Citation Nr: 0810626 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 05-19 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for diabetes mellitus, to include as a result of exposure to herbicide. 2. Entitlement to service connection for loss of vision, left eye. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Andrew Mack, Associate Counsel INTRODUCTION The veteran served on active duty from August 1962 to August 1966, and from March 1967 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2004 and December 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan that denied the veteran's previously denied claim of entitlement to service connection for loss of left eye vision, and declined to reopen a previously denied claim of entitlement to service connection for diabetes mellitus, on the basis that new and material evidence had not been submitted. The veteran perfected a timely appeal of these determinations to the Board. In June 2006, the veteran appeared and offered testimony in support of his claim before the undersigned Veterans Law Judge. The veteran's testimony on that occasion has been transcribed and associated with his claims file. In March 2007, the Board reopened the veteran's service connection claim and remanded it for further development. With respect to the issue of new and material evidence has been received to reopen a claim for entitlement to service connection for diabetes mellitus, the Board observes that this issue is premised on the theory that the veteran was exposed to Agent Orange during his Vietnam-era service. In this regard, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Haas v. Nicholson, 20 Vet. App. 257 (2006), that reversed a decision of the Board that denied service connection for disabilities claimed as a result of exposure to herbicides. VA disagreed with the Court's decision in Haas and is seeking to have this decision appealed to the United States Court of Appeals for the Federal Circuit. In Ribaudo v. Nicholson, No. 06-2762 (U.S. Vet. App. January 26, 2007 order), the Court ordered that the adjudication of claims potentially affected by Haas be stayed, pending a decision by the United States Court of Appeals for the Federal Circuit on Haas and further order of the Court. As the veteran's diabetes mellitus claim is potentially affected by the outcome of Haas, the issue is hereby deferred. FINDINGS OF FACT 1. The veteran's left eye vision loss is due to amblyopia. 2. There is clear and unmistakable evidence that amblyopia pre-existed the veteran's service and was not permanently aggravated during service. CONCLUSION OF LAW Loss of vision, left eye, was not incurred or aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1132, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and implemented at 38 C.F.R. § 3.159 (2007), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, March 2004 and March 2007 letters to the veteran from the Agency of Original Jurisdiction (AOJ) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection, and the division of responsibility between the veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007), these letters essentially satisfied the notification requirements of the VCAA by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting that the veteran provide any information or evidence in his possession that pertained to the claim. Also, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements apply to all five elements of a service connection claim, including the disability rating and effective date of the award. The veteran was provided this notice in March 2007, he was afforded an opportunity to respond, and the AOJ then subsequently reviewed the claim and issued a supplemental statement of the case to the veteran in November 2007. As such, any notice deficiencies related to the rating or effective date were remedied. Thus, the Board finds no prejudice to the veteran in processing the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). Second, VA has a duty under the VCAA to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002). In this regard, the following are associated with the claims file: the veteran's service medical records, post-service private medical treatment records, VA medical treatment records, letters written from the veteran's private physician in support of his claim, several VA examinations and opinions, the veteran's testimonies at his September 2005 RO hearing and June 2006 Board hearing, and written statements from the veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the veteran. The Board therefore determines that VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. II. Service Connection The veteran asserts that he is entitled to service connection for loss of left eye vision. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A veteran who served after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. The presumption is rebutted by clear and unmistakable evidence demonstrating that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1132. If a pre-existing disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air 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). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). In the instant case, the veteran's service medical records indicate that, at the time of his induction into service in July 1962, the vision in his left eye was 20/200, both corrected and uncorrected. His entrance examination notes 20 diopters esotropia eccentric fix, left eye, with suppression amblyopia, and pupil left eye greater than right eye. It also notes that he had a 10 prism diopter esotropia in the left eye, and that the impression was strabisumus and amblyopia in the left eye. On March 1967 entrance examination, the veteran was again noted to have had left vision of 20/200. In May 1967, the veteran was stuck in the face during a confrontation with a police officer, which resulted in a fractured left maxilla. A June 1967 record notes that physical examination was essentially within normal limits except for mild subconjunctival hemorrhage of the left eye and healing abrasions over the left zygoma and maxilla, with mild edema over that side also. It was also noted that eye consultation was obtained, that, except for the subconjunctival hemorrhage of the left eye and fracture of the maxilla, no other lesions were evidenced, and that the veteran presently had the benefits of hospitalization and was returned to duty, fit for same. In November 1967, it was noted that the veteran was hit the left eye, that the eye was swollen shut, and that he was unable to see from it. It was noted that the veteran had diplopia, pupil, on left, and that he could see only shadows. Esotropia was also noted. The veteran was also noted in November 1967 to have had eyelid abrasions and subconjunctival hemorrhage. The veteran was diagnosed as having congenital megaloglobus of the left eye, retinal, normal for condition, amblyopia, not related to trauma. December 1967 service medical records note a problem of a rash around the left eye, and that the veteran was diagnosed as having pustular eczema. In April 1969, it was noted that the veteran reported to sick bay with blister around upper lip and that, on examination, the left eye was red and irritated. It was also noted that the veteran had had mace sprayed in his face 48 hours before. Service medical records furthermore reflect that, at the time of the veteran's separation from service in August 1969, his eyesight was noted to be 20/300. Private medical treatment records dated in March 1997 indicate that the veteran was referred from a glaucoma consultation. The veteran reported a history of trauma- induced glaucoma, that his amblyopia was noted in 1962, and that he was kicked in the left eye in 1967, causing an orbital fracture. The veteran was noted to have had severely restricted vision in his left eye. The examiner noted that the veteran was trying to get VA to pick up his eye care because he believed that his left eye was about gone due to being kicked when he was in the service. A June 2003 letter from a private physician, Dr. S., indicates that the veteran was referred for a complete glaucoma evaluation, that his left eye visional acuity was 20/400 with correction, and that Dr. S.'s impression was glaucoma, with suspected borderline findings and early nuclear sclerotic cataracts, both eyes. A July 2003 letter from a private physician, Dr. C., indicates that, in a May 2003 comprehensive eye evaluation, the veteran presented with a complaint that his left eye was about gone, and his left eye visual acuity was less than 20/400. Dr. C. gave the following diagnoses: hyperopia, astigmatism, presbyopia, bilaterally; amblyopia of the left eye; glaucoma, suspect based on cup to disc ratio and decreased confrontation of the left eye; mild cataract, both eyes; and no background diabetic neuropathy, both eyes. A March 2004 letter from Dr. O., the veteran's private physician, indicates the following: the veteran had amblyopia of the left eye with acuity less than 20/400; the veteran stated that, prior to entering the service in 1962, he had more vision, and that this was apparently documented on entrance examination; that, in 1967, while on active duty, the veteran sustained an injury to his left zygomatic arch requiring surgical reconstruction; that the veteran stated that since that time he had had deteriorating vision in his left eye; that he also had proptosis of the left eye, which presumably occurred after the fracture of his zygomatic arch; and that if his entrance examination revealed a significantly better visual acuity, then the most logical etiology of his vision loss would be the injury he sustained in 1967. The veteran was afforded a VA examination in May 2004. On examination, the veteran reported that he had a history of poor vision in the left eye since childhood, that this was made worse with blunt trauma sustained in service, and that he sustained a fracture of the zygomatic arch of the left side, but did not have any surgery done. It was the VA examiner's impression that the veteran had evidence of decreased vision in his left eye, that, by history, he stated that his vision was made worse by the in-service accident, and that his examination on that day and his history revealed that he was amblyopic in the left eye prior to the injury. The veteran submitted another letter from Dr. O., dated in July 2005, in which Dr. O. opined that the veteran's vision loss in the left eye was at least as likely as not aggravated by his injury to his left zygomatic arch. Dr. O. again indicated that the veteran sustained a left zygomatic arch injury in service, and that his vision had deteriorated since. A February 2006 VA ophthalmology opinion, which was given after a review of the claims folder by a VA ophthalmologist, noted the following: that the veteran had amblyopia and poor vision in the left eye prior to service; that the veteran was legally blind in the left eye at entrance into service, and thus essentially had monocular vision at that time; that, aside from a subconjunctival hemorrhage, it appeared that the ophthalmology examination at the time of the veteran's injury in May 1967 showed no other injury to the left eye; and that the examiner was unable to understand how Dr. O. came to the conclusion that the veteran's left eye vision loss was at least as likely as not aggravated by his injury to his left zygomatic arch. The same VA ophthalmologist who provided the February 2006 VA opinion provided a further opinion in May 2007, after a full review of the claims folder and an examination of the veteran. The VA examiner noted that the veteran was a glaucoma suspect, with increased cupping in the left eye, and that he had megaloglobus in his left eye, long-standing amblyopia, and nuclear sclerotic cataracts in both eyes that were pre-surgical. The examiner also noted that the veteran had sustained trauma to the left eye while in the service in the 1960s, with an orbital fracture on the left side at that point in time that did not undergo repair, and that the veteran reported losing more vision in that eye after the trauma. The examiner furthermore noted the following: that the veteran had no apparent optic atrophy and no apparent retinal disease related to trauma of long ago; that it was the examiner's impression that the loss of vision in the left eye was directly related to his amblyopia; that there appeared to be a fluctuation of visual acuities recorded in the past with the left eye, but that the examiner could find neither optic nerve damage from trauma nor retina damage or trauma to corroborate decreased vision in the left eye over time; that there can be fluctuations in visual acuity recorded in such a severely amblyopic eye when one could not find an obvious cause, for example, no evidence of damage to the optic nerve or to the retina; that it was only documented at the time of the veteran's eye trauma that the veteran had had a subconjunctival hemorrhage; that it was the examiners opinion, based on a review of the entire claims folder, that any currently diagnosed left eye disorder of the veteran was likely not caused or aggravated by the veteran's May 1967 in- service injury to his left zygomatic arch or aggravated by the veteran's period of service in any way. The VA examiner noted that the opinions of Dr. O. had been read and considered, but that Dr. O. was a family practitioner, and not an eye physician, and that Dr. O. did not list any substantiating reason for decreased vision. The VA examiner stated the opinion that, as an eye medical doctor, the nature and etiology of the current left eye disorder, including vision loss, was all related to the amblyopia, that the examiner could not correlate a cause from trauma longstanding in the past and could not see any optic nerve paleness, atrophy, or damage from trauma, and did not see or not could find any retinal disease from trauma documented after his accident.. The examiner also stated that, with respect to the question of functional vision loss in the left eye versus a true organic loss from trauma, no organic loss could be seen on examination and that this was almost always easily substantiated where there was organic loss from trauma, as one would see paleness of the optic nerve, true rupture to the eye, dislocation of the cataractous lens, damage to the retina, etc, but that none of this was seen, so that, since the examination after the trauma noted only a subconjunctival hemorrhage and no actual significant damage to the eye at that point in time, there was, in all likelihood no association between the veteran's poor vision, which was due to his amblyopia, and the veteran's accident with trauma to the left face back in the service in the 1960s. The record shows that the veteran incurred a fractured left maxilla with subconjunctival hemorrhage of the left eye in service, and that he now has significant left eye vision loss. However, the record also contains clear and unmistakable evidence which demonstrates that the veteran's eye condition pre-existed service and was not permanently aggravated during service. Initially, the Board notes that, at the time of his induction into service in July 1962, the veteran's vision in his left eye was 20/200, both corrected and uncorrected, there was a 20 diopters esotropia eccentric fix, left eye, with suppression amblyopia, and pupil left eye greater than right eye, and he had a 10 prism diopter esotropia in the left eye and was diagnosed as having strabisumus and amblyopia in the left eye. As these significant left eye conditions, along with significant vision loss, were noted on entrance examination, the presumption of soundness is not applicable with respect to a left eye vision loss condition for the veteran's period of service from July 1962 to August 1966. The Board also notes that, with respect to left eye vision loss, the presumption of soundness does not apply to the veteran's period of service from March 1967 to August 1969, as the veteran was noted to have had visual acuity of only 20/200 on March 1967 entrance examination. Moreover, to the extent that strabisumus and amblyopia of the left eye were not indicated on the March 1967 entrance examination, and that, therefore, the presumption of soundness applies to this period of service for these conditions, the Board finds the July 1962 entrance examination documenting these conditions to be clear and unmistakable evidence that such conditions existed prior to the veteran's period of service beginning March 1967. The Board also notes that the veteran's left eye visual acuity was noted to be 20/200 on entrance examinations in July 1962 and March 1967, and that it was noted to be 20/300 on separation examination in August 1969, which reflects an apparent worsening of the veteran's visual acuity. However, particularly in light of the February 2006 and May 2007 VA examiner's opinions, the Board finds clear and unmistakable evidence demonstrates that the veteran's eye condition was not permanently aggravated during service and that, to the extent that the veteran's vision loss got worse during service, any such increase in disability was due to the natural progress of the pre-existing eye disorder. First, the Board finds persuasive the VA examiner's opinion that that the loss of vision in the veteran's left eye was and is due to his amblyopia. In this regard, the Board notes that no medical evidence of record, including the opinions submitted by Dr. O., dispute that the veteran's left eye vision loss noted on his entrance examination in July 1962 was due to his amblyopia, or that his current left eye vision loss is primarily due to amblyopia. Second, based on the May 2007 VA examiner's opinion, the Board finds clear and unmistakable evidence that the veteran's vision loss condition was not aggravated by in- service trauma or by the veteran' period of service in any other way. The Board specifically notes the opinion of the VA examiner that no organic loss could be seen on examination, and that this was almost always easily substantiated where there was organic loss from trauma, as one would see paleness of the optic nerve, true rupture to the eye, dislocation of the cataractous lens, damage to the retina, or some other organic condition, but that none of this was seen. The Board also notes the VA examiner's supporting statement that the examination after the in- service trauma noted only a subconjunctival hemorrhage and no actual significant damage to the eye at that point in time. The Board notes the March 2004 and July 2005 opinions of Dr. O. that the veteran's vision loss in the left eye was at least as likely as not aggravated by his injury to his left zygomatic arch, on the basis that, if his entrance examination revealed a significantly better visual acuity, the most logical etiology of his vision loss would be the injury he sustained in 1967. However, the Board notes the VA examiner's opinion that that there appeared to be a fluctuation of visual acuities recorded in the past with the left eye, but that there could be fluctuations in visual acuity recorded in such a severely amblyopic eye, and that the examiner could find neither optic nerve damage from trauma nor retina damage or trauma to corroborate decreased vision in the left eye over time, which one would expect to find if there had been damage to the eye due to trauma, and that it was only documented at the time of the veteran's eye trauma that the veteran had had a subconjunctival hemorrhage. In this case, the Board finds VA examiner's opinions to be significantly more probative than Dr. O.'s opinions. The explanations and supporting reasons articulated by the VA examiner to support the examiner's medical conclusions are more thorough and persuasive than those given by Dr. O. to support Dr. O.'s conclusions. Essentially, Dr. O.'s explanation of why it was at least as likely as not that the veteran's left eye vision condition was aggravated by his in- service injury was that his visual acuity was worse at separation than on entry to service, and that he sustained a left eye injury in service. The VA examiner, conversely, gave a thorough explanation of both why the medical evidence suggested that there was no aggravation of the veteran's left eye condition based on trauma, as the medical indications of eye damage due to trauma were not noted either in service or on current examination, and how, given the nature of his severe vision loss due to amblyopia, the veteran's vision condition could appear to have worsened on his separation examination, when, in fact, there had been no aggravation of the condition. In this regard, the Board notes that neither the opinions of Dr. O., nor any other medical opinion of record, point to any evidence that the veteran's vision loss is partly due to trauma, other than the fact that the veteran's visual acuity was noted to be lower at separation examination than at entrance examination, and the fact that there was in-service injury to the left eye. The Board also notes, as the VA examiner noted on the May 2007 VA examination report, that the VA examiner was an eye doctor, where as Dr. O. was not, and that the VA examiner both examined the veteran and fully reviewed the claims folder, whereas there is no indication that Dr. O. reviewed the claims folder. Thus, in light of the VA examining ophthalmologist's opinions, which provide thorough explanations of the opinion that the veteran's vision loss is etiologically unrelated to trauma in any way, as well as why the veteran's eye condition at separation appeared to have increased in disability, even though there had been no aggravation of the veteran's underlying vision loss condition in service, and in light of the relatively lower probative weight of Dr. O.'s opinions, the Board finds clear and unmistakable exists that the veteran's pre-service vision loss disability was not permanently aggravated in service. Accordingly, service connection for left eye vision loss is not warranted. ORDER Entitlement to service connection for loss of vision, left eye, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs