CORNEAL DISEASE INCLUDING SCARS OPACITIES

Summary

The veteran, who served from September 1989 to August 1993, appeals the severance of service connection for a right eye condition, status post chemical corneal abrasion. The veteran also appeals the effective date of the severance. The Board found that the initial grant of service connection for the right eye condition was based on clear and unmistakable error (CUE). The original grant in September 2016 was predicated on an erroneous factual finding that the veteran had a current diagnosis of a right eye status post chemical corneal abrasion. Subsequent examinations in January and March 2020 clarified that the veteran did not have a current diagnosis of corneal abrasion, and any cataract formation was likely due to chronic exposure, not the single abrasion incident. The Board found this error undebatable and manifestly changed the outcome, thus upholding the severance. However, the Board found the effective date of the severance, September 1, 2020, to be improper. The Board corrected the effective date to October 1, 2020, granting the appeal to that extent. The appeal regarding the propriety of the severance itself was denied.

Rationale

Original grant based on erroneous factual finding of current diagnosis; Examinations indicated no current corneal abrasion residuals; Cataract diagnosis is a separate condition, not the claimed abrasion

Full Decision Text

Citation Nr: A26033256
Decision Date: 04/09/26	Archive Date: 04/09/26

DOCKET NO. 200820-105208
DATE: April 9, 2026

ORDER

The severance of service connection for right eye, status post chemical corneal abrasion, was proper; the appeal is denied.

The date of the severance of service connection for right eye status post chemical corneal abrasion should be October 1, 2020; to this extent, the appeal is granted.

FINDING OF FACT

1. The Veteran does not have a current diagnosis of right eye status post chemical corneal abrasion.

2. The effective date of the severance was not greater than the last day of the month in which a 60-day period from the date the August 2020 notice expired.

CONCLUSION OF LAW

1. The severance of service connection for service connection for right eye status post chemical corneal abrasion was proper. 38?U.S.C. §?5112; 38?C.F.R. §?3.105.

2. The date of the severance of service connection for service connection for right eye status post chemical corneal abrasion was improper. 38?U.S.C. §?5112; 38?C.F.R. §?3.105.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from September 1989 to August 1993.

This matter is on appeal from a June 2020 rating decision by a Department of Veterans Affairs (VA) regional office (RO).

In the August 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A May 2024 notification advised the Veteran that a hearing was scheduled for July 2024. The Veteran did not appear for the scheduled Board hearing. Later in May 2024, the notice was returned as undeliverable. However, since that time, the Veteran has not informed VA of his new address and there has been no further communication from the Veteran that would give VA an opportunity to determine his new address. Thus, the Board finds sending him further notifications about a hearing would be futile. The Board cannot continue to delay this case indefinitely and therefore, will adjudicate the claim based on the evidence of record.

Therefore, the Board may only consider the evidence of record at the time of the June 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative within 90 days following the date of the scheduled hearing. 38?C.F.R. §?20.302(c). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date of the scheduled Board hearing, or (2) more than 90 days following the date of the scheduled hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(c), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

The Veteran contends the severance of service connection for his right eye disability was erroneous.   

The RO granted entitlement to service connection for a right eye disability in an September 2016 rating decision.

In a March 2020 rating decision, the RO proposed to sever service connection for a right eye disability, saying that while the Veteran had an eye disability noted in service, the previous examination stated the eye condition had resolved and the Veteran did not have a currently diagnosed right eye disability. 

In an August 2020 rating decision, the RO severed service connection for a right eye disability, effective September 1, 2020, with notice sent to the Veteran in the same month.

Previously granted benefits will be severed only where evidence establishes that the award of service connection was clear and unmistakable error (CUE) (the burden of proof being on the Government). 38?C.F.R. §?3.105(d). 

When severance is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 
 currently diagnosed right eye disability. 

In an August 2020 rating decision, the RO severed service connection for a right eye disability, effective September 1, 2020, with notice sent to the Veteran in the same month.

Previously granted benefits will be severed only where evidence establishes that the award of service connection was clear and unmistakable error (CUE) (the burden of proof being on the Government). 38?C.F.R. §?3.105(d). 

When severance is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38?C.F.R. §?3.105(d). 

A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. 38?C.F.R. §?3.105(d). 

To establish that a grant of benefits was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21?Vet. App.?54, 58-59 (2007); Stallworth v. Nicholson, 20?Vet. App.?482, 487-88 (2006); cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6?Vet. App.?242, 245 (1994); Russell v. Principi, 3?Vet. App.?310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38?C.F.R. §?20.1403(a). 

In most respects, the CUE standard under § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38?C.F.R. §?3.105(a). See Baughman v. Derwinski, 1?Vet. App.?563, 566 (1991). Section 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. See id. 

However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth, 20 Vet. App. at 488. The Secretary's burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 5109A or 7111. Id. 

A decision that is reversed or amended based on CUE is revised to conform to the true state of the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62 (internal quotations omitted). 

The initial question for the Board is whether the RO followed the due process requirements of 38?C.F.R. §?3.105(d) for severing service connection.   The Board finds that it did.

The RO issued the proposed severance in a March 2020 rating decision.  The Veteran was sent a notification in the same month at his latest address of record of this contemplated action and furnished detailed reasons therefore and was given 60 days for the presentation of additional evidence to show that benefits should be maintained.
 CUE is revised to conform to the true state of the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62 (internal quotations omitted). 

The initial question for the Board is whether the RO followed the due process requirements of 38?C.F.R. §?3.105(d) for severing service connection.   The Board finds that it did.

The RO issued the proposed severance in a March 2020 rating decision.  The Veteran was sent a notification in the same month at his latest address of record of this contemplated action and furnished detailed reasons therefore and was given 60 days for the presentation of additional evidence to show that benefits should be maintained.  The notice letter also informed the Veteran that he had the opportunity for a predetermination hearing if such a request for a hearing was received by VA within 30 days from the date of the notice. See 38?C.F.R. §?3.105(i).   The Veteran did not request such a hearing.  

The RO issued the August 2020 rating decision, which severed service connection for a right eye disability, effective September 1, 2020.  Notification of this rating decision, plus his appeal rights, was sent to the Veteran in the same month.  The Board finds that this effective date was not proper as it was not greater than the last day of the month in which a 60-day period from the date the August 2020 notice expired. See 38?C.F.R. §?3.105(d).  However, the Board finds this to be harmless error that does not impact the propriety of the severance because the Board is able to correct the effective date of the severance. October 1, 2020 would be the earliest possible severance effective date. 

The remaining question before the Board is whether the grant of service connection for a right eye disability was CUE.  

For the following reasons, the Board finds there was CUE in the grant of service connection for a right eye disability.

Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

A September 2016 examiner indicated the Veteran had a chemical corneal abrasion in his right eye with the date of diagnosis from September 14, 1990 to September 19, 1990. 

The examiner opined it was less likely than not the Veteran's right eye disability was incurred in or due to his time in service, saying there was no current eye condition with either eye and the injury to his right eye in 1990 healed without sequalae.

A January 2020 examiner indicated the Veteran had been diagnosed with chemical induced cataract formation with the date of diagnosis in 2016. 

A clarifying opinion was obtained in March 2020. The examiner clarified corneal abrasion and chemically induced cataracts were two separate conditions. In 2019, the Veteran's cornea was normal bilaterally, which suggests the previous reported corneal abrasion was superficial and left no residuals. For a chemical to induce cataract formation, the chemical would require chronic exposure rather than one chemical corneal abrasion which is a temporary condition.

In a later March 2020 clarifying addendum opinion, the examiner clarified that, after reviewing the Veteran's file, there was no currently diagnosed corneal abrasion. Regarding the Veteran's cataracts, in order for it to be caused by chemical exposure, it would highly likely require prolonged exposure.

The Board has reviewed the remainder of the Veteran's file, to include his lay statements and his treatment records. While those records show an eye condition while in service, none of the records indicate he had, for any time during the pendency of his claim or appeal, a diagnosed right eye status post chemical corneal abrasion as clearly discussed in the examinations and opinions above.  While the Veteran has been diagnosed with a cataract, this is a different condition which the Veteran is free to file a claim for, if he wishes.

Here, the Board finds CUE with the original grant of service connection based on the fact that the Veteran had a current diagnosis of his claimed condition, which the evidence clearly indicates he does not.  In this case, the adjudicator made an erroneous factual finding
, to include his lay statements and his treatment records. While those records show an eye condition while in service, none of the records indicate he had, for any time during the pendency of his claim or appeal, a diagnosed right eye status post chemical corneal abrasion as clearly discussed in the examinations and opinions above.  While the Veteran has been diagnosed with a cataract, this is a different condition which the Veteran is free to file a claim for, if he wishes.

Here, the Board finds CUE with the original grant of service connection based on the fact that the Veteran had a current diagnosis of his claimed condition, which the evidence clearly indicates he does not.  In this case, the adjudicator made an erroneous factual finding by stating the Veteran had a currently diagnosed right eye post chemical corneal abrasion disability.  This error is undebatable. There are several examiners indicating the Veteran does not have such a diagnosis and nowhere in his file is there documentation of such a diagnosed disability.  This error manifestly changed the outcome of the decision because had the adjudicator not erroneously found the Veteran had a current diagnosis of his claimed condition, service connection would not have been granted as it is one of the fundamental elements for findings service connection that a veteran have a diagnosis of his claimed condition.  Therefore, the severance was proper and the appeal is denied.  

To the extent that the effective date of the severance was noted to be September 1, 2020, the Board will grant the appeal in that this effective date was incorrect. The earliest effective date for the severance would be October 1, 2020. To this extent, the appeal is granted.

 

 

John J. Crowley

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Snoparsky, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.