Citation Nr: 1126326 Decision Date: 07/13/11 Archive Date: 07/19/11 DOCKET NO. 10-26 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for right eye amblyopia. ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In that decision, the RO denied entitlement to service connection for right eye amblyopia. Jurisdiction over this case was subsequently transferred to the VARO in Fort Harrison, Montana, and that office forwarded the appeal to the Board. FINDINGS OF FACT 1. Right eye amblyopia clearly and unmistakably preexisted service. 2. Any increase in severity was clearly and unmistakably due to the natural progress of the disease. CONCLUSION OF LAW Right eye amblyopia preexisted service and was not aggravated thereby; the presumption of soundness at entry is rebutted. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a May 2009 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for service connection for right eye amblyopia. This included telling him that he had to show he had a disease that began in or made worse by service. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the May 2009 letter complied with this requirement. The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability-rating and effective-date elements of his claim, in the May 2009 letter. The RO also sent a post-rating November 2009 letter that contained similar information, and subsequently readjudicated the claim in an April 2010 statement of the case (SOC), thus curing the timing deficiency in this latter letter. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service VA treatment records. The RO also afforded the Veteran a July 2009 VA-authorized examination. For the reasons discussed below, this examination was adequate because the examiner answered the relevant questions and explained the reasons for his conclusions, as discussed below. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for entitlement to service connection for right eye amblyopia is thus ready to be considered on the merits. Analysis As an initial matter, the Board notes that the Veteran did not engage in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran has been diagnosed with right eye amblyopia and was in fact separated from service based on this diagnosis. As shown below, the lay and medical evidence reflects that right eye amblyopia preexisted service. Thus, the dispositive issues on this appeal relate to the presumption of soundness. Every Veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C.A. § 1111. On the December 1965 enlistment examination, the Veteran's right eye vision was 20/30, correctable to 20/30, and the summary of defects and diagnoses indicated minimal refractive error in the right eye. As refractive error is not a disease or injury under VA law, 38 C.F.R. § 3.303(c), and right eye amblyopia was not noted, the Board finds that the presumption of soundness attached in this case. To rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). The clear and unmistakable evidence standard requires that the result be undebatable. Cotant v. West, 17 Vet. App. 116, 131 (2003). In considering the effect of section 1111 on claims for service-connected disability, VA may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (citing 38 U.S.C.A. § 1153). The cited statute provides that aggravation by service is presumed where there is an increase in disability during service, unless there is a specific finding that the increase is due to the natural progress of the disease. In this case, the lay and medical evidence clearly and unmistakably reflects that right eye amblyopia preexisted service. In his April 2009 claim, the Veteran contended that his right eye amblyopia became worse during service, not that it was incurred during service, thus implying that the right eye amblyopia preexisted service. Moreover, a December 1967 STR reflects that when the Veteran was seen for an air crew candidate examination, right eye vision was found to be 20/100. At this time, the Veteran indicated that his right eye vision had always been bad, and a subsequent December 1967 optometry examination showed right eye vision of 20/100, uncorrectable due to amblyopia. The physician who prepared the December 1967 STR opined that the Veteran should be separated from service on the grounds of preexisting visual defect. A January 1968 notation on the air crew examination report contains a diagnosis of defective visual acuity, right eye, uncorrectable, due to amblyopia. The Veteran was subsequently separated from service based on a diagnosis of defective visual acuity, uncorrectable. In addition, VA treatment notes and the Veteran's statements submitted in connection with the appeal reflect that he had childhood right eye amblyopia. A February 2002 VA treatment note also indicated that the Veteran was hit in one eye, possibly the left, with a knife at age 5 and had to wear an eye patch for a couple of days. The assessment included history of childhood amblyopia in the right eye, optic nerve hypoplasia (ONH) of the left eye with tilt and some associated temporal pallor that could be associated with left eye trauma at the age of 5. The above lay and medical evidence reflects that right eye amblyopia clearly and unmistakably preexisted service. The next issue is whether the preexisting right eye amblyopia was aggravated by service. As noted by the Veteran, his right eye vision worsened during service. The only medical opinion on the etiology of the in-service worsening of the Veteran's vision is that of the optometrist who conducted the July 2009 VA-authorized examination. After examining the Veteran, the optometrist diagnosed right eye amblyopia, established, stable, and diabetes with no retinopathy. He indicated that this would be considered a "developmental condition." The optometrist also found that the amblyopia clearly and unmistakably existed prior to service, and noted that, while visual acuity seemed to be a little better at that time as opposed to the present time, the amblyopia was definitely present. The optometrist found that, based on the fact that the Veteran's ocular health was good in both eyes, there did not appear to be any other pathology present that may have worsened his vision beyond its natural progression. The optometrist noted that the Veteran's corrected vision in the right eye was 20/30 before military service and his then current corrected vision was 20/60. The optometrist opined, "I cannot explain the difference in visual acuity between then and now, but it is less likely as not related to an ocular condition acquired during military service." He also noted that "continual suppression of the right eye due to farsightedness and subsequent amblyopia may explain a decreasing best-corrected visual acuity." The Board finds that the July 2009 opinion clearly and unmistakably indicates that the right eye amblyopia was not aggravated by service, but, rather, that there was no superimposed pathology and the change in acuity was due to natural progress. The optometrist noted the preexisting amblyopia, the worsening of the Veteran's vision, and the lack of a clear explanation for this worsening, other than the natural progress of the disease. Thus, the thrust of the optometrist's statement was that an eye disorder, including amblyopia, did not cause the Veteran's vision to worsen during service. While the optometrist did not indicate that he reviewed the claims file, he accurately characterized the evidence of record and explained the reasons for his conclusions. Thus, his opinion constitutes competent, probative, and clear and unmistakable evidence weighing against the claim for entitlement to service connection for amblyopia. See Nieves-Rodriguez, 22 Vet. App. at 304. In his notice of disagreement and substantive appeal, the Veteran noted his worsening eyesight during service, challenged the characterization of his amblyopia as congenital, contested that his amblyopia could have been caused by the injury at age 5 because "we don't know which eye that injury was in," and the theoretical nature of the reasons for denial. Regarding the Veteran's statements as to the worsening of his eyesight during service, the Board acknowledges this worsening, but has found that it was not due to aggravation. Moreover, worsening eyesight itself is not a disease or injury under VA law. See 38 C.F.R. § 3.303(c) (refractive error of the eye as such is not a disease or injury within the meaning of applicable legislation). As to the reference to the amblyopia as congenital, the RO used the term congenital in its September 2009 rating decision, but the Board has not in its decision herein considered the preexisting amblyopia to be a congenital defect that is not considered a disease or injury within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Rather, the Board has analyzed whether the preexisting amblyopia was aggravated by service. Thus, whether characterized as a "congenital disease" or a "preexisting disease," the aggravation analysis is the same, and any characterization of the disease as congenital by the RO was harmless. See Quirin v. Shinseki, 22 Vet. App. 390, 394-395 (2009) (discussing distinction between congenital defect and congenital disease). As to the eye injury at age 5, while the RO did refer to the injury as a possible cause of amblyopia symptoms, neither the July 2009 VA examiner nor the Board considered this eye injury in relation to the etiology of the worsening vision. Consequently, any error by the RO in this regard was harmless. The Board must also consider the Veteran's lay statements attributing the worsening of his eyesight during service to be the result of his preexisting amblyopia. While the Veteran is competent to testify as to his observation of worsening eyesight, the internal cause of this worsening would appear to be the type of medical matter as to which the courts have held lay testimony is not competent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). See also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). In any event, even if the Veteran were competent to opine as to the etiology of his worsening in-service vision, the specific and reasoned opinion of the trained professional of a lack of aggravation outweighs the Veteran's general lay assertion of aggravation. For the foregoing reasons, the evidence clearly and unmistakably reflects both that the Veteran's right eye amblyopia preexisted service, and was not aggravated thereby. The presumption of soundness has therefore been rebutted. Given the preexisting disease and lack of in-service aggravation, entitlement to service connection for right eye amblyopia on an aggravation basis is not warranted. Consequently, the benefit of the doubt doctrine is not for application, and the claim for entitlement to service connection for right eye amblyopia must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for right eye amblyopia is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs