BVA9500160 DOCKET NO. 93-08 379 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a bilateral eye disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. E. Coppola, Associate Counsel INTRODUCTION The veteran had active service from September 1987 to September 1991. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of April 1992 from the Columbia, South Carolina, Regional Office (RO), which denied service connection for a bilateral eye disorder, gum irritation and flat feet. In the October 1992 substantive appeal, the veteran withdrew the issues of service connection for gum irritation and flat feet. In December 1992, the veteran submitted a claim for a disability rating in excess of 10 percent for his service-connected folliculitis with inflammatory pigment change. In April 1993, the RO denied that claim. That issue is not before the Board. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in not granting service connection for a bilateral eye disorder which he described as chronic eye irritation. He contends that the RO did not take into account or properly weigh the evidence of record, including the service medical records, Department of Veterans Affairs (VA) clinical evidence and statements submitted in support of the claim. The veteran maintains that during active duty in the Persian Gulf he experienced continuous eye irritations as a result of sand being blown about by the wind. He asserts that he received medical treatment for his eyes at that time. He argues that he has developed a chronic bilateral eye irritation as a result of that sand exposure; therefore, service connection is warranted. 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 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 veteran has not submitted evidence of a well- grounded claim for service connection for a bilateral eye disorder. FINDING OF FACT The evidence does not establish that the veteran currently has any disability from claimed irritation of the eyes by sand during service. CONCLUSION OF LAW The veteran has not submitted evidence of a well-grounded claim for service connection for a bilateral eye disorder. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The United States Court of Veterans Appeals (Court) has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 610 (1992). The Court has also held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Grottveit v. Brown, 5 Vet.App. 91, 93 (1993) (citing Murphy, at 81). The initial question is whether the veteran has submitted evidence of a well-grounded claim for a bilateral eye disorder. The veteran maintains that during active duty in the Persian Gulf he experienced continuous eye irritations as a result of sand exposure from the wind. He asserts that he received medical treatment for his eyes at that time. He argues that he has developed a chronic bilateral eye irritation as a result of that sand exposure. The service medical records do not reveal complaints or evidence of treatment of the eyes due to sand irritation. In a September 1991 statement, the veteran reported that he received treatment for his eyes while in Saudi Arabia. In the October 1992 substantive appeal, the veteran reported that he received treatment for his eyes at the 724th SPT. Bn. Unit Clinic following his return from the Persian Gulf. In any event, the available service medical records do not reveal treatment of the eyes due to sand exposure. These records show that he was seen in January 1989 for a corneal burn of the right eye, for which he was treated with a medicated eye patch. The following day the cornea was clear and the assessment was healing corneal burn. There are no further records of treatment of the eyes and the veteran waived his separation medical examination. The veteran has not indicated that he has been medically treated for his claimed eye disability since separation from service. The claims folder shows that the RO obtained VA outpatient treatment records dated from September 1991 to November 1992. A review of these records do not disclose any eye complaints. The veteran underwent a VA examination in October 1991. He reported a six month history of a gritty sensation from the lower eyelids and a history of multiple episodes of sand in both eyes during active duty, despite wearing goggles. Reportedly, he was seen by an ophthalmologist in Saudi Arabia. The examiner reported that the veteran's visual acuity was 20/20, bilaterally. The visual fields were full, the pupils were 3+ reactive without afferent pupillary defect and adnexal examination was unremarkable. The eyelids were within normal limits and the upper eyelids were double everted without evidence of foreign bodies. The conjunctiva was quiet, the corneas were clear, the irises were without lesions and the lenses showed no opacities. Fundus examination showed the macula, vessels and discs to be within normal limits, bilaterally. The examiner's impression was a history of sand to both eyes with complaints of persistent gritty sensation, bilaterally. The examiner stated that the examination showed "no evidence of foreign body or chronic irritation." The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. (Citation omitted.) In the absence of proof of a present disability there can be no valid claim." Brammer v. Brown, 3 Vet.App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet.App. 141, 143-44 (1992). In essence, the evidence does not establish that the veteran currently has any disability due to claimed irritation of his eyes by sand during service. Although the veteran has indicated that he experiences continuous eye irritation, he is not competent to medically associate his subjective complaints to sand exposure during active service. The Court has also held that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992), see also Grottveit v. Derwinski, 5 Vet.App. 91, 93 (1993) (Court held that lay assertions of medical causation cannot constitute evidence to render a claim well grounded). Of similar importance is the lack of medical evidence showing chronic eye irritation. The Board finds that there is no supporting evidence sufficient to justify a belief by a fair and impartial individual that the claim is plausible. 38 U.S.C.A. § 5107(a). Consequently, the Board concludes that the veteran has not submitted evidence of a well- grounded claim. Id. ORDER The application for service connection for a bilateral eye disorder is dismissed. JANE E. SHARP Member, Board of Veterans' Appeals (Continued on next page) 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.