Citation Nr: 0211183 Decision Date: 09/03/02 Archive Date: 09/09/02 DOCKET NO. 96-02 473 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to service connection for left eye amblyopia exanopsia. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Parakkal, Counsel INTRODUCTION The veteran served on active duty from November 1976 to July 1985. By an August 1995 RO decision, the veteran's claim of service connection for left eye amblyopia exanopsia was denied. The veteran appealed this decision to the Board of Veterans' Appeals (Board). In an October 1997 Board decision, the veteran's claim was denied, and he appealed to the United States Court of Appeals for Veterans Claims (Court). By Orders in August 1999 and April 2000, the Court vacated the Board's decision and remanded the matter for readjudication. In July 2000 and August 2001, the Board remanded the matter to the RO for further development. FINDINGS OF FACT 1. Left eye amblyopia was diagnosed and noted upon the veteran's entrance examination report dated in October 1976. 2. Amblyopia exanopsia is a developmental defect; and the veteran did not suffer a superimposed injury or disease of his left eye during service. CONCLUSION OF LAW Amblyopia exanopsia of the left eye is not a disease or injury within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. §§ 3.303(c), 4.9 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran served on active duty from November 1976 to July 1985. An October 1976 optometry examination reflects that the veteran had left refractive amblyopia and was deemed qualified for duty. Records, dated in November 1976, are to the same effect. An August 1979 examination reflects that the veteran's eyes were clinically normal. In March 1995, the RO received the veteran's application for service connection for a lazy left eye which he said began in November 1976. Private medical records dated in May 1995 reflect that the veteran was noted as having left amblyopia exanopsia. At a November 1996 RO hearing, the veteran testified that he had lost some sight in his left eye such that he was unable to read fine print. Prior to service, he said, he had not had any eye problems. He said that he first began having eye problems in November 1976. In August 2000, the veteran underwent a VA examination. The diagnoses were amblyopia exanopsia, anisometropia, hypermetropia, and blurred vision. In a December 2000 addendum to the August 2000 VA examination report, it was noted that there was no evidence of left eye disease, and no evidence of a left eye injury. Further, the examiner was asked to answer, for every left eye diagnosis, whether the condition was a congenital or developmental defect or a refractive error of the eye. In response the examiner noted: amblyopia ex anopsia - developmental; anisometropia - refractive; hypermetropia - refractive; and blurred vision - refractive. In September 2001, an examiner reviewed the August 2000 VA examination report and the December 2000 addendum, as well as the rest of the claims folder. Following such review, it was opined that the veteran had refractive amblyopia, which was a developmental defect not disease process. It was noted that the veteran had entered service with eye problems and was discharged with the very same problems, which were basically in the same state. Specifically, while the veteran was in service, in October 1976, he was noted to have refractive amblyopia, which is a condition in which one eye sees better than the other eye. It was also noted that the veteran had a small angle squint which was a developmental defect and not a disease process. Veterans Claims Assistance Act (VCAA) There has been a significant change in the law during the pendency of this appeal with the enactment of the VCAA, 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2001). Regulations implementing the VCAA are now published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326). Except as specifically noted, the new regulations are effective November 9, 2000. This law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order) (holding that VA cannot assist in the development of a claim that is not well grounded). The new law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000. See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). First, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2001). The record shows that the veteran was properly notified of the August 1995 RO decision, which denied the veteran's claim for service connection for left amblyopia exanopsia. The veteran was issued a statement of the case (in August 1995) and supplemental statements of the case (in January 1997, March 2001, and May 2002) and the Board concludes that the RO decision, statement of the case, and supplemental statements of the case and letters sent to the veteran over the years informed him of the information and evidence needed to substantiate his claim and complied with VA's notification requirements. Specifically, the May 2002 letter addressed the VCAA. Quartuccio v. Principi, No. 01-997 (U.S. Vet. App. June 19, 2002). In sum, VA has met its duty to inform the veteran. Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. Notably, the Board remanded this case multiple times in an effort to fully develop the evidence. The RO has requested all relevant records, including his VA medical records. The veteran has not referenced any unobtained evidence that might aid his claim or that might be pertinent to the bases of the denial of his claim. Further, the veteran underwent multiple VA examinations in support of his claim in 2000 and 2001; these examinations ultimately served to resolve the dispositive issue in this case. The Board finds that VA has done everything reasonably possible to assist the veteran. In the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duties to notify and to assist the veteran in this case. Further development and further expending of VA's resources is not warranted. As such, the Board will proceed with a discussion of the merits of the veteran's claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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); see also Savage v. Gober, 10 Vet. App. 488 (1997). Finally, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Congenital or developmental defects and refractive error may not be service-connected because they are not considered injuries or disease under VA law and regulations. 38 C.F.R. § 3.303(c); Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, congenital or development defects may be service- connectable where a superimposed injury or disease occurs during, or as a result of, active service. VA O.G.C. Prec. Op. No. 82-90 (July 18, 1990). Service connection may be granted for diseases of congenital, developmental, or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted an "aggravation" of the disease. VA's Office of General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (1990); VAOPGCPREC 67- 90, 55 Fed. Reg. 43253 (1990). Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (1990). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 ; 38 C.F.R. § 3.306(a). For service connection to be warranted for a congenital or developmental defect, the evidence would have to show that a superimposed injury to the eye during service aggravated the refractive error or the congenital/developmental defect. According to the VA's Adjudication Procedure Manual M21-1, paragraph 50.09, defects of form or structure of the eye of congenital or developmental origin, such as myopia (other than malignant or pernicious) will not, in themselves, be regarded as disabilities and may not be service-connected on the basis of incurrence or natural progress during service. The Manual further provides that there is long established policy permitting a grant of service connection with such unusual developments as choroidal degeneration, retinal hemorrhage or detachment, or rapid increase in myopia producing an uncorrectable impairment of vision; only under such unusual circumstances, with uncorrectable residuals, may refractive error be considered service-connected. Adjudication Procedure Manual M21-1, paragraph 50.09. Amblyopia Exanopsia A review of the record shows that the veteran was noted to have left amblyopia on entrance examination in October 1976. In November 1976, the condition was described as left refractive amblyope. Current medical evidence continues to show that he has this condition. See August 2000 VA examination report. In a December 2000 addendum to the August 2000 VA examination report, it was noted that there was no evidence showing that the veteran had a left eye disease or injury. He was also noted as having amblyopia exanopsia which was described as "developmental." In a September 2001 VA examination report, it was clarified that the veteran's amblyopia exanopsia was a developmental defect. Further, it was noted that this condition was essentially static during service. In sum, the veteran has not produced competent evidence that establishes that he has a disability that is due to a disease or injury. Again, it is noted that the eye condition the veteran had in service and has now is amblyopia exanopsia. A VA examiner has indicated that this eye condition is a developmental defect, and there is no evidence to the contrary. (He has also been noted to have a few other eye problems, all of which were either noted long after his service discharge with no etiological connection thereto or were noted as developmental defects or errors of refraction.) As noted above, there is no entitlement under the law for a developmental defect, such as amblyopia exanopsia, as it is not a disease or injury in the meaning of applicable legislation for compensation purposes. 38 C.F.R. § 3.303(c). This regulation is fully consistent with the pertinent law that establishes that service connection is warranted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Absent a superimposed disease or injury in service, service connection for a congenital or developmental defect or a refractive error may not be granted. Again, there is no evidence that the veteran sustained a superimposed eye injury which aggravated his left eye amblyopia exanopsia during service. Any reliance on VA's General Counsel opinions, the provisions of M21-1 (discussed in detail, above), or various decisions of the Court, as providing support for the veteran's claim of service connection, is misplaced as none provide a legal basis for service connection for a congenital defect absent a superimposed injury or disease which is not the case here. Rather, the opinions of the General Counsel are remarkably consistent with the law, service connection may be granted for a disability that is due to a disease or injury no matter how that disease or injury is classified. Critical in the law, regulations and opinions of the General Counsel is the presence of a disease or injury. This is fully consistent with the holding of the Federal Circuit in Sanchez-Benitez (there must be an inservice disease or injury). Sanchez- Benitez v. Principi, 259 F.3d 1356, 1361-1362 (2001). To the extent that the provisions of M21-1 seems to provide a legal basis for service connection for a condition not resulting from a disease or injury incurred in or aggravated by service, such is inconsistent with law. Regardless, the conditions identified in the M21-1, choroidal degeneration, retinal hemorrhage and detachment and rapid increase in myopia are not present in this case. The veteran's statements, in support of his claim, which are to the effect that he has a left eye disability which is attributable to service, are not cognizable evidence since, as a layman, he has no competence to give a medical opinion on the diagnosis or etiology of the disorder. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In reaching its decision, the Board has considered the matter of resolution of the benefit of the doubt in the veteran's favor; however, as indicated above, application of the rule is only appropriate when the evidence is evenly balanced or in relative equipoise. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49, 53-56 (1991). Such is not the case in this instance as the weight of the evidence is against the claim of service connection for left eye amblyopia exanopsia. ORDER Service connection for left eye amblyopia exanopsia is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.