Citation Nr: 1306434 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-03 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for bilateral eye disability. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from January 1969 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Philadelphia, Pennsylvania. In October 2010, the Veteran testified before a Decision Review Officer in Philadelphia, Pennsylvania. A transcript of that hearing is of record. In April 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in November 2011 and was remanded for further development. It has now returned to the Board for further appellate consideration. The Board finds that the Appeals Management Center substantially complied with the mandates of the Board remand, and the Board will proceed to adjudicate the appeal. FINDINGS OF FACT 1. Presbyopia, myopia, and astigmatism are due to refractive error of the eyes. 2. The competent clinical evidence of record is against a finding that the Veteran has a "lazy eye." 3. The competent clinical evidence of record is against a finding that the Veteran has cataracts, myopia, and/or presbyopia, causally related to, or aggravated by, active service. 4. The earliest clinical evidence of an eye disability is more than two decades after separation from service. 5. The Veteran is less than credible with regard to any contention that the onset of a current eye disability (other than refractive error of left eye) was in service. 6. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has an eye disability causally related to, or aggravated by, active service. CONCLUSION OF LAW A bilateral eye disability was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 101(24), 1110, 1154 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.9 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in May 2009. VA also has a duty to assist the Veteran in the development of the claim. The claims file contains VA and private medical records, and the statements of the Veteran in support of his claim. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. The claims file includes the Veteran's statement and a statement from the office of Dr. E.H. that additional medical records are not available. (See Board hearing transcript page 3.) The claims file includes a VA examination report dated in December 2011 and a VHA opinion dated in October 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examination and opinions obtained in this case are adequate, as the opinions are predicated on a review of the Veteran's claims file, to include his STRs and a clinical examination. They consider the pertinent evidence of record, to include statements of the Veteran regarding his symptoms. Rationale was provided for the opinions proffered. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Congenital or developmental defects, e.g., refractive error of the eyes, as such, are not diseases or injuries within the meaning of applicable legislation and, thus, are not disabilities for which service connection may be granted. 38 C.F.R. § 3.303(c) (2012); see also 38 C.F.R. § 4.9 (2012); Beno v. Principi, 3 Vet. App. 439 (1992). Refractive errors are defined to include astigmatism, myopia, hyperopia, and presbyopia. See M21-1MR, Part III, Subpart iv, 4.B.10.d. If a defect is aggravated by service such that a superimposed disease or injury occurred during service, service connection may be established for the resultant disability. VAOPGCPREC 82-90. The presumption of soundness does not apply to congenital defects. 38 C.F.R. § 3.303(c); see Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed.Cir.2003); see Winn v. Brown, 8 Vet. App. 510 (1996)(holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"); see also Quirin v. Shinseki, 22 Vet. App 390 (2009). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran has stated that when he was discharged from the Army, he was having problems with his vision and that he still has those issues since service. (See VA Form 9.) The Veteran has had diagnoses of presbyopia, early cataracts, dry eye, atopic dermatitis bilaterally, myopia, and compound myopic astigmatism. Myopia is also known as nearsightedness. Presbyopia is defined as hyperopia and impairment of vision due to advancing years or to old age. A cataract is a partial or complete opacity on or in the lens of the eye or the capsule of the lens. Astigmatism is the unequal curvature of the refractive surfaces of the eye. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007). Presbyopia, myopia, and astigmatism are refractive errors and are not subject to service connection. See M21-1MR, Part III, Subpart iv, 4.B.10.d. The Veteran's STRs are negative for any complaints of, or treatment for, his eyes. His May 1969 report of medical examination for enlistment/induction purposes reflects that his visual acuity was 20/20 in both eyes. His September 1970 report of medical examination for separation purposes reflects that his visual acuity was 20/20 in the right eye, and 20/25 in the left eye. The Board acknowledges the Veteran's statements that he could not pass a vision examination upon separation from service, but the Board finds that the Veteran's STRs, which are contemporaneous to service, are more credible than his statement made approximately 40 years later. The May 1969 examination report does not indicate that the Veteran failed to pass a vision test. To the contrary, it reflects perfect (20/20) vision in the right eye, and notes only slightly less than perfect vision in the left eye (20/25). See Cartright v. Derwinski, 2 Vet. App.24, 25 (1991) (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony). The earliest clinical record of dry eye and cataracts is decades after separation from service. A June 2007 record reflects that the Veteran had dry eye and small cataracts. An October 2009 record reflects that the Veteran had "very early cataracts" in both eyes. There was no retinal pathology. The Veteran claims that he had a lazy eye due to service and that the lazy eye affected his vision adversely. The claims file includes correspondence by the Veteran dated in January 2010 in which he stated that in the early 1970s and possibly 1980s, he was seen by Dr. E.H. and was told by Dr. E.H. that he had probably developed lazy eye from doing paperwork in the clerical field. The Veteran testified at the October 2010 DRO hearing that he did not sustain any injury to his eyes while in service. He reports that upon discharge, he was told that he needed glasses. He further testified that approximately three months after separation from service, he was told by an eye doctor that "it's a good possibility that [he had] developed lazy eye from doing paperwork while in the service for two years." According to the Veteran, he was further instructed to do eye exercises to try to correct his eyes, but that when the exercises did not work, the eye doctor informed him that he needed glasses. The Veteran testified that the only type of eye disability for which he was currently being treated was refractive error. The Veteran testified at the April 2011 Board hearing that he had better than 20/20 vision when he entered service. He stated that as he was getting out of service, he was told that he needed eyeglasses and that he noticed vision problems soon after returning home. (See Board hearing transcript pages 4 and 5.) He further testified that he could not pass the eye examination upon separation from service. (See Board hearing transcript page 7.) He testified that he was told that by Dr. H. that the decrease in his visual acuity was not inevitable due to generic reasons, and that it was due to close paper work in service which caused a lazy eye. (See Board hearing transcript page 10.) The Veteran contends that he has worn glasses since shortly after separation from service. The Board acknowledges that the Veteran is generally competent to report what he has been told by a medical professional, and also that he may sincerely believe that he was told that he had a lazy eye in service; however, as the Court has previously noted, "the connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." Robinette v. Brown, 8 Vet. App. 69, 77 (1995). The Board finds that the Veteran's version of what he was allegedly told by a clinician is less probative than the clinical opinions of record, as discussed below. The Veteran underwent a VA examination in December 2011. The examiner stated that the Veteran does not have a lazy eye. The examiner stated that the Veteran has a refractive error, which is myopia or near-sightedness. (See December 2011 examination report and January 2012 addendum.) The claims file also includes an October 2012 VHA opinion. The clinician considered the contentions of the Veteran that his eye disabilities were caused by paperwork in service. The clinician stated that "presbyopia and cataracts can be helped by glasses but would not be caused by near work." He also noted that myopia, presbyopia and cataracts are "very common diagnos[e]s that can present in life naturally; as presbyopia and cataracts always do to some degree." The clinician also disagreed with the Veteran's statement that the Veteran had nearsightedness due to lazy eye. He opined that nearsightedness due to lazy eye is not possible. He further noted as follows: [o]ne is born with the propensity for lazy eye and nothing done in the military or adulthood should make it worse. It is a condition that is treated in children to prevent it. In summary and to restate based on the information given to me: 1. The Veteran's history is not credible per information in the [Board's VHA request letter]. 2. The history given does not fit his exam data, and his claims could not be affected by his service described in the military. 3. Any lazy eye would not fit any of his military experiences. 4. None of the history and exam fits his case, and it should not at all be considered having any connection whatsoever to his claims in my professional opinion as an Ophthalmologist, M.D. Finally, he noted that "[a]mblyopia, or "lazy eye," is the loss of one's ability to see details. It is a common cause of vision problems in children. A lazy eye as an adult could not be aggrevated [sic] by a refractive error because the problem already happened as a child which it certainly did not by his 20/20 vision. . . . Bilateral eye nearsightedness would not be result of a lazy eye that was not treated." The Board finds, based on the evidence of record that service connection is not warranted for any eye disability. Service connection is not warranted for lazy eye, as the clinical evidence does not reflect that the Veteran currently has a lazy eye. (In addition, the STRs are negative for a lazy eye in service.) As a service connection claim requires, at a minimum, medical evidence of a current disability, the Veteran's claim for service connection for a lazy eye is not warranted in this case. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997). Service connection is not warranted for myopia, presbyopia, or astigmatism because they are all refractive errors. Service connection is not warranted for dry eye because there is no clinical evidence of record that the Veteran had dry eye in service. In addition, the Veteran has not specifically averred that he had symptoms of dry eyes in service. He has stated that he had vision problems in service. (See Board hearing transcript). He testified at the DRO hearing that he was never treated for any actual chronic condition during military service. In addition, there is no evidence of record that the Veteran's current dry eye condition is causally related to active service. The earliest clinical evidence of dry eye is in March 2006, more than 30 years after separation from service. A March 1996 clinical record reflects tearing of the eyes, and is negative for any mention of dry eye. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Service connection is not warranted for cataracts because there is no clinical evidence of record that the Veteran had cataracts in service. In addition, the earliest clinical evidence of cataracts is more than three decades after separation from service. A May 1996 eye examination record is negative for cataracts and notes that the cornea was clear and that there was no abnormality with regard to the lens. A June 2007 record reflects "small" cataracts and an October 2009 record reflects "very early cataracts." See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds that any statement by the Veteran that he had cataracts in service is less than credible when considered with the record as a whole. In addition, the clinical evidence of record is against a finding that the Veteran's service would have caused his cataracts. Service connection is not warranted for atopic dermatitis of the eye because there is no clinical evidence of record that the Veteran had atopic dermatitis in service. His report of medical examination for separation purposes reflected normal eyes and skin, with the exception of a tattoo on the right arm. In addition, the earliest clinical evidence of atopic dermatitis is not until several decades after separation from service. A May 1996 clinical record reflects tearing, redness and rash with allergies. The report is negative for any mention of atopic dermatitis since service, and notes that Visocidin was prescribed. A May message record which appears to be from 1996 or 1997 reflects that Visocidin was not working and it was requested that the clinician prescribe something else. The Board notes that Visocidin is used to treat bacterial infections. The 1996 and 1997 records are negative for any findings of atopic dermatitis. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds that any statement by the Veteran that he had atopic dermatitis since service is less than credible when considered with the record as a whole. The Veteran has not been shown to have the medical training or experience to render a competent clinical opinion in this case. Although the Veteran, as a lay person, is competent to state that he has had dry eyes, skin problems, less than clear vision, and/or vision acuity problems, he has not been shown to be competent to causally relate his problems to his reading of paperwork in service, or some other incident in service, as opposed to natural aging, a refractive error, or some other etiology factor. The Board finds that such etiology determinations are outside of the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Importantly, the clinical opinion of record is by an ophthalmologist, who is trained in anatomy, physiology and diseases of the eye. Thus, the Veteran's opinion is less probative than that of the clinician. In sum, there has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has a current eye disability causally related to active service. Based on the evidence of record, the Board finds that service connection for bilateral eye disability is not warranted. The Board has considered the benefit of the doubt rule, but finds that it is, therefore, not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral eye disability is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs