Citation Nr: 1107486	
Decision Date: 02/24/11    Archive Date: 03/09/11

DOCKET NO.  06-10 659	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, 
Mississippi


THE ISSUE

Entitlement to service connection for a bilateral eye disorder, 
including refractive errors and claimed as blindness.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Purdum, Associate Counsel

INTRODUCTION

The Veteran served on active duty from January 1963 to January 
1965.

This matter comes before the Board of Veterans' Appeals (Board) 
from rating decisions of a Department of Veterans Affairs (VA) 
Regional Office (RO) dated in May 2005, August 2005, and October 
2005.  Those rating decisions denied the Veteran's claim to 
reopen his previously denied claim entitlement to service 
connection for loss of visual acuity and refractive error of 
vision, 20/80, claimed as blindness.

In June 2007, the Veteran testified before the undersigned 
Veterans Law Judge, seated at the RO in Jackson, Mississippi.  A 
transcript of the hearing has been associated with the claims 
file. 

In March 2008, the Board reopened the Veteran's claim on the 
basis that new and material evidence had been received.  The 
Board, however, remanded the issue for additional development.  
The file has now been returned to the Board for further 
consideration.


FINDING OF FACT

The Veteran's bilateral eye disorder, including refractive errors 
and claimed as blindness, is not related to any disease, injury, 
or incident of service, including exposure to toxic fumes, and 
was not aggravated by any superimposed disease or injury.


CONCLUSION OF LAW

A bilateral eye disorder, including refractive errors and claimed 
as blindness, was not incurred in or aggravated by service.  38 
U.S.C.A. §§ 1101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 
3.159, 3.303, 3.306 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist the Appellant

The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 
5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010), 
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010), requires 
VA to assist a claimant at the time that he or she files a claim 
for benefits.  As part of this assistance, VA is required to 
notify claimants of what they must do to substantiate their 
claims.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

The notice required by the VCAA can be divided into three 
elements.  Specifically, VA must inform the claimant of any 
information and evidence not of record:  (1) that is necessary to 
substantiate the claim; (2) that the claimant is to provide; and 
(3) that VA will attempt to obtain.  Beverly v. Nicholson, 19 
Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).  

In addition, the notice requirements of the VCAA apply to all 
five elements of a service-connection claim, including:  (1) 
veteran status; (2) existence of a disability; (3) a connection 
between the veteran's service and the disability; (4) degree of 
disability; and (5) effective date of the disability.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, 
this notice must include notice that a disability rating and an 
effective date for the award of benefits will be assigned if 
service connection is awarded.  Id. at 486.  

In a July 2006 letter, the Veteran was notified of the evidence 
not of record that was necessary to substantiate the claim.  He 
was told that he needed to provide the names of persons, 
agencies, or companies who had additional records to help decide 
his claim.  He was informed that VA would attempt to review his 
claim and determine what additional information was needed to 
process his claim, schedule a VA examination if appropriate, 
obtain VA medical records, obtain service records, and obtain 
private treatment reports as indicated.  

The July 2006 letter also informed the Veteran regarding the 
appropriate disability rating or effective date to be assigned.  
Since the Board has concluded that the preponderance of the 
evidence is against the claim of entitlement to service 
connection for a bilateral foot condition, any questions as to 
the appropriate disability rating or effective date to be 
assigned are rendered moot, and no further notice is needed.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

While the July 2006 letter was sent to the Veteran after the 
initial adjudication of his claim, his claim was readjudicated by 
an August 2006 Supplemental Statement of the Case.  Therefore, 
any defect with respect to the timing of the VCAA notice has been 
cured and the Board finds that VA has fully complied with its 
duty to notify the appellant.  Mayfield v. Nicholson, 444 F. 3d 
1328, 1333-34 (Fed. Cir. 2006)

Under these circumstances, the Board finds that the notification 
requirements of the VCAA have been satisfied as to both timing 
and content.  The purpose behind the notice requirement has been 
satisfied and the Veteran has been afforded a meaningful 
opportunity to participate effectively in the processing of his 
claim.  Therefore, adequate notice was provided to the Veteran 
prior to the transfer and certification of the Veteran's case to 
the Board and complied with the requirements of 38 U.S.C. § 
5103(a) and 38 C.F.R. § 3.159(b).  

Next, the VCAA requires that VA make reasonable efforts to assist 
the claimant in obtaining evidence necessary to substantiate a 
claim.  VA's duty to assist includes:  (1) obtaining records not 
in the custody of a federal department or agency; (2) obtaining 
records in the custody of a federal department or agency; (3) 
obtaining service medical records or other records relevant to 
active duty and VA or VA-authorized medical records; and (4) 
providing medical examinations or obtaining medical opinions if 
necessary to decide the claim.  See 38 C.F.R. § 3.159(c).  

VA has a duty to obtain a medical examination if the evidence 
establishes:  (1) a current disability or persistent or recurrent 
symptoms of a disability; (2) an in-service event, injury, or 
disease; and (3) the current disability may be associated with 
the in-service event, but (4) there is insufficient evidence to 
make a decision on the claim.  See McLendon v. Nicholson, 20 Vet. 
App. 79 (2006).  

The Veteran was provided with a VA examination in September 2009 
and specific medical opinions were obtained.  Further, the Board 
sought a medical advisory opinion from the Veterans Health 
Administration (VHA) in April 2010 and such was received in 
August 2010.

In this case, the Veteran's service treatment records and all 
identified, authorized, and available post-service treatment 
records relevant to the issue on appeal have been requested or 
obtained, including those maintained by the Social Security 
Administration (SSA).  There is no allegation from the Veteran 
that he has any evidence in his possession that is needed for a 
full and fair adjudication of this claim.  Accordingly, all 
available records and medical evidence have been obtained in 
order to make an adequate determination as to this claim.  

In sum, the Board finds the duty to assist and duty to notify 
provisions of the VCAA have been fulfilled and no further action 
is necessary under the mandate of the VCAA.

Service Connection

The Veteran seeks service connection for a bilateral eye 
disorder, claimed as blindness, which he contends is related to 
service, specifically, his claimed in-service exposure to toxic 
fumes, including diesel, gasoline, and coal exhaust.  

The Veteran's service separation record, his DD-214, indicates 
that his military occupational specialty was truck mechanic.  
While the Veteran's service treatment records are silent for any 
complaints or injuries related to exposure to toxic fumes, the 
Board notes that the Veteran does not assert that he experienced 
an in-service injury of which he was aware.  Instead, he asserts 
that his in-service exposure to toxic fumes caused his bilateral 
eye disorder, claimed as blindness.  The Veteran is competent to 
report, and has done so in writing and before the Board at his 
June 2007 hearing, that his in-service occupation required 
exposure to toxic fumes, and the Board finds no basis upon which 
to determine that the Veterans is not credible.  Based on the 
facts and circumstances of the Veteran's service, specifically, 
his job involving truck repair, and his statements, the Board 
finds, limited to the decision herein, that the Veteran was 
exposed to toxic fumes, including diesel, gasoline, and coal 
exhaust, during service.

In order to establish direct service connection, three elements 
must be established.  There must be medical evidence of a current 
disability; medical, or in certain circumstances, lay evidence of 
in-service incurrence or aggravation of a disease or injury; and 
medical evidence of a nexus between the claimed in-service 
disease or injury and the current disability.  38 C.F.R. § 3.303; 
Hickson v. West, 12 Vet. App. 247, 253 (1999).

Service connection for some disorders will be rebuttably presumed 
if manifested to a compensable degree within one year following 
active service.  The Veteran's bilateral eye disorder, claimed as 
blindness, however, is not a disability for which service 
connection may be granted on a presumptive basis.  38 U.S.C.A. §§ 
1110, 1131 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010).

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).

At the time of the Veteran's pre-induction medical examination in 
October 1961, the Veteran demonstrated corrected visual acuity of 
20/40 in the right eye and 20/30 in the left eye.  The Veteran 
reported a history of eye trouble and that he had worn glasses 
since the age of nine.  At the time of the Veteran's induction 
medical examination in January 1963, the Veteran demonstrated 
corrected visual acuity of 20/40 in the right eye and 20/70 in 
the left eye.  The examiner reported that the Veteran 
demonstrated substandard distant and near vision, corrected by 
glasses, and substandard color vision.  

Service treatment records dated in March 1963 indicate that the 
Veteran demonstrated corrected visual acuity of 20/30 in the 
right eye and 20/40 in the left eye.  Service treatment records 
dated in May 1963 indicate that the Veteran demonstrated the same 
corrected visual acuity as in March 1963.  While the handwriting 
is very difficult to read, it appears that the examiner described 
the Veteran's refractive error as left hypertropia resulting in 
amblyopia.  

Service treatment records dated in August 1963 indicate that the 
Veteran demonstrated corrected visual acuity of 20/50 in the 
right eye and 20/30 in the left eye.  The examiner noted that the 
Veteran only demonstrated uncorrected visual acuity of 20/200.  
The examiner noted that the Veteran's visual acuity could not be 
improved beyond that of his current optical prescription.  The 
examiner determined that the Veteran was not cleared to drive 
military vehicles, with, or without glasses.
At the time of the Veteran's separation medical examination in 
November 1964, the Veteran demonstrated corrected visual acuity 
of 20/30 in the right eye and 20/70 in the left eye.  The Veteran 
reported a history of eye trouble.

Thus, the Veteran's service treatment records are silent for any 
bilateral eye disorder, beyond that of refractive error.  

Subsequent to service, the Veteran's private and VA treatment 
records dated from November 1986 to the present indicate that the 
eye disorders for which the Veteran was treated include, but are 
not limited to:  lattice degeneration without holes, choroidal 
nerves, cataracts; congenital nystagmus; diabetes mellitus 
without diabetic retinopathy; age-related macular degeneration; 
peripapillary atrophy; coloboma; and myelinated nerve fibers. 

The Board notes that the Veteran is in receipt of disability 
benefits from the SSA.  The secondary diagnosis considered by the 
SSA was high myopic retinal degeneration, bilateral.  Diagnoses 
of eye disorders found in treatment records considered by the SSA 
include:  huge myopic crescents, optic nerve; myopic retinal 
macular degeneration with retinal pigment epithelium; high myopic 
astigmatism presbyopia; and mild cataracts.  

Most recently, on VA examination in September 2009, the Veteran 
was diagnosed with age-related cataracts and macular 
degeneration, probable congenital visual impairment, high myopic 
astigmatism, generalized retinal hypopigmentation, and ocular 
albinism.  

For the purposes of entitlement to benefits, the law provides 
that refractive errors of the eye are developmental defects and 
are not diseases or injuries within the meaning of applicable 
legislation.  In the absence of a superimposed disease or injury, 
service connection may not be allowed for refractive error of the 
eyes even if visual acuity decreased in service, as this is not a 
disease or injury with the meaning of the applicable legislation 
relating to service connection.  38 C.F.R. §§ 3.303(c).  
Accordingly, such a disorder cannot be service-connected, absent 
evidence of aggravation by a superimposed disease or injury.  See 
Monroe v. Brown, 4 Vet. App. 513, 514-515 (1993); Carpenter v. 
Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90 (July 18, 
1990); VAOPGCPREC 82-90 (July 18, 1990); and VAOPGCPREC 11-1999 
(Sept. 2, 1990).

A congenital defect is not service connectable in its own right, 
although service connection may be granted for additional 
disability due to disease or injury superimposed upon such defect 
during service.  See VAOPGCPREC 82- 90 (1990).

The Veteran asserts that he had vision problems prior to entry 
into service.  In this regard, the Veteran has submitted a number 
of statements from people who knew him and observed his vision 
problems prior to his entry into service.  The Veteran asserts 
that the instance of treatment, dated in August 1963, wherein he 
was no longer cleared to drive military vehicles is evidence that 
his pre-existing vision problems were aggravated by his period of 
service.  

Thus, the Board does not deny the Veteran's claims that he had 
vision problems prior to entry into service and that his visual 
acuity decreased during service.  However, as discussed 
immediately above, the relevant inquiry in the present appeal is 
whether any congenital defect, in this case, refractive error, 
was aggravated by a superimposed disease or injury, despite any 
decrease in visual acuity during service.
One of the Veteran's private treatment providers submitted a 
statement in August 2007.  The provider reported that the Veteran 
had been a patient for approximately 23 years, and presented in 
August 2007 with best visual acuity of 20/50 in each eye.  The 
provider noted that the Veteran claimed he was exposed to diesel, 
gasoline, and coal exhaust during his period of service, and that 
the Veteran's visual acuity prior to such exposure was much 
better.  The provider reported that the Veteran's decreased 
visual acuity may be due to toxic retina from long exposure to 
smoke or exhaust.  

On VA examination in September 2009, the examiner noted the 
Veteran's history of longstanding visual impairment that began 
prior to entry into service.  The Veteran examiner noted that the 
Veteran's service treatment records were silent for any eye 
problems or injuries.  The examiner noted that the Veteran 
reported that he had been exposed to sulfur fumes while working 
on coal boilers and exhaust fumes while working as a mechanic 
during service.  

Physical examination of the Veteran's eyes in September 2009 
revealed corrected visual acuity of 20/400 near, and 20/100 far, 
in both eyes.  The examiner noted that diplopia was not seen, and 
the external eyes presented within normal limits.  The examiner 
noted that ocular mobility, papillary reactions, and interocular 
pressures were normal.  Slit lamp examination revealed moderate 
nuclear sclerosis along with moderate cortical vacuoles.  Dilated 
fundus examination revealed optic nerves tilted and surrounded by 
peripapillary atrophy, with nerve heads that appeared slightly 
elevated, pink, and healthy.  The examiner noted that cupping was 
not seen.  The retinal vessels appeared moderately tortuous and 
attenuated, and the maculas were flat with moderate/severe 
pigment clumping.  The examiner noted generalized 
hypopigmentation of the retina.  The peripheral retinas appeared 
secure.  

In September 2009, the VA examiner opined that the Veteran's 
cataracts and macular degeneration were less likely than not 
related to service.  The examiner reasoned that the Veteran's 
cataracts and macular degeneration were age-related.  The 
examiner further opined that the Veteran's visual impairment, to 
include high myopic astigmatism, generalized retinal 
hypopigmentation, and ocular albinism, were less likely than not 
related to the toxic retinal damage caused by exposure to fumes 
during service.  The examiner reasoned that such visual 
impairment was congenital.  

In the August 2010 VHA opinion, the physician provided a 
recitation of the pertinent portions of the Veteran's claims file 
regarding his pre-service, in-service, and post-service eye 
complaints.  The physician asserted that the only ocular 
conditions the Veteran demonstrated during service were 
refractive errors.  The physician opined that it was not likely 
that the Veteran's ocular diagnoses were related to his period of 
service, including exposure to toxic fumes.  The physician 
reasoned that the exposure to exhaust fumes and sulfur dioxide 
gas most commonly causes irritation the external eye and mucus 
membranes of the respiratory tract and skin.  The physician 
asserted that the Veteran had poor vision from childhood due to 
congenital and hereditary conditions and later in life developed 
age-related cataracts and macular degeneration, with lattice 
degeneration, a vitreoretinal interface abnormality of the 
peripheral retina which occurs most commonly in myopic patients.  
The physician asserted that the Veteran's development of age-
related macular degeneration and cataracts superimposed on his 
underlying congenital visual impairment and not exposure to toxic 
fumes may have contributed to subjective worsening of the quality 
of vision in this patient after separation from service.  

The Court has held that a medical examination report must contain 
not only clear conclusions with supporting data, but also a 
reasoned medical explanation connecting the two.  See Nieves- 
Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 
21 Vet.App. 120, 124 (2007) ("[A]medical opinion ... must 
support its conclusion with an analysis that the Board can 
consider and weigh against contrary opinions").

In this case, while the Veteran's private physician, in August 
2007, asserted that the Veteran's decreased visual acuity may be 
due to toxic retina from long exposure to smoke or exhaust, he 
did not provide a reasoned medical explanation for his assertion.  
Further, the Veteran's private physician provided a speculative 
medical opinion.  Medical opinions that are speculative, general, 
or inconclusive in nature do not provide a sufficient basis upon 
which to support a claim.  38 C.F.R. § 3.102; see also Warren v. 
Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in 
terms such as "could have been" is not probative); Beausoleil 
v. Brown, 8 Vet. App. 459, 463 (1996) (a generic statement about 
the possibility of a link is too general and inconclusive); 
Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert 
v. Brown, 5 Vet. App. 30, 33 (1993), (a medical opinion expressed 
in terms of "may" also implies "may or may not" and is too 
speculative to establish a causal relationship); Morris v. West, 
13 Vet. App. 94, 97 (1999) (a diagnosis that the appellant was 
"possibly" suffering from schizophrenia was deemed 
speculative). Therefore, as the August 2007 private opinion was 
rendered without a reasoned medical explanation and is 
speculative, the Board accords it little probative weight.  

In this regard, the Board notes that the August 2010 VHA opinion 
also includes the term "may".  At the conclusion of the report, 
the physician asserted that the Veteran's development of age-
related macular degeneration and cataracts superimposed on his 
underlying congenital visual impairment and not exposure to toxic 
fumes may have contributed to subjective worsening of the quality 
of vision in this patient after separation from service.  
However, as the physician had already rendered the opinion that 
the Veteran's ocular diagnoses were not related to toxic fumes, 
and because he opined that the Veteran's macular degeneration and 
cataracts are age-related, his opinion that such age-related 
conditions may have contributed to any decrease in visual acuity 
is not required in this case. 

Thus, the Board finds that the opinion rendered in September 2009 
that the Veteran's cataracts and macular degeneration were 
related to age and not service and that his refractive errors 
were congenital and not related to exposure to toxic fumes, and 
the opinion rendered in August 2010 that the Veteran's ocular 
diagnoses were not related to service, including exposure to 
toxic fumes, to be more probative than the August 2007 private 
opinion.  Such opinions were rendered with reasoned medical 
explanations and they were not speculative in nature.  

Service connection may be granted when all the evidence 
establishes a medical nexus between military service and current 
complaints.  Degmetich v. Brown, 104 F. 3d 1328 (1997); Rabideau 
v. Derwinski, 2 Vet. App. 141 (1992).  In this case, as discussed 
above, the weight of the evidence is against such finding.  The 
evidence of record demonstrates that the Veteran entered service 
with refractive errors, congenital defects, which increased in 
severity during service.  The most probative evidence, however, 
demonstrates that such refractive errors were not aggravated by a 
superimposed disease or injury, including in-service exposure to 
toxic fumes.  Further, there is no evidence that the Veteran 
demonstrated ocular conditions, beyond that of refractive errors, 
during service, or that any current ocular condition is related 
to service, including exposure to toxic fumes.  

The Board has considered the applicability of the benefit of the 
doubt doctrine.  38 U.S.C.A. § 5107; see also Gilbert v. 
Derwinski, 1 Vet. App. 49, 53 (1990).  However, the preponderance 
of the evidence is against the Veteran's claim.  As such, that 
doctrine is not applicable in the instant appeal and the claim of 
entitlement to service connection for a bilateral eye disorder, 
claimed as blindness, must be denied.


ORDER

Service connection for a bilateral eye disorder, including 
refractive errors and claimed as blindness, is denied.




____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs