Citation Nr: 1237671 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 08-17 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a chorioretinal scar of the left eye. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran & his wife ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from April 1954 to March 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied, in pertinent part, the Veteran's claim of service connection for a chorioretinal scar of the left eye (which was characterized as left exotropia (claimed as left eye condition)). A Travel Board hearing was held at the RO in December 2009 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. Having reviewed the evidence of record, to include the Veteran's lay statements and Board hearing testimony, the Board finds the issue on appeal is characterized more appropriately as stated on the title page of this decision. In March 2010 and in September 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board observes that, in a September 1960 rating decision, the RO denied the Veteran's claim of service connection for a left eye disorder (characterized as exonopsia of the left eye). The Veteran did not appeal this decision, and it became final. See 38 U.S.C.A. § 7104 (West 2002). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board also observes that a change in diagnosis or the specificity of the claim must be considered carefully in determining whether the claim is based on a distinct factual basis. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). In Boggs, the United States Court of Appeals for the Federal Circuit found that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury when it is an independent claim based on distinct factual bases. The Board also recognizes the holding in Velez v. Shinseki, 23 Vet. App. 199 (2009), that the focus of the analysis must be whether the evidence truly amounted to a new claim based upon a different diagnosed disease or whether the evidence substantiates an element of a previously adjudicated matter. In this case, the Board notes that the Veteran has been diagnosed as having a chorioretinal scar of the left eye. As in Boggs, the Veteran's service connection claim for a chorioretinal scar of the left eye is based on a distinct factual basis than the service connection claim for a left eye disorder (characterized as exonopsia of the left eye) previously considered by the RO in September 1960. See Boggs, 520 F.3d at 1330. And as in Velez, the evidence submitted since the Veteran filed his claim for service connection for a chorioretinal scar of the left eye in March 2006 truly amounts to a new claim based upon a different diagnosed disease than what the RO considered in September 1960. See Velez, 23 Vet. App. at 199. Therefore, the threshold question of whether new and material evidence has been submitted is not implicated by this decision and the issue on appeal is as stated on the title page of this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has reported consistently that he incurred a chorioretinal scar of the left eye during active service as a result of in-service trauma. 2. The competent evidence suggests that the Veteran's current chorioretinal scar of the left eye is related to active service. CONCLUSION OF LAW A chorioretinal scar of the left eye was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify the appellant of information and evidence necessary to substantiate the claim and redefined its duty to assist him in obtaining such evidence. 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2011). With respect to the Veteran's service connection claim for a chorioretinal scar of the left eye, given the favorable disposition of the action here, which is not prejudicial to him, the Board need not assess VA's compliance with the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). The Veteran contends that he incurred a chorioretinal scar of the left eye during active service. He specifically contends that he injured his left eye when he ran in to a tree branch during nighttime maneuvers while on active service. He also specifically contends that he has experienced continuous disability due to his chorioretinal scar of the left eye since his service separation. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board finds that the evidence supports granting the Veteran's claim of service connection for a chorioretinal scar of the left eye. The Veteran has contended that he experienced a chorioretinal scar of the left eye during active service and his current chorioretinal scar of the left eye is related to service. The Board agrees. The Veteran's service treatment records show that he was treated for a chorioretinal scar of the left eye during active service. Although the Veteran's eyes were normal clinically and his vision was 20/20 in both eyes at his enlistment physical examination in April 1954, the service treatment records show that, on outpatient treatment in May 1954, old choroditic lesions were noted in the left eye. The Veteran's visual acuity was 20/20 in the right eye (or within normal limits) and 20/400 in the left eye. The in-service examiner recommended that the Veteran be given an "E3" physical profile. The Veteran was given a permanent physical profile for "poor vision in left eye" and was restricted from duty with weapons or tools which might damage his eyes later in May 1954. At a pre-discharge (or separation) physical examination in December 1956, clinical evaluation showed that the Veteran's eyes were normal. On outpatient treatment in January 1957, approximately 2 months prior to his service separation, it was noted that the Veteran had "very poor vision" and a large central old chorioretinal scar "+ some deciminated scars" in his left eye. The Veteran also had left exotropia. The in-service examiner noted that an eyeglasses prescription "would not aid this man." The diagnosis was old chorioditis scars in the left eye. The competent post-service evidence (in this case, the Veteran's lay statements, Board hearing testimony, and post-service VA and private treatment records and examination reports) supports a finding that his current chorioretinal scar of the left eye is related to active service. The Veteran has reported consistently to his post-service VA and private treating clinicians that he first experienced a chorioretinal scar of the left eye during active service. For example, on VA outpatient treatment in June 2007, the Veteran complained of a "hole" in the left eye for 35 years but was "unsure if [it was a] macula." The Veteran's visual acuity was 20/400 in the left eye. The Veteran's pupils were equal, round, and reactive to light and accommodation. The Veteran testified at his December 2009 Board hearing that he experienced an eye injury during active service which lead him to experience a chorioretinal scar of the left eye in service. See Board hearing transcript dated December 10, 2009, at pp. 20-22. He also testified that he had injured his left eye when he ran in to a tree during nighttime maneuvers while on active service. Id., at pp. 21. He testified further that his current left eye vision was blurry and he could only see shapes. Id., at pp. 23. On VA examination in June 2010, the Veteran complained of a left eye disorder, a field cut in the left eye, and blurring in the left eye. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. This examiner noted that there was no visual acuity noted at the Veteran's entry on to active service but there was "documentation multiple times of a chorioretinal scar in the left eye causing visual problems dating back to 1954." The Veteran also had "documentation of trauma to [the] left eye, with tree branch, but no penetrating injury or visual sequelae were thought to result from the injury acutely." Funduscopic examination of the left eye showed some sclerotic arterioles along the cilioretinal path, attenuated arterioles in general, a circular elevated white lesion temporal to fovea with surrounding pigment and chorioretinal atrophy, syneresis, few anterior vitreous cells, an area of tractional retinal detachment in the periphery at 2:00 with stalk-like fibrotic band extending into the vitreous fluid toward ora serrata. Physical examination of the left eye showed a visual field defect, a centrally located scotoma, and presbyopia. The Veteran's visual acuity in the left eye was 20/40 corrected and uncorrected at distance and near vision. The VA examiner opined that, because the Veteran's visual acuity at his entry on to active service was not noted in his service treatment records, because the scar was discovered while he was on active service, and because the in-service appearance of the scar "was not consistent with the retinal appearance following typical trauma," it was less likely than not that the Veteran's chorioretinal scar of the left eye was related to active service. This examiner also opined that a more likely differential diagnosis was an old chorioretinal granuloma in the left eye from an infectious etiology such as toxoplasmosis or toxocarina "which could have been present since birth or contracted sometime after birth without the [Veteran] knowing it. It is not likely that this was contracted during service and is not likely to be due to trauma, but without pre-service examination reports or pre-service visual acuity this remains speculation." The diagnosis was chronic and inactive chorioretinal granuloma/scarring of the left eye with very poor central vision and diminished temporal nasal visual field. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). The Board notes that, following VA examination in June 2010, the VA examiner opined that, because the Veteran's visual acuity at his entry on active service was not noted in the service treatment records, it was less likely than not that a chorioretinal scar of the left eye was related to service. The Board finds that this negative nexus opinion is based upon an inaccurate factual premise (i.e., that the Veteran's visual acuity was not noted at service entrance) and is not supported by the clinical evidence of record. As noted above, the Veteran's service treatment records show that the Veteran's eyes were normal clinically and his vision was 20/20 (or within normal limits) in both eyes at his enlistment physical examination in April 1954. Accordingly, the Board finds that the June 2010 VA examiner's opinion is not probative on the issue of whether the Veteran's current chorioretinal scar of the left eye is related to active service. In a March 2010 statement, Dr. R.E. stated that the Veteran's eyes had been examined. The Veteran had reported to Dr. R.E. that he had "a history of foreign body trauma to his left eye during military training in 1954. He is left with a 'legally blind' left eye as a result of that injury." On VA examination in November 2011, the Veteran complained that "he was hit in the left eye" during service and has had poor vision since this injury. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The Veteran's visual acuity was 15/200 in the left eye. Physical examination showed pupils equal, round, and reactive to light and accommodation, no afferent pupillary defect, a chorioretinal scar in the macula of the left eye, and no visual field defect. The VA examiner stated that a review of the Veteran's claims file showed that he had been diagnosed as having an old chorioretinal scar of the left eye in May 1954. This examiner also stated that he could not determine how old the Veteran's left eye scar was in 1954. "The description of the scar and vision reduction caused by the scar" had been stable since onset. This examiner opined that it would be speculation to determination the etiology of the Veteran's chorioretinal scar of the left eye "be it infectious or traumatic. The exact onset of this scar is also unknown as there is no record indicating acute vision loss, and/or normal visual acuity prior to the described in service injury." This examiner stated further that the Veteran's reported symptoms of poor left eye vision were consistent with the appearance of a chorioretinal scar. The diagnosis was chorioretinal scar. In an "Ophthalmology Consultation Report" dated in November 2011, J.I.H., M.D., stated that the Veteran's visual acuity in the left eye was 20/320. He also diagnosed the Veteran as having a chorioretinal scar of the left eye "due to trauma in 1953." In a December 2011 statement, Dr. R.E. opined that the Veteran had staphyloma (or protrusion of the cornea or sclera lined with uveal tissue, resulting from inflammation). Dr. R.E. also opined that the Veteran's staphyloma was secondary to an in-service left eye injury in 1954. Dr. R.E. opined further that the Veteran's left eye vision was "legally blind at 20/400." In a September 2012 opinion, a VHA clinician stated that the Veteran's current left eye disability was a "chorioretinal scar involving the macula with poor vision described as 20/200 or 20/400 depending upon note reviewed." This VHA clinician also stated that the Veteran had normal visual acuity of 20/20 at his enlistment physical examination so it was "not possible for chorioretinal scar of macula to have been present." Since the Veteran had normal visual acuity at his enlistment (or entrance) physical examination, this VHA clinician concluded that his chorioretinal scar of the macula of the left eye "could not have been present prior to his entrance exam." This clinician noted that she could not assess whether the Veteran's chorioretinal scar of the left eye "changed in any way or was worsened in any way after it was noted in April 1954." She surmised that the November 2011 VA examiner did not review the Veteran's enlistment physical examination "which indicates normal vision in both eyes prior to entry into service." This VHA clinician concluded that the Veteran's chorioretinal scar of the left eye occurred after his enlistment physical examination "whether by trauma as per [the Veteran's] history which is most likely or by infectious cause, which seems less likely since [his] entrance exam was normal." The evidence shows that the Veteran currently experiences a chorioretinal scar of the left eye that is related to active service. He has reported consistently to his post-service VA and private treating clinicians that he incurred a chorioretinal scar of the left eye during active service, including after an in-service eye injury. The competent evidence in this case indicates that the Veteran's current chorioretinal scar of the left eye is related to active service. He testified credibly before the Board in December 2009 that his chorioretinal scar of the left eye began during service. He also has maintained consistently, including in his Board hearing testimony, that he experienced an eye injury during active service which lead him to experience a chorioretinal scar of the left eye in service. Although the Veteran's service treatment records do not show that he was treated for a left eye injury during service, he certainly is competent to report that he experienced an eye injury in service which resulted in a chorioretinal scar of the left eye following this in-service trauma. See Layno, 6 Vet. App. at 470; Barr, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The post-service evidence (in this case, the Veteran's VA and private outpatient treatment records and examination report) clearly document continuing complaints of and treatment for a chorioretinal scar of the left eye. This evidence also contains a competent and probative medical opinion from a VHA clinician dated in September 2012 which links the Veteran's current chorioretinal scar of the left eye to active service. There is no competent contrary opinion of record. In summary, the Board finds that service connection for a chorioretinal scar of the left eye is warranted. See 38 C.F.R. §§ 3.303, 3.304. ORDER Entitlement to service connection for a chorioretinal scar of the left eye is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs