Citation Nr: 1129331 Decision Date: 08/09/11 Archive Date: 08/16/11 DOCKET NO. 07-20 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an eye disorder, to include blepharitis, macular degeneration, and refractive error, to include as secondary to service-connected arteriosclerotic heart disease with hypercholesterolemia, status post coronary artery bypass grafting. REPRESENTATION Appellant represented by: Fleet Reserve Association ATTORNEY FOR THE BOARD M. Purdum, Associate Counsel INTRODUCTION The Veteran has unverified service from October 1961 to September 1989 and verified service from October 1989 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) from a March 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied the Veteran's claim of entitlement to service connection for macular degeneration, to include as secondary to service-connected arteriosclerotic heart disease with hypercholesterolemia, status post coronary artery bypass grafting. In February 2009, Board remanded the issue for additional development. The file has now been returned to the Board for further consideration. The Board notes that during the pendency of the Veteran's appeal, the United States Court of Appeals for Veterans Claims (Court) held that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Thus, the Veteran's claim regarding his macular degeneration has been expanded to include his additional eye disorders of record, blepharitis and refractive error. FINDING OF FACT The probative evidence of record demonstrates that the Veteran's eye disorder, to include blepharitis, macular degeneration, and refractive error, is unrelated to his service or any incident therein, was not aggravated by superimposed disease or injury, and is not related to his service-connected arteriosclerotic heart disease with hypercholesterolemia, status post coronary artery bypass grafting. CONCLUSION OF LAW An eye disorder, to include blepharitis, macular degeneration, and refractive error, was not incurred in or aggravated by the Veteran's active service, including service-connected arteriosclerotic heart disease with hypercholesterolemia, status post coronary artery bypass grafting. 38 U.S.C.A. §§ 1101, 1110, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (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 a 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. The Veteran was notified in a November 2005 VCAA letter, before the initial adjudication of the claim, 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, and obtain service, VA, or private treatment records as indicated. A December 2006 VCAA letter also informed the Veteran as to 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, 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). 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. 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. 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 treatment records or other records relevant to active duty and VA or VA- authorized treatment 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 afforded a VA examination in August 2008 as to whether there was a relationship between his age-related macular degeneration and his in-service blepharitis. Also, a VA opinion was rendered in April 2009 as to whether there was a relationship between the Veteran's age-related macular degeneration and his service-connected arteriosclerotic heart disease with hypercholesterolemia, status post coronary artery bypass grafting. In November 2010, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). Subsequent to the Board seeking clarification of the opinion, a final opinion was received in March 2011. In April 2011, the Board informed the Veteran that it had requested a specialist's opinion in conjunction with the adjudication of the appeal, provided him a copy of that opinion, and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. The Veteran's representative, in May 2011, stated that he had no further comment. The Veteran's service treatment records and all identified, authorized, and available post-service treatment records relevant to the issues on appeal have been requested or obtained. Additionally, the Board finds there has been substantial compliance with its February 2009 remand directives. The Board notes that the Court has recently held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the AMC obtained a medical opinion in April 2009 and issued a Supplemental Statement of the Case in May 2010. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claims based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2010). 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 In order to establish 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. See 38 U.S.C.A. §§ 101(16), 1110, 1131; 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain chronic diseases will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. However, the Veteran's eye disorder, to include blepharitis, macular degeneration, and refractive error, has not been diagnosed as a disability for which service connection may be granted on a presumptive basis. 38 U.S.C.A. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. 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). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet. App. 34 (1991). 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. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The record before the Board contains a number of post-service treatment records, which will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence.) The Veteran asserts entitlement to service connection for an eye disorder, to include blepharitis, macular degeneration, and refractive error, as secondary to his service-connected arteriosclerotic heart disease with hypercholesterolemia, status post coronary artery bypass grafting. Specifically, at the time of his July 2006 Notice of Disagreement, the Veteran asserted that the prolonged by-pass procedures required for his service-connected heart condition contributed to his present left-eye macular degeneration. Also, at the time of his June 2007 Substantive Appeal, the Veteran asserted that he was advised to treat his in-service eye disorder with eyedrops and eye wash, and that such contributed to his current macular degeneration. The Veteran's service treatment records dated in July 1970 indicate that he complained of pain and pressure in the right upper eye or sinuses. No eye abnormality was noted by the ophthalmologist, and the Veteran was treated for sinusitis. Report of Medical History, completed by the Veteran and dated in December 1987, indicates that he reported a history of eye trouble. Record of optometric examination dated in April 1988 indicates that the Veteran complained of an acute onset of blepharspasms and reported that his lid twitched for two years, but more so lately. The examiner noted pigmentary changes, superonasal to macula, left eye, and the Veteran was given a prescription for glasses. Record of optometric examination dated in February 1989 indicates that the Veteran presented, without abnormalities, for a prescription upgrade. There exists a service treatment record with an illegible date of treatment. At that time, the Veteran presented with ocular health within normal limits. Service treatment records dated in September 1990 indicate that the Veteran was being medically managed for two-vessel atherosclerotic cardiovascular disease and underwent a cardiac catheterization in June 1990. Subsequent to service, in May 2005, the Veteran was seen by a VA treatment provider and diagnosed with bilateral age-related macular degeneration, blepharitis, and refractive error. Based on the forgoing, evidence of current disability and evidence of in-service eye complaints, the RO sought a medical opinion as to the Veteran's eye disorder, claimed as macular degeneration, and the relationship between such, if any, and his period of service. On VA examination in August 2008, the examiner noted the Veteran's history of blepharitis during service, and treatment for the same with eye drops and lid scrubs. The examiner noted the Veteran's recent diagnosis of mild macular degeneration. Subsequent to physical examination and review of the claims file, the examiner opined that the Veteran's blepharitis, noted to be not visually significant at the time of the examination, was most likely not related to macular degeneration. Subsequent to review of opinion rendered in August 2008, the Board sought an additional opinion. In April 2009, subsequent to review of the claims file, the examiner opined that the Veteran's macular degeneration is less likely as not caused by or related to or worsened beyond natural progression by his service-connected arteriosclerotic heart disease with hypercholesterolemia and heart catheterization and bypass surgery required for the same. He reasoned that the preponderance of current medical opinion and data does not support the Veteran's contention. As noted above, the Board, in November 2010, sought an opinion of a medical specialist from the VHA. Subsequent to the Board seeking clarification of the opinion, a final opinion was received in March 2011. The specialist provided an exhaustive recitation of the Veteran's pertinent history and provided opinions as to whether the Veteran's eye disorder, to include blepharitis, macular degeneration, and refractive error, was related to service, including his in-service eye complaints, or in-service treatment for a heart condition, or service-connected arteriosclerotic heart disease with hypercholesterolemia and heart catheterization and bypass surgery required for the same. The VHA specialist opined that the Veteran's macular degeneration is not caused by or a result of the Veteran's blepharitis. He reasoned that there is no supporting scientific or clinical evidence that links macular degeneration to blepharitis, and that macular degeneration is an age-related disease that affects the macular region of the retina within the eye and has no correlation to the eyelids where blepharitis occurs. The VHA specialist opined that the Veteran's macular degeneration is not caused by or a result of his service-connected arteriosclerotic heart disease with hypercholesterolemia and heart catheterization and bypass surgery required for the same, including the in-service surgical catheterization for the same. He reasoned that there is no supporting scientific literature that links macular degeneration to such heart treatment. The VHA specialist opined that the Veteran's current blepharitis is less likely as not caused by or a result of his in-service episode of blepharitis. He reasoned that the Veteran had one single documented episode of staph blepharitis in 1983 that was successfully treated with antibiotics, and only a reported history of recurrent blepharitis by the Veteran on examination in 1988. He stated that there is thus no link to a single bacterial blepharitis that was successfully treated with one round of antibiotic therapy to the Veteran's current blepharitis. The VHA specialist opined that the Veteran's current blepharitis is not caused by or a result of his service-connected arteriosclerotic heart disease with hypercholesterolemia and heart catheterization and bypass surgery required for the same, including the in-service surgical catheterization for the same. He reasoned that there is no scientific literature that links blepharitis to arteriosclerotic heart disease with hypercholesterolemia, coronary artery bypass grafting, or surgical catheterization. He stated that blepharitis is a chronic swelling or infection of the eyelids and or the meibomian glands which are not associated with the above-mentioned heart conditions or procedures. The VHA specialist opined that the Veteran's current refractive errors are not caused by or a result of or aggravated by superimposed disease or injury during service, or any aspect thereof, including blepharitis and service-connected arteriosclerotic heart disease with hypercholesterolemia and heart catheterization and bypass surgery required for the same, including the in-service surgical catheterization for the same. He reasoned that a person's refractive error has no relation as to whether they have blepharitis or heart disease, and that there is no clinical evidence and no supporting scientific literature that links these conditions. Here, the medical opinion by the VHA specialist is credible, and represents the most probative evidence of record, because it is based on a thorough review of the file and available treatment records and the examiner offered a reasonable medical basis for his conclusions. Absent credible evidence to the contrary, the Board is not in a position to further question the results of this examination. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board has considered the Veteran's lay testimony that his eye disorder, to include blepharitis, macular degeneration, and refractive error, is related to service, including his in-service blepharitis, or to his service-connected arteriosclerotic heart disease with hypercholesterolemia and heart catheterization and bypass surgery required for the same, including the in-service surgical catheterization for the same. However, the Board finds that the Veteran is not competent to provide an etiological nexus between his current eye disorder and his service-connected heart condition or treatment required for the same; as such assessments are not simple in nature. The Veteran has not offered evidence that he possesses the specialized skills and knowledge required to make such assessments. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Thus, the Board finds that the Veteran's lay assertions are not competent or sufficient and are thus not probative evidence in the present case. 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 sum, while the Veteran is service-connected for arteriosclerotic heart disease with hypercholesterolemia and heart catheterization and bypass surgery required for the same, there is no probative evidence establishing that his eye disorder, to include blepharitis, macular degeneration, and refractive error, was caused or aggravated by his service-connected heart condition and the treatment required for the same. Thus, service connection is not warranted on a secondary basis. Also, in this case, there is no probative evidence establishing that his eye disorder, to include blepharitis, macular degeneration, and refractive error, is related directly to his active service, including his in-service treatment for blepharitis or surgical catheterization required for his heart disorder. Thus, service connection is not warranted on a direct basis. Also, as discussed above, the Veteran's eye disorder has not been diagnosed to include a disability for which presumptive service connection is available. Thus, service connection is not warranted on a presumptive basis. In sum, the Board thus finds that the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim of entitlement to service connection for an eye disorder, to include blepharitis, macular degeneration, and refractive error, to include as secondary to arteriosclerotic heart disease with hypercholesterolemia, status post coronary artery bypass grafting, must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an eye disorder, to include blepharitis, macular degeneration, and refractive error, to include as secondary to arteriosclerotic heart disease with hypercholesterolemia, status post coronary artery bypass grafting, is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs