Citation Nr: 0004460 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 98-02 028A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of an eye injury. 2. Entitlement to a compensable rating for conjunctivitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and M. B. INTRODUCTION The veteran served on active duty from November 1969 to October 1971. This matter comes to the Board of Veterans' Appeals (Board) from rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. There is no competent medical evidence of a nexus between any currently diagnosed eye disability and service. 2. The veteran does not have active conjunctivitis and no residuals of conjunctivitis were found on examination. CONCLUSIONS OF LAW 1. The claim of service connection for residuals of an eye injury is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for a compensable evaluation for conjunctivitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.84a, Diagnostic Code (DC) 6018 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran contends that he incurred an eye injury during active service. He was on the U.S.S. Saratoga when an aerosol can blow up in his face resulting in abrasions and eye problems. It is also asserted that an increased evaluation is warranted for service-connected conjunctivitis. The Board notes that complete service medical records (SMRs) for the veteran's service period from November 1969 to October 1971 could not be located despite several efforts by the RO. SMRs that are available for review, however, from 1970 reflect that the veteran was seen for superficial facial scars following an altercation. He also complained of a left eye infection with drainage and swelling. Significant impairment of vision was not indicated. Postservice records include private and VA clinical records. Pertinent records include a VA neurological examination in June 1976. At that time, the veteran related constant swelling of the eyes. He said that he had been "beat up" in 1970 and that the injuries he incurred had primarily been around the eyes and face. He said that he had been hospitalized for a period of about three weeks experiencing blurry vision and diplopia. This had cleared, but he still complained of poor vision and headaches. The examination showed that the pupils were normal with no proptosis. His fundi were "OK." There was no nystagmus and strabismus. The examiner noted that the veteran had had several visual field examiantions which showed a concentric constriction. The impression was of vascular headaches. Upon VA examination in January 1977, the examiner noted that there were several small scars on the left side of the veteran's face but no disabling residuals were indicated. Eye examination showed findings of conjunctivitis with no significant impairment of vision. The condition was considered to be mild and seasonal. In a March 1977 rating action, service connection for conjunctivitis was established and a noncompensable rating was assigned, effective from the date of the veteran's claim in April 1976. Service connection for superficial, nondisfiguring scars of the face was also established and a noncompensable rating was assigned. Subsequently dated records in the 1980s are negative for complaints of or treatment of eye problems. VA records from March 1997 to July 1997, however, reflect that the veteran was seen for complaints of blurry vision and decreased near vision. There was no finding of active conjunctivitis and no medical opinion that any decreased visual acuity was due to service-connected conjunctivitis. Upon VA eye examination in December 1997, the examiner opined that there was no evidence of conjunctivitis or sequelae of trauma to the eye. Diagnoses included functional visual field constriction, myopia, astigmatism, and presbyopia. At a personal hearing in April 1998, the veteran reported that his vision was impaired. His eyes swelled, burned, and itched. Hearing [Hrg.] Transcript [Tr.] at 2. They were particularly irritated in the morning and at night. Bright sunlight was an irritant. Tr. at 3. He also said that he injured his eyes during service when an aerosol can blow up in his face when he was aboard the U.S.S. Saratoga. Tr. at 10. Service Connection The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence that the claim is well grounded. Under the law, it is the obligation of the person applying for benefits to come forward with a well-grounded claim. 38 U.S.C.A. § 5107(a). 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)." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). Mere allegations in support of a claim that a disorder should be service-connected are not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). The U.S. Court of Appeals for Veterans Claims (Court) has held that, in general, a claim for service connection is well grounded when three elements are satisfied with competent evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). First, there must be competent medical evidence of a current disability (a medical diagnosis). Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) Second, there must be evidence of an occurrence or aggravation of a disease or injury incurred in service (lay or medical evidence). Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991); Layno v. Brown, 6 Vet. App. 465 (1994). Third, there must be a nexus between the in-service injury or disease and the current disability (medical evidence or the legal presumption that certain disabilities manifest within certain periods are related to service). Grottveit v. Brown, 5 Vet. App. 91, 93; Lathan v. Brown, 7 Vet. App. 359 (1995). The Court has further held that the second and third elements of a well-grounded claim for service connection can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (a) evidence that a condition was "noted" during service or an applicable presumption period; (b) evidence showing post- service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post-service symptomatology. See 38 C.F.R. § 3.303(b) (1999); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Ibid. Also controlling in this case are decisions of the Court concerning the types of evidence required to establish important facts. The Court has held that a lay person can provide probative eye-witness evidence of visible symptoms, however, a lay person can not provide probative evidence as to matters which require specialized medical knowledge acquired through experience, training or education. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Court has further 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, 5 Vet. App. at 93. The basic framework of the law and regulations provides that 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 (West 1991); 38 C.F.R. § 3.303 (1999). 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) (1999). Congenital or developmental defects to include refractive error of the eye are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c) (1999). Analysis The Board again notes that the complete SMRs could not be located and points out that the Board has a heightened duty to explain its findings and conclusions and to consider the benefit of the doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board notes, however, that it does not read into O'Hare, supra, the presumption that the missing medical records would, if they still existed, necessarily support the veteran's claim. Additionally, the Board is satisfied that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which should be obtained. Therefore, no further development is required in order to comply with the duty to assist. The veteran has provided competent evidence that he was treated for superficial facial scars and an eye infection during service. Service connection is in effect for conjunctivitis and for these scars. The available SMRs, however, are negative for any additional eye disability that was the result of an aerosol can explosion or other incident. While post service records reflect visual impairment and eye complaints, an examiner has never linked eye problems (other than conjunctivitis) to the veteran's service or to the symptoms he has experienced since his release from service. Significantly, the examiner in December 1997 noted that there was no sequelae of trauma in the eyes. Thus, while current eye disability (other than conjunctivitis) is noted, it has not been linked to service. Accordingly, as no competent evidence has been presented to establish the presence of chronic residuals of an eye injury, the veteran's claim of entitlement to service connection for residuals of an eye injury is denied. The Board has considered the assertions that the veteran has a disability of service origin. While he is competent to report manifestations of a disorder perceptible to a lay party, such as pain, he is not competent to link those manifestations to service on medical causation or etiology. Espiritu, supra. Increased Rating A person who submits a claim for benefits under a law administered by the VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Where a disability has already been service-connected and there is a claim for an increased rating, a mere allegation that the disability has become more severe is sufficient to establish a well-grounded claim. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Accordingly, the Board finds that the veteran's claims for increased ratings are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1999). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.49 (1999); DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Chronic conjunctivitis which is active with objective symptoms is rated as 10 percent disabling. If conjunctivitis is healed it should be rated on residuals. If there are no residuals a noncompensable rating is assigned. 38 C.F.R. § 4.84a, DC 6018 (1999). Analysis The veteran was granted service connection for conjunctivitis in a March 1977 rating action. A noncompensable rating was assigned. The veteran is now seeking a compensable rating for conjunctivitis. In order to assign a compensable rating for conjunctivitis there must either be objective evidence of active conjunctivitis or healed conjunctivitis with residuals. A review of the claims folder demonstrates that the only post service medical records which reveal treatment for conjunctivitis was in 1977. More recent records reflect eye complaints, but it was specifically noted by the VA examiner in December 1997 that no active conjunctivitis was seen. Additionally, there is no medical opinion that any current eye symptoms or diagnoses are due to service-connected conjunctivitis. The Board has noted the veteran's testimony that he experiences daily eye manifestations to include itching, burning, and swelling. Although the veteran is certainly competent to relate the symptoms he experiences, there is no evidence of record which indicates that he has special training or the expertise needed to diagnose an eye disorder. A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. Espiritu, supra. In the absence of evidence of active conjunctivitis or any residuals of healed conjunctivitis, a compensable rating is not warranted. ORDER Service connection for residuals of an eye injury is denied. An increased evaluation for conjunctivitis is denied. T. H. Smith Acting Member, Board of Veterans' Appeals