Citation Nr: 1306771 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 09-04 451 ) 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 disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from January 1944 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for a bilateral eye disorder. 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). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in June 2011. A transcript of this hearing has been associated with the Veteran's VA claims folder. This case was previously before the Board in August 2011 and June 2012, at which time it was remanded for further development. FINDINGS OF FACT The preponderance of the competent medical and other evidence of record is against a finding that the Veteran developed an acquired eye disorder as a result of his active service. CONCLUSION OF LAW The criteria for a grant of service connection for a bilateral eye disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) has indicated that VCAA notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was sent VCAA-compliant notification via a letter dated in May 2007, which is clearly prior to the August 2007 rating decision that is the subject of this appeal. He was also sent additional VCAA notification via letters dated in August 2011 and June 2012, with readjudication of the appellate claim via Supplemental Statements of the Case (SSOCs) in April and December 2012. These letters informed the Veteran of what was necessary to substantiate his current appellate claim, what information and evidence he must submit, what information and evidence will be obtained by VA, the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case, as well as the information used by VA to determine disability ratings and effective dates if service connection is granted. In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate this appellate claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the June 2011 Board hearing. Nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not identified outstanding evidence showing he has an acquired eye disorder that developed as a result of his active service. The Board also notes that actions requested in the prior remand have been undertaken. In pertinent part, the Board remanded the case in August 2011 for the Veteran to undergo a VA medical examination to address the nature and etiology of the claimed bilateral eye disorder, which was accomplished in October 2011. However, in June 2012, the Board concluded that the October 2011 VA examination did not fully address whether the Veteran's documented decreased visual acuity during service was etiologically related in any way to any of the Veteran's current eye disorders, and remanded the case for clarification from the VA examiner. This deficiency was subsequently corrected by a July 2012 supplementary opinion/addendum from the October 2011 VA examiner. As detailed below, the Board finds that the October 2011 VA examination with the July 2012 supplementary opinion is adequate for resolution of this case. All other development directed by the Board's prior remands appears to have been substantially accomplished. Accordingly, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand 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 also notes that the Veteran was accorded a VA medical examination in October 2011, with a July 2012 supplementary opinion, which included findings as to the nature and etiology of his current eye problems. As these opinions were based upon both a medical evaluation of the Veteran, and an accurate understanding of his medical history based upon review of his VA claims folder, the Board finds they are supported by an adequate foundation. No competent medical evidence is of record which specifically refutes the findings of the VA examiner, and the Veteran has not otherwise identified any prejudice therein. Accordingly, the Board finds that this examination is adequate for resolution of this case. With respect to the aforementioned June 2011 hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ accurately noted the current appellate claim, and asked questions to clarify the Veteran's contentions and medical history. Moreover, the Veteran, through his testimony and other statements of record, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the June 2011 hearing. As such, the Board finds that no further action pursuant to Bryant is necessary. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. Analysis The Board notes that it has thoroughly reviewed the record in conjunction with this case. 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 submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Veteran essentially contends that he has a bilateral eye disorder incurred during military service, explaining that he injured his left eye, in particular, watching the sun without sunglasses in the Arizona desert to tell time during military service. He reported that he customarily worked alone and did not wear a watch; hence, he frequently looked at the sun to study its position in the sky in order to determine the time of day (sungazing). At his hearing and at an October 2011 VA examination, he recalled that in doing so, he covered his right eye and used his left eye to look at the sun. The Veteran alleges that this practice resulted in damage to his eyes that was manifested by loss of vision during service which rendered him unable to see down the sight of a rifle or to perform various visual occupational tasks. He did not report his perceived decrease in vision because he did not want to wash out of the air cadet system, and he continued to experience increasing vision and eye problems following separation from military service. The Board acknowledges that the Veteran, as a lay person, is competent to describe vision problems. He is also competent to report looking into the sun while on active duty. However, as a general rule, vision loss - a refractive error of the eye - is one of the specific conditions that VA does not grant service connection for, as it is not considered a disability for VA purposes. See 38 C.F.R. §§ 3.303(c), 4.9. Such a condition is part of a life-long defect, and is normally a static condition which is incapable of improvement or deterioration. See VAOGCPREC 67-90 (1990). Therefore, the resolution of this case depends upon whether the Veteran developed an acquired eye disorder as a result of his active service as opposed to the type of condition (refractive error) which is not considered a disability for VA purposes. Consequently, competent medical evidence is required to determine whether the Veteran has such a disability, and, if so, whether it is etiologically linked to his active service. The Board notes that the Veteran's service treatment records do reflect that he had a decrease in visual acuity during his period of active service. In pertinent part, on his November 1943 induction examination, there were no eye abnormalities, and uncorrected vision was reported as 20/20 in each eye. An aircrew trainee applicant examination report dated in February 1944 included a more detailed eye examination; visual acuity remained 20/20 in each eye, and no eye abnormalities were noted. On his November 1945 separation examination, uncorrected vision was reported as 20/20 in the right eye and 20/40 in the left eye, corrected to 20/30. However, on examination of the eyes, there were no abnormalities. The Board further notes that the Veteran's post-service medical records detail treatment for his eyes over a period of years. For example, in a post-service private treatment record from C. R., M.D., dated in October 1987, the Veteran complained of blind spots and indicated that he was followed by another physician for glaucoma. In a December 1992 examination report, the impression included left cataract, and in November 1993 objective findings of the eyes were reported as bilateral cataracts right greater than left. In a private consultation report from J. L., M.D., dated in January 2002, the Veteran indicated that he had glaucoma and now developed cataracts. He was planning sequential cataract extractions and other procedures. Subsequently, he had cataract extraction of each eye. A February 2002 operative report detailed his clinical history, which included painless progressive loss of vision of both eyes with cataracts and glaucoma. He had been on medication to control glaucoma for at least 25 to 30 years. The impression included glaucoma with blind spots and cataracts, and he was advised of the risk of possible loss of vision with the surgery. In a private treatment record from M. S., M.D., dated in December 2007, the diagnosis was small macular hole left eye. Dr. M. S. addressed an examination report to Dr. J. L. the same day, indicating that the Veteran had complained of decreasing visual acuity over the past year, more rapidly over the past several months. He described the ocular findings and could see no findings to explain his severe vision loss bilaterally. Differential diagnoses included glaucoma, Fuchs disease, refractive, or perhaps neurologic. In a letter addressed to the Veteran in October 2009, a private physician C. F., M.D., summarized their meeting at the clinic, including the Veteran's reported history of protracted sun gazing, which he performed with his left eye, in an attempt to accurately gauge and mark time during military service. He described his left eye vision loss as gradual, occurring over a period of four to six weeks. Dr. C. F. discussed congenital disorders, such as hereditary optic neuropathies that can lead to gradual visual decline over a matter of weeks; however, the Veteran's right eye was not similarly affected, and the referenced disorders typically affect both eyes according to Dr. C. F. He concluded that it was certainly plausible that the gradual left eye vision loss was consistent with old retinal phototoxicity; he added that perhaps the Veteran had damaged his retinal tissue as a result of sun exposure. He added that while it was certainly hard to reconstruct the past, especially a past that is now more than 65 years in arrears, his macular findings today would certainly be consistent with this history. During the October 2011 VA examination, the Veteran re-alleged that, during service, he was unable to see down the sight of a rifle or perform occupational visual tasks due to visual impairment. Upon clinical examination, claims file review, and history obtained from the Veteran, the VA examiner provided multiple diagnoses related to both eyes, which include cataracts and asthenopia. With respect to the right eye, the VA examiner diagnosed primary open angle glaucoma with initial diagnosis in 1978; chronic cystoids macular edema and pupil corrrectopia, secondary to cataracts; visual field constriction, secondary to glaucoma; and blepharitis diagnosed in 2006. Concerning the left eye, the VA examiner diagnosed ocular hypertension that was initially diagnosed in 1978. Concerning etiology of the diagnosed disorders, the VA examiner concluded, "I do not find 50 percent probability or greater that any current eye disorder is related to active military service, including gazing at the sun to gauge time." In this regard, the examiner noted that he did not observe any macular holes in either eye and did not observe that the Veteran was using eccentric fixation. The examiner also noted that, despite the Veteran's contention that he covered his right eye and used his left eye to sun gaze, the contour of the left macula is normal and that with correction visual acuity in that eye was 20/25+2 for distance and 20/20 for near vision. The examiner notes that, ironically, the right eye has fared worse than the left eye, as it has suffered both loss of acuity and field of view due to glaucoma, complicated cataract surgery and resulting anterior chamber intraocular lens and chronic cystoids macular edema. As already noted, the Board found in June 2012 that even though the VA examiner clearly concluded that the Veteran's current eye disorders were not at least as likely as not related to his practice of sungazing during service, it remained unclear from the VA examiner's opinion as to whether the Veteran's documented decreased visual acuity during service is etiologically related in any way to any of the Veteran's current eye disorders, to include current loss of visual acuity in both eyes. In this regard, the examiner did not mention in his discussion the Veteran's in-service loss of visual acuity, nor did he provide an opinion as to whether the Veteran's various eye disorders, to include current loss of visual acuity, may be related to the Veteran's loss of visual acuity during service. Therefore, the Board remanded the case for clarification from the October 2011 VA examiner regarding this matter. As part of the July 2012 VA supplemental opinion, the examiner noted the clarification requested by the Board, that the Veteran reported he developed a macular hole while on active duty, he never reported it to anyone at that time, and that he developed loss of acuity in the left eye and asthenopia due to the macular hole. However, the examiner stated that the diagnosis of a macular hole of the left eye is not supported by his review of the prior eye examinations. The examiner then listed the results of 25 eye examinations over a period from December 2001 to October 2011. In pertinent part, as noted by the examiner, many of these examinations documented left eye acuity of 20/25 or better along with normal appearing macula. The examiner stated that if a macular hole existed in the left eye in 1945, it should be evidence on all subsequent examinations and imagining by optical coherence tomography. Therefore, the examiner opined it was not at least as likely as not that the Veteran's current eye disorders, to include loss of visual acuity, were etiologically related to the Veteran's loss of visual acuity recorded during service. In short, the October 2009 private medical statement from Dr. C. F. contains an opinion indicating it was possible the Veteran had current eye disorders as a result of his account of looking into the sun while on active duty, while the October 2011 VA examiner has expressed opinions against any such etiological relationship. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the record reflects that both Dr. C. F. and the October 2011 VA examiner were aware of the Veteran's contentions regarding his present claim of service connection for an eye disorder, as well as the current nature of his eyes based upon an examination thereof. Nevertheless, it is not clear from Dr. C. F.'s statement to what extent, if any, he was aware of the documented in-service findings regarding the Veteran's eyes as noted in his service treatment records or the documented findings in the post-service medical records on file. The VA examiner was aware of these documented findings from his review of the VA claims file. The Board also notes that Dr. C. F.'s opinion is expressed in language that appears equivocal and speculative. Specifically, Dr. C. F. concluded that it was "certainly plausible" that the gradual left eye vision loss was consistent with old retinal phototoxicity, and "perhaps" the Veteran had damaged his retinal tissue as a result of sun exposure. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding that a doctor's statement that a veteran's brain tumor "may well be" connected to Agent Orange exposure was speculative); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term "could," without other rationale or supporting data, is speculative). However, Dr. C. F. also acknowledged it was certainly hard to reconstruct the past, especially a past that is now more than 65 years in arrears. No such equivocal or speculative language is present in either the October 2011 VA examination report, or the July 2012 supplementary opinion. The Board further notes that the October 2011 VA examiner's opinion is supported by stated rationale which includes references to documented findings regarding the Veteran's eyes both in- and post-service. In a statement dated in January 2013, the Veteran indicated that the eye examination results noted by the October 2011 VA examiner were affected by the way in which he looked at the eye chart. He also indicated that because eye examiners rarely have time to discuss a patient's behavior when looking at an eye chart, that is the reason why his eye problems were not identified until a few years ago. Further, he reiterated the evidence of record which indicated that his eye problems were the result of looking into the sun. However, the Veteran did not provide any competent medical or other evidence in support of his contention that the manner in which he looked at the eye chart affected the results. Moreover, the October 2011 VA examiner also based his opinions on his own examination of the Veteran, which he indicated were consistent with the other evidence of record. Inasmuch as the purpose of the VA examination was to resolve this case, it would seem illogical for the Veteran to participate in a manner in which he now contends does not clearly demonstrate the current nature of his eye disorders. Consequently, the Board does not find that the contentions expressed in the Veteran's January 2013 statement calls into question the probative value of the October 2011 VA examiner's opinions to include the July 2012 supplementary opinion. While the Veteran believes that his current eye disabilities are related to his military service, to include sun gazing, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, while the Veteran is competent to state that he perceived having decreased vision during service, he is not competent to opine as to the diagnosis of his eye disorder or the etiology thereof, as such matters require medical testing and medical expertise to determine. Moreover, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current eye problems is a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's opinion regarding the etiology of his current eye disorders is significantly less probative than the opinion of the VA examiner. In view of the foregoing, the Board finds that the October 2011 VA examiner's opinions regarding the nature of the Veteran's current eye disorders and whether such disorders are related to service are entitled to more weight than the opinions expressed by Dr. C. F., as well as that of the Veteran. Therefore, the Board finds that the preponderance of the competent evidence of record is against a finding that the Veteran developed an acquired eye disorder as a result of his active service. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal must be denied. ORDER Service connection for a bilateral eye disorder is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs