Citation Nr: 0711315 Decision Date: 04/17/07 Archive Date: 05/01/07 DOCKET NO. 04-12 771 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for glaucoma, suspect, bilateral. 2. Entitlement to service connection for tinea corporis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The veteran served on active duty from July 1982 to February 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The appeal is REMANDED, in part, to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT The veteran does not currently have glaucoma. CONCLUSION OF LAW Glaucoma was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., evidence of veteran status; existence of a current disability; evidence of a nexus between service and the disability; the degree of disability, and the effective date of any disability benefits. The veteran must also be notified to submit all evidence in his possession, what specific evidence he is to provide, and what evidence VA will attempt to obtain. VA thirdly has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record, and in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In this case, there is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in April 2003 correspondence, amongst other documents considered by the Board, generally fulfills the provisions of 38 U.S.C.A. § 5103(a), save for a failure to provide notice addressing the type of evidence necessary to establish a disability rating and an effective date for the disability on appeal. The claim was readjudicated in a February 2004 statement of the case. The failure to provide notice of the type of evidence necessary to establish a disability rating and an effective date for the disability on appeal is harmless because the Board has determined that the preponderance of the evidence is against the claim. Hence, any questions regarding what ratings or effective dates would be assigned are moot. The Board acknowledges that under 38 U.S.C.A. § 5103(a), notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, any error was cured by providing notice and readjudicating the claim. The veteran has been afforded a meaningful opportunity to participate in the adjudication of his claim, to include the opportunity to present pertinent evidence. Thus any error in the timing was harmless, the appellant was not prejudiced, and the Board may proceed to decide this appeal. Simply put, there is no evidence that any VA error in notifying the appellant that reasonably affects the fairness of this adjudication. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). VA has secured all available pertinent evidence and conducted all appropriate development. The veteran reported treatment by a Dr. Charles Beischel at the Roper Wesley Aschley Medical Center. VA attempted to obtain these records but was informed by the Medical Center that they had no record of the veteran being treated by Dr. Beischel. The Board notes that a review of the record reveals that this is the VA physician who performed the 2003 VA eye examination. As such, there is no pertinent evidence which is not currently part of the claims file. Hence, VA has fulfilled its duty to assist the appellant. Criteria In order to establish service connection for a disability, there must be objective evidence that establishes that such disability either began in or was aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Such a determination requires a finding of a current disability that is related to an injury or disease incurred in service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Court has held that the second and third elements can be satisfied, under 38 C.F.R. § 3.303(b), by the submission of (a) evidence that a condition was "noted" during service or during 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 the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). A lay person is competent to testify only as to observable symptoms. A lay person is not competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The provisions of 38 C.F.R. § 3.303 do not relieve a claimant of the burden of providing a medical nexus. Rather, a claimant diagnosed with a chronic condition must still provide a medical nexus between the current condition and the putative continuous symptomatology. Until the claimant presents competent medical evidence showing a relationship between a current disability and either an in-service injury or continuous symptomatology, the claimant cannot succeed on the merits of the claim. Voerth v. West, 13 Vet. App. 117 (1999). In Voerth the Court held that where a claimant's personal belief, no matter how sincere, was unsupported by medical evidence, the personal belief cannot form the basis of a claim. Id. The Court has further determined that chronicity is not demonstrated when the sole evidentiary basis for the asserted continuous symptomatology was the sworn testimony of the appellant himself, and when "no" medical evidence indicated continuous symptomatology. Glaucoma Service medical records reveal treatment on numerous occasions for eye complaints. Examiners determined that the veteran had cupping of the optic nerve but glaucoma was not diagnosed. The veteran's eyes were essentially normal throughout service. At a May 2003 VA examination, the veteran reported poor peripheral vision. He was not sure what the nature of his problem was. An ophthalmologist noted the veteran reported that his vision was pretty good without glasses. He only needed reading glasses. He reported slightly elevated cup to disk ratio and normal visual fields in the past and was told that he might have glaucoma. However, he was never treated for glaucoma. The examination revealed essentially normal findings. The diagnosis was glaucoma, suspect, both eyes. The examiner noted that the veteran did not have glaucoma. This diagnosis was due to the veteran's slightly increased cup to disk ratio and positive family history for glaucoma. As such he remained a visual glaucoma suspect for life. He would remain at a small lifetime risk for developing glaucoma. A July 2003 addendum noted that the veteran underwent a Goldmann visual field test which was normal revealing no evidence of glaucoma. In the present case, there is no medical opinion or any competent evidence of a current diagnosis of glaucoma. As shown above, the VA examination does not identify competent evidence that the appellant currently suffers from glaucoma. Despite the veteran's contention to the contrary the competent evidence neither supports a finding of glaucoma in service, nor reveals a present diagnosis of glaucoma as a result of disease or injury incurred in service. The veteran's lay opinion to the effect that he currently has glaucoma attributable to service is not competent evidence of such a nexus since lay persons are not qualified to render a medical diagnosis or an opinion concerning medical causation. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In the absence of competent medical evidence that the veteran currently has glaucoma which began during his military service or was caused by some event of such service, service connection is not warranted. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for suspected bilateral glaucoma is denied. REMAND The veteran claims entitlement to service connection for tinea corporis. In this regard service medical records dated in February 1985 reveal complaints of an itching rash around the sock line. The assessment was an erythematous maculopapular rash on the ankles. This was a possible allergic reaction to his socks. A July 1985 note records a complaint of itching and constant scratching of the legs. The diagnosis was lichen simplex chronicus. A similar finding was made in March 1989. In February 1997 a history of a pruritic rash of both legs was noted which was not responsive to topical steroids. While the veteran's May 2003 VA examination failed to reveal any evidence of a rash, the above inservice symptoms, when coupled with April 2002, October 2003 and December 2003 Charleston Air Force Base Medical Center examination findings of tinea corporis strongly suggest that the appellant's May 2003 VA examination was simply conducted during a period of quiescent disease. As such, the Board finds that the provisions of 38 U.S.C.A. § 5103 justify a new VA examination. Therefore, this case is REMANDED for the following action: 1. The RO should obtain all treatment records pertaining to care for tinea corporis dating since 2003 from any known provider, to particularly include any medical facility located at Charleston Air Force Base, South Carolina. 2. Thereafter, the RO should schedule the veteran for a VA dermatology examination to be conducted by a board certified dermatologist. The claims folders must be made available and reviewed by the examiner. Thereafter, the examining dermatologist must opine whether the veteran has tinea corporis, and if so, whether it is at least as likely as not that the disorder is related to service. If the examiner finds that the veteran does not currently have tinea corporis the examiner must opine whether the disorder is currently quiescent in light of the above reported medical history. A complete written rationale must be provided for any opinion offered. 3. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 4. After the development requested has been completed, the RO should review the claims file to ensure that the development is in compliance with the directives of this remand. 5. Thereafter, if the issue on appeal remains denied, a supplemental statement of the case should be provided to the veteran and his representative. After the veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs