above, the Board has already determined that the veteran's claim of entitlement to service connection for residuals of a left eye injury is well grounded. The veteran's account of being "sucker punched" in service is presumed credible for the purpose of determining whether his claim is well grounded. Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Furthermore, this account has been corroborated by the April 1994 buddy statement. The medical evidence shows a current left eye disability, dry eye syndrome. Also, the evidence indicates that this is an acquired disability, and not a congenital condition or refractive error. See 38 C.F.R. §§ 3.303(c), 4.9. Moreover, the opinions of Dr. Phillips and Dr. Levine provide the requisite medical nexus evidence. Thus, the claim is well grounded. Caluza at 506. Adjudication of the veteran's claim of service connection for residuals of a left eye injury does not end with the finding that the case is well grounded. In determining that the veteran's claim is well grounded, the credibility of evidence has been presumed and the probative value of the evidence has not been weighed. However, once the claim is found to be well grounded, the presumption that it is credible and entitled to full weight no longer applies. In the adjudication that follows, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of material contained in a record; every item of evidence does not have the same probative value. Because the claim is well grounded, VA has a duty to assist the veteran in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). Here, VA has accorded the veteran several examinations in relation to this claim, obtained medical records pertaining to the treatment he has received for his left eye problems, and provided him with the opportunity to present pertinent testimony at two personal hearings. There does not appear to be any pertinent medical evidence that is not of record or requested by the RO. Thus, the Board finds that VA has fulfilled its duty to assist the veteran in developing the facts pertinent to this claim. In the instant case, the Board finds that the preponderance of the evidence is against the veteran's claim that his current dry eye syndrome of the left eye was incurred in or aggravated by his period of active duty. As stated above, the opinions of Dr. Phillips and Dr. Levine relate the veteran's current left eye disorder to his being "sucker punched" while on active duty. However, the opinions of both the July 1998 and the July 1999 VA examiners were that it was "unlikely" that the veteran's current left eye disorder was causally related to service. Initially, the Board notes that the wording of the opinions proffered by both Dr. Phillips and Dr. Levine are more equivocal than those rendered by the VA examiners. More importantly, the July 1999 VA examiner noted that he had reviewed the veteran's claims folder, including the opinions of Dr. Phillips, Dr. Levine, and the July 1998 VA examiner. The evidence on file does not indicate that either Dr. Phillips or Dr. Levine reviewed the veteran's claims folder. As stated above, the Board has already determined that it is not clear that the July 1998 examiner actually reviewed the claims folder either. Thus, the Board concludes that the opinion of the July 1999 VA examiner is entitled to the most weight regarding the issue of whether or not the veteran's left eye disorder is causally related to service. Since the July 1999 VA examiner opined that it was "unlikely" that the veteran's left eye disorder was related to service, including the injury he sustained when "sucker punched," the Board concludes that the preponderance of the evidence is against the claim, and it must be denied. The veteran's representative has contended that the opinion of the July 1999 VA examiner is insufficient in that no "explanation" was proffered to support his opinion. However, no explanation was proffered by Dr. Phillips or Dr. Levine for their opinions either. Further, the Board notes that the opinion of the July 1999 VA examiner was based upon both an examination of the veteran, and a review of the claims folder, including the opinions of Dr. Phillips, Dr. Levine, and the July 1998 VA examiner. Thus, the Board concludes that the July 1999 VA examiner had a sufficient foundation upon which to base his opinion. For the reasons stated above, the Board has determined that this opinion is entitled to the most weight in the instant case. Moreover, as stated above, the July 1998 VA examiner opined that it was "unlikely" that the veteran's dry eye syndrome was due to the in-service left eye injury because the veteran had dry eye syndrome in both eyes. No competent medical evidence has been submitted which refutes this explanation proffered by the July 1998 VA examiner. In fact, it is noted that Dr. Levine actually confirmed that the veteran had dry eye syndrome in both eyes. As an additional matter, the Board notes that nothing on file shows that the veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Consequently, his contentions cannot support a grant of service connection in the instant case. See Grottveit at 93. For the reasons stated above, the Board finds that the preponderance of the evidence is against the veteran's claim. As the preponderance of the evidence is against the claim, the reasonable doubt doctrine codified at 38 C.F.R. § 3.102 is not for application in the instant case. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for residuals of a left eye injury is denied. Gary L. Gick Member, Board of Veterans' Appeals