Citation Nr: 1301066 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 07-10 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a bilateral eye disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from March 1954 to March 1958. This matter came to the Board of Veterans' Appeals (Board) from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. It has since been processed by the RO in Albuquerque, New Mexico. In December 2010, and again in September 2011, the Board remanded the Veteran's claim. The matter has been returned to the Board for further appellate consideration. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. 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. No bilateral eye disability that can be service-connected manifested in service or within one year of service. 2. The evidence does not show any in-service injury, disease, or event, to which any current eye disability can be related. 3. The competent, probative, and persuasive evidence shows that the Veteran does not have any residuals of snow blindness, and that no bilateral eye disability is related to in-service snow blindness or to service in any other way. CONCLUSION OF LAW The criteria for service connection for a bilateral eye disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.102, 4.9 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in this case with respect to the issue on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The information contained in a July 2004 letter satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was not notified of regulations pertinent to the establishment of an effective date and disability rating by letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). However, as the Board concludes below that there is a preponderance of the evidence against entitlement to service connection, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot. The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. Also, the Veteran was provided a VA eye examination and opinion in April 2011. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). This examination and associated opinion were adequate because they provided sufficient information to decide the appeal and were based on a review of the relevant medical records by an ophthalmologist with appropriate expertise. 38 C.F.R. § 3.159(c)(4) (2012); Barr v Nicholson, 21 Vet. App. 303 (2007). Furthermore, the RO has substantially complied with the Board's December 2010 and September 2011 remand instructions. The RO obtained the appropriate VA medical records, and provided the April 2011 VA examination. Also, while it does not appear that the RO referred the claims file to the April 2011 VA eye examiner for an addendum opinion regarding the relationship between the Veteran's bilateral eye disability and in-service disease or injury, including allegations of "snow blindness," the RO associated with the claims file an April 2011 addendum opinion of the April 2011 VA examining ophthalmologist not previously associated with the record, which provided the appropriate opinion with adequate rationale. As noted above, the examination report and accompanying addendum opinion were adequate because, along with the record as a whole, they provided sufficient information to decide the appeal and were based on a review of the relevant medical records by an ophthalmologist with appropriate expertise. Under these circumstances, the Board finds that there has been substantial compliance with the December 2010 and September 2011 remand instructions, and an additional remand to comply with the Board's directives is not required. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). There is no indication in the record that any additional evidence relevant to the issue on appeal is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, for certain chronic diseases, such as organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a prescribed period following discharge from service; the presumptive period for organic diseases of the nervous system is one year. 38 C.F.R. §§ 3.307, 3.309(a). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, as reflected in his May 2004 claim, the Veteran asserts that he currently has a bilateral eye disability related to in-service snow blindness. The Veteran asserted in May 2004 that he was treated for such snow blindness in service. Service treatment records reflect no complaints of or treatment for "snow blindness," or any related problems. At the time of the Veteran's entrance into service in March 1954, it was noted on examination that he had uncorrected vision of 20/80 in the right eye and 20/60 in the left eye, and 20/20 vision in both eyes corrected. It was also noted that the Veteran had simple myopia. On the report of his examination for separation from service in March 1958, the Veteran was noted to have had a normal evaluation of the eyes, and his vision was noted to have been 20/70 in the right eye and 20/80 in the left eye uncorrected, and 20/20 in the right eye and 20/30 in the left eye corrected. In May 1964, the Veteran filed a claim for service connection for "eye sight." He was afforded a VA examination in July 1964, and at that time his complaint was noted to be "defective vision." It was noted that the Veteran complained that his distant vision was blurry. Right eye vision was noted to be 20/30 uncorrected and 20/20 corrected, and left eye vision was noted to be 20/40 uncorrected and 20/20 corrected. Visual fields, papillary reflexes, and extraocular eye movements were normal. Anterior chambers and their contents were normal, and the media was clear in both eyes with no posterior chamber pathology noted. The diagnosis was myopic astigmatism, with normal corrected vision. A private optometry examination, dated in January 2003, reflects that the Veteran had visual acuity of 20/20 in each eye corrected, and that muscle balance, retinal health, corneal health, and papillary reflexes were normal. It was noted that the Veteran had a history of photophobia secondary to snow blindness during his tour of duty. In a September 2004 statement, the Veteran asserted that during his 12-month tour of Greenland beginning in December 1954, within the first three months, he began looking away and down and squinting when outside, and that the white of the snow and glare of the sun would cause such pain in both of his eyes that he would have to stop and close his eyes. He stated that, due to this trauma, an eye doctor discovered that he had weakened vision in both eyes two years after he left service. He further asserted that he had to wear eye glasses with a tinted lens due to the sensitivity of both of his eyes to bright sun light, and that his current doctors told him that this was due to prior exposure and "snow blindness." June 2005 VA treatment records reflect that the Veteran had diabetes and was noted to have had minimal nonproliferative diabetic retinopathy of the right eye and no diabetic retinopathy of the left eye. In an April 2006 statement, the Veteran asserted that when he went to Greenland in 1955, he had 20/20 vision and light and sun glare did not bother him, but that after he left Greenland, he had to start wearing glasses with a tint so that the light and sun glare would not hurt his eyes. He further asserted that he currently felt that his eyes were again in need of more tint or more darkening of the lenses, and that this problem was noted in his service records. February 2007 VA optometry treatment records reflect that the Veteran was noted to have had corrected vision of 20/20 in the right eye and 20/25 in the left. On examination, cornea and conjunctiva were clear for both eyes, irises showed no neovascularization, and lenses showed trace nuclear sclerotic cataracts. The anterior chamber was deep and quiet in both eyes. The macula was clear in both eyes, vessels were within normal limits, the periphery was flat, and the vitreous was clear. The assessment was no diabetic retinopathy. December 2010 VA optometry treatment records reflect the same results as in February 2007, except that vessels showed rare dot heme in both eyes, and the assessment was trace non-proliferative diabetic retinopathy, stable, and trace cataracts. It was also noted in December 2010 that there was chalazion of the lower left lid, but that the Veteran declined removal at the time. The report of an April 2011 VA examination reflects that the Veteran reported light sensitivity in both eyes and constant and longstanding watery eyes at daytime and outdoors regardless of the tint of his glasses. He reported an increased struggle in reading due to his watery eyes. He further reported that he was told that he had snow blindness when stationed in Greenland, and had had watery eye problems and been issued rose-tint glasses for light sensitivity since then. The examiner noted that there was no mention of any snow blindness in the Veteran's medical records, or record of rose-tint glasses issued while in service. It was noted that the Veteran had a history of trace nonporliferative diabetic neuropathy in December 2009, a history of trace cataracts of both eyes, and a history of acute hordeolum of the lower left lid since January 2010. On examination, pupils were briskly reactive, and extraocular muscles were full versions. Distance visual acuity was 20/25-1 in the right eye and 20/40 left eye with correction, and 20/80 in each eye uncorrected. Near visual acuity was 20/25 in the right eye and 20/40 in the left with correction, and 20/30 in the right eye and 20/40 in the left without correction. On slit lamp examination, cornea showed arcus in both eyes with no scars, conjunctiva showed chalazion of the lower left lid, irises were within normal limits, and lenses showed nuclear sclerosis with minimal cortical vacuoles. The anterior chamber was quiet in both eyes and lid/adnexa/lacrimal showed chalazion of the lower left lid. On dilated fundus examination, optic nerve and discs were within normal limits, with pink rim in both eyes. The macula showed rare macular degeneration in the right eye and no edema of either eye, and vessels showed dot and blot hemes of the right eye, and rare dot hemes of the left eye, with no proliferative diabetic retinopathy of either eye. Periphery was flat in both eyes, and vitreous showed floaters in both eyes. The diagnoses were background diabetic retinopathy, right eye greater than left, early cataracts of both eyes, chalazion of the lower left lid, myopia and presbyopia. It was recommended by the examining VA ophthalmologist that the Veteran have yearly follow-up for diabetic retinopathy. After reviewing the record and examining the Veteran, the examining VA ophthalmologist opined that none of the Veteran's diagnosed eye disabilities were related to service, and that the Veteran did not have any residuals of any in-service snow blindness. The examiner noted that, while the Veteran stated that he got snow blindness while stationed in Greenland, there was no record of such condition or treatment rendered. The examiner also explained that in snow blindness a patient developed thermal burns of the cornea causing pain, photophobia, and blurred vision, and that a patient sought medical attention for this condition and needed treatment for two to three days. The examiner further explained that, despite his currently diagnosed eye disorders, the Veteran's eye examination did not show any residual damage due to any such condition that might have happened during active service. In June 2011 the Veteran submitted a statement asserting that his vision was 20/20 when assigned to his station in Greenland, and that, during his one year in Greenland, his eyesight was such that he had to wear protective light-shield glasses and tinted glasses, and that he had continued to wear VA-provided glasses, minus the tint. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the Veteran's service connection claim must be denied. The evidence reflects no bilateral eye disability that can be service-connected that manifested in service or within one year of service. There is no indication in the record of any chronic eye disability involving snow blindness or any other injury or disease, and on the report of his examination for separation from service in March 1958, the Veteran was noted to have had a normal evaluation of the eyes. While both at entrance into service and at separation the Veteran was noted to have had imperfect, uncorrected visual acuity, which was noted to be simple myopia, refractive errors of the eyes, which include myopia and presbyopia, are considered congenital or developmental defects, and therefore are not disabilities within the meaning of applicable regulations providing for payment of VA disability compensation benefits. 38 C.F.R. §§ 3.303, 4.9. Thus, such disorders require more than an increase in severity during service in order to warrant a grant of service connection. The evidence must show that the defect was subject to a superimposed disease or injury during military service that resulted in increased disability. VAOPGCPREC 82- 90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985). In this case, neither the service treatment records nor any other evidence demonstrates that the Veteran's myopia was subject to a superimposed disease or injury during military service that resulted in increased disability. As no eye disability that can be service-connected manifested within one year of service, the provisions of 38 C.F.R. §§ 3.307 and 3.309(a) pertaining to presumptive service connection are inapplicable. Also, while the Veteran has been diagnosed with current eye disorders including diabetic retinopathy, early cataracts of both eyes, chalazion of the lower left lid, myopia and presbyopia, the evidence does not show any in-service injury, disease, or event to which any such current disorder can be related. Service treatment records reflect no complaints of or treatment related to any eye problems other than simple myopia, and at the time of the Veteran's separation from service in March 1958 he was noted to have had a normal evaluation of the eyes, with no problems noted. The only in-service injury or event contended by the Veteran is snow blindness, for which he reportedly received treatment in service, which included the wearing of protective light-shield glasses and tinted glasses in service and continuing after service. The Veteran furthermore contended that, prior to his eye problems while serving in Greenland, his vision was 20/20. The Veteran is competent to report matters within his own personal knowledge, such as being treated for snow blindness in service and for its residuals thereafter. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the weight of the evidence reflects that no such problems related to snow blindness or light sensitivity occurred in service or continued after service. Service treatment records do not reflect any complaints or treatment related to snow blindness or treatment with tinted glasses and, again, at the time of the Veteran's separation from service in March 1958 he was noted to have had a normal evaluation of the eyes; the April 2011 VA examiner explained that in snow blindness a patient developed thermal burns of the cornea causing pain, photophobia, and blurred vision, and that a patient sought medical attention for this condition and needed treatment for two to three days. Also, as noted on his March 1954 entrance examination report, the Veteran's vision on entry into service was not 20/20, as contended by the Veteran, but rather 20/80 in the right eye and 20/60 in the left eye, and it was noted that the Veteran had simple myopia; this fact also weighs against the Veteran's credibility in reporting his in-service eye problems. Furthermore, in May 1964, the Veteran filed a claim for service connection for "eye sight," and on July 1964 VA examination complained of "defective vision," and that his distant vision was blurry. At that time, there was no report by the Veteran or other indication that he had suffered in-service snow blindness, had abnormal sensitivity to light, or was treated with any tinted lenses. The earliest indication of light sensitivity or in-service snow blindness reported by the Veteran is the January 2003 private optometry examination report, dated almost 45 years after the Veteran's period of service. Moreover, even assuming that the Veteran was exposed to bright snow that gave him in-service eye problems, or even if he had been treated for snow blindness in service, and even if at some point subsequent to service the Veteran developed light sensitivity, the evidence nonetheless still weighs against the Veteran's claim. The only competent, probative, and persuasive opinion regarding whether there exist any residuals of in-service snow blindness is that of the April 2011 VA examiner, who diagnosed various eye disorders, but opined that the Veteran did not have any residuals of any in-service snow blindness. The examiner reasoned that in snow blindness a patient developed thermal burns of the cornea causing pain, photophobia, and blurred vision, but the Veteran's eye examination did not show any residual damage due to any such condition that might have happened during active service. The Board finds this opinion to be persuasive, as it was based on a review of records and examination of the Veteran by an ophthalmologist, and is supported by a thorough and persuasive rationale. There is no competent and probative opinion contradicting that of the April 2011 VA examiner. While the January 2003 private optometry examination report includes a notation that the Veteran had a history of photophobia secondary to snow blindness during his tour of duty, such statement contains no rationale to support the assertion, and appears to be mere recitation of Veteran's own reported history. Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1996). Thus, the Board finds that the January 2003 private optometry examination report is not competent and probative evidence of medical nexus, and that the competent medical nexus evidence weighs against the Veteran's claim. Finally, a lay person may speak as to etiology in some limited circumstances, in which nexus is obvious merely through lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, while the Veteran might believe that a current eye disability is medically related to service, the question of causation in this case extends beyond an immediately observable cause-and-effect relationship, and is one that requires medical expertise to answer. As such, the Veteran is not competent to address etiology in the present case. Accordingly, the Board finds that the claim for service connection for a bilateral eye disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012); Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for a bilateral eye disability is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs