Citation Nr: 1308693 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 07-24 132A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a bilateral eye disorder, to include amblyopia. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on a period of active duty for training from May 1982 to July 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This case was previously remanded by the Board in January 2009, September 2009, and November 2011. The Veteran attended a hearing before the undersigned in January 2012. A transcript of this hearing is associated with the claims folder. In March 2012, the Board remanded the claim again for additional development and adjudicative action. The case has been returned to the Board for further appellate review. Previously, the RO treated the claim for service connection for an eye disorder as two separate claims: One for service connection for amblyopia and one for service connection for burning and teary eyes. In January 2009, the Board found that only the claim for service connection for amblyopia was before the Board. Since that time, the Court of Appeals for Veterans Claims issued the decision in Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009), which held that VA should construe a claim for service connection based on reasonable expectations of a non-expert claimant who has no special medical expertise. Given this decision, and given that the Veteran has repeatedly indicated that his claim involves burning, teariness, pus formation, and gray floaters in his eyes, the Board finds that the issue on appeal is best characterized as listed on the title page of this decision. FINDINGS OF FACT 1. The medical opinion evidence of record shows that the Veteran is diagnosed with chronic allergic conjunctivitis which had its onset during the Veteran's military service. 2. The medical opinion evidence of record shows that the Veteran's amblyopia is a congenital defect that did not undergo a superimposed injury during service. 3. An eye disorder other than chronic allergic conjunctivitis is not shown to be etiologically related to the Veteran's military service. CONCLUSIONS OF LAW 1. Chronic allergic conjunctivitis was incurred in active service. 38 U.S.C.A. §§ 101(24), 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.303 (2012). 2. A bilateral eye disorder other than allergic conjunctivitis, including amblyopia was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 101(24), 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist 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, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant 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, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant 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, the VA will attempt to obtain. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). Moreover, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (reaffirming that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In December 2005 and March 2006 letters, issued prior to the decisions on appeal, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate the claim as well as what information and evidence must be submitted by the Veteran and the types of evidence that will be obtained by VA. The March 2006 letter also advised the Veteran how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. The Board finds that VA's duty to notify has been met. The record also reflects that VA has made reasonable efforts to assist the Veteran in the development of his claims. Specifically, the information and evidence that have been associated with the claims file includes service treatment records and private treatment records. The Veteran was also afforded VA examinations in February 2009 and September 2010 (with addendum in April 2011) and May 2012. The Board finds that the 2010, 2011, and 2012 reports are adequate because the examiners reviewed the claims file, considered the contentions of the Veteran, and supported their medical conclusions with data and a rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process, identifying relevant records and providing testimony at the Board hearing. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. The Board finds that VA's duty to assist has been met. Pertinent Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by "active military, naval, or air service." 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). "Active military, naval, and air service" includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. 38 U.S.C.A. 101(24) (West 2002 & Supp 2012); 38 C.F.R. § 3.6 (2012). In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service Connection The Veteran contends that he has a current chronic bilateral eye disability manifested by defective eye sight and burning and teariness of the eyes that had its onset during his active service. Service treatment records show that on enlistment examination in August 1981, no bilateral eye disorder was identified. On May 6, 1982 (three days into his period of active duty for training), the Veteran was seen by the optometry section. Without glasses, his right eye was reported to be 20/400 and his left eye reported to be 20/200-1. The examiner circled "PERLA" in response to the examination of the pupils. External and internal examinations were "within normal limits." The Veteran's visual acuity was tested and was correctable to 20/25 in the right eye and 20/30 in the left eye. The examiner checked the box for a finding of amblyopia and wrote bilateral refraction next to it. No other references to the eyes are noted in service. The Veteran was discharged from service in July 1982. The Report of Separation and Record of Service notes a military occupational specialty of infantryman. At an August 2008 hearing, the Veteran testified that he first developed burning in his eyes during his period of service in 1982. (Transcript (T) 8) The Veteran denied having any burning in his eyes prior to May 1982. (T. 5) He described the symptoms as a burning sensation in both eyes, which he only experienced when he was on the shooting range. (T. 11-12) The Veteran testified that about two to three weeks after he completed his training in July 1982, he would wake up and his eyes were shut with pus, and he could not open them. (T. 15) He stated he had had problems with his eyes since that time. (T. 16) The Veteran noted that the left eye burned more than the right. (T. 17) The Veteran stated he had gone to see a doctor at that time and was given eye drops. (T. 18-19) A February 2009 VA examination report shows the Veteran reported burning or stinging and blurring of his vision when addressing his symptoms. The Veteran denied a history of trauma to his eyes (but in a January 2010 private medical record, he reported being hit by a racquet ball in 1991 in the left eye). The Veteran reported he had not worked for 10 to 20 years because he had been diagnosed with arthritis and had become unable to work. The examiner found the Veteran had presbyopia. Following physical examination, the examiner diagnosed amblyopia. The examiner provided the opinion that "[a]mblyopia was not caused by or a result of amblyopia." The rationale provided was that the Veteran had moderate refractive error and his visual acuity was correctable to 20/20 in both eyes. In the prior 2009 Remand, the Board noted that the February 2009 VA examination was inadequate because it failed to address the questions raised by the Board-specifically, whether the Veteran's amblyopia began during his service, and if not, was the Veteran's amblyopia a congenital defect or disease, and if his amblyopia was a disease, whether this disease was aggravated beyond its normal progression during his period of service. A January 2010 private medical record shows the Veteran was seen for complaints of irritated eyes with burning and itching. The examiner noted the Veteran had a one-year history of diabetes mellitus, which was controlled. The Veteran reported having occasional gray images in the center of his visual acuity for years. The examiner listed five assessments: (1) cataracts; (2) alternating exotropia; (3) allergic conjunctivitis; (4) [illegible]; and (5) diabetes mellitus retinopathy [illegible]. A September 2010 VA examination report and April 2011 addendum shows the Veteran was examined by the same optometrist from February 2009. The examiner indicated that there were no physical findings of chronic conjunctivitis. The examiner noted that the Veteran was diagnosed with amblyopia during service. The examiner referenced treatise material and explained that amblyopia was a developmental/congenital defect of spatial visual processing that occurred in the central visual pathways of the eye. The examiner noted that the Veteran had corrected visual acuity to 20/20-2 in both eyes. In the addendum, the examiner reiterated that amblyopia was a congenital defect and noted that the Veteran had corrected visual acuity to 20/20 in both eyes. A February 2011 private medical record shows that the Veteran was seen for a diabetic ocular evaluation. The examiner described the Veteran's chief complaints. When listing the past ocular history, the examiner wrote alternating exotropia-decompensation, cataracts in both eyes (OU), and diabetes mellitus without retinopathy OU. Following examination, the examiner entered impressions of diabetic: no retinopathy OU, active; allergic conjunctivitis OU, active; headaches in the morning for years; cataracts OU, active; dry eye OU, active; history of racquetball blunt trauma to left eye (OS) 1991, active; high astigmatism regular OU, active; ocular pain in the right eye (OD), including ethmoid pain with differential diagnosis including sinusitis, dry eye, allergic conjunctivitis, active; glaucoma suspect OU by cup-to-disc ratio, active; and visual symptoms of worm-like light in the right visual field of the OD, differential diagnosis including migraine, active. The examiner noted that the Veteran would follow up with his primary care physician for management of headaches and to rule out sinusitis. A June 2011 private medical record shows multiple complaints under "Chief Complaint." The Veteran complained of a transient grey disc in the center of his vision followed by a "shakey" feeling with onset six to seven years ago. He complained of flashes in his eyes with no change in frequency over several years. The examiner noted that it was difficult to obtain a consistent qualitative and quantitative history from the Veteran. The examiner indicated that the Veteran had corrected visual acuity of 20/20- bilaterally. Following this examination, the examiner (same examiner as in February 2011) entered impressions of diabetic: no retinopathy OU, active; headaches in the morning for years; cataracts OU; dry eye OU; history of racquetball blunt trauma to OS 1991; high astigmatism regular OU; ocular pain OD, including ethmoid pain with differential diagnosis including sinusitis, dry eye, and allergic conjunctivitis; glaucoma suspect OU by cup-to-disc ratio; and longstanding history of transient visual symptoms of worm-like light in the right visual field of OU, grey central disc, both 1 and 2 followed by 5 minute symptoms of shaky feeling with differential diagnosis including migraine and transient ischemic attack. The examiner noted that the Veteran would follow up with his primary care physician for management of the headaches and to rule out migraine or other neurologic etiology for his transient bilateral visual symptoms. At a January 2012 hearing, the Veteran testified that when he went on the rifle range during his period of active duty, his eyes burned and would get watery. (T. 4) The Veteran stated he was unable to qualify for the weapon because of his eye symptoms. (T. 5) He stated he sought treatment about one month after discharge in July 1982 and was told that it may be an allergy to wool (he was exposed to wool where he worked); however, he noted that he had worked at the same place prior to service during which time he had no problems with the wool. (T. 6) He stated he was given eye drops to melt the pus in his eyes, but that his eyes still burned. (T. 6-7) The Veteran testified he was supposed to use eye drops every day. (T. 7) Having received an adequate opinion on the amblyopia issue, in the March 2012 Remand, the Board asked that the examiner provide an opinion on whether the Veteran's complaints of burning, teariness, pus formation, and gray floaters had its onset during service. The Veteran underwent a VA examination in May 2012. The examiner noted that the Veteran reported that during basic training, his eyes would water while on the shooting range, which occurred only while on the rifle range. The Veteran described that the condition had progressively worsened. The examiner provided a diagnosis of chronic allergic conjunctivitis. The physical examination revealed uncorrected visual acuity of 20/100 (distance) bilaterally and "20/40 or better" (near) bilaterally and corrected visual acuity of "20/40 or better" bilaterally. This examiner concluded that the diagnosis of amblyopia in service was an error as the current exam did not reveal amblyopia with corrected visual acuities of 20/20 in both eyes. He noted that the Veteran reported he was recently diagnosed with rheumatoid arthritis, but that there was no evidence of rheumatoid arthritis in the service treatment records. The examiner diagnosed the Veteran with chronic allergic conjunctivitis and found that this disorder was more likely than not incurred during the Veteran's period of service. The examiner indicated that the most likely diagnosis for the Veteran's initial episode was allergic conjunctivitis. The examiner, however, noted that it was difficult to determine if dry eye syndrome was present at that time. He added that the Veteran had been diagnosed with rheumatoid arthritis, which "can be directly related to chronic dry eyes." He attributed the Veteran's claim of gray floaters to an age-related condition versus pathological etiology as related to rheumatoid arthritis or allergic conjunctivitis. In regard to allergic conjunctivitis, the 2012 VA examiner opined that the Veteran had chronic allergic conjunctivitis that most likely had its initial onset during the Veteran's period of active duty for training. The opinion rendered was based on a review of the Veteran's claims file and consideration of the Veteran's credible lay statements concerning the onset of symptoms and symptoms experienced since service. There is no competent medical evidence to the contrary. Accordingly, the Board finds that service connection for chronic allergic conjunctivitis is warranted. In regard to amblyopia, the medical opinion evidence indicates that this disorder is a congenital defect. Congenital or developmental defects may not be service- connected because they are not diseases or injuries under the law. 38 C.F.R. § 3.303(c) (2012); VAOPGCPREC 82-90. Such defects, however, can be subject to superimposed disease or injury. VAOPGCPREC 82-90. If, during an individual's military service, superimposed disease or injury does occur, service-connection may indeed be warranted for the resultant disability. Id. Here, the service treatment records do not show that the Veteran suffered a superimposed disease or injury to the amblyopia during service much less a resultant disability. Indeed, in the opinion of the 2012 VA examiner, the in-service diagnosis of amblyopia was erroneous because this disorder was not shown on the current exam. This observation is actually consistent with the private treatment records which similarly do not indicate a current diagnosis of amblyopia. For these reasons, the Board finds that service connection for amblyopia is not warranted. In regard to dry eye syndrome, the 2012 VA examiner indicated that it was too difficult to determine whether this syndrome was present during the Veteran's service given the Veteran's diagnosed rheumatoid arthritis. Thus, the VA examiner essentially could not render a medical opinion without resorting to speculation. A medical opinion based on pure speculation is not to the required medical degree of certainty upon which a grant of service connection may be based. VA law provides that service connection may not be established for a disability based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102 (2012); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (providing that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (noting that a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). The Board finds that the VA examiner has rendered a "legitimate inconclusive opinion" and VA does not have to demand a conclusive opinion from the examiner. Jones v. Shinseki, 23 Vet. App. 382, 391 (2010) ("While VA has a duty to assist the Veteran by providing a medical examination in certain situations, that duty does not extend to requiring a VA physician to render an opinion beyond what may reasonably be concluded from the procurable medical evidence."). As there is no competent evidence that indicates that it is likely that the Veteran's dry eye syndrome is linked to service, service connection for this disorder is not warranted. Service connection for gray floaters is similarly not warranted as the 2012 VA examiner linked the disorder to a post-service event (aging). The Board is cognizant that the medical evidence shows other diagnosed eye disorders; however, the Veteran is not seeking service connection for these disorders and the record does not otherwise suggest that these disorders are related to his service. As recognized in Clemons v. Shinseki, where the claimant's claim identifies a disability without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any disability that may reasonably be encompassed by the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. 23 Vet. App. 1, 5 (2009). The claimant does not file a claim to receive benefits only for a particular diagnosis, but for the affliction his condition, whatever that is, causes him. Id. Here, the affliction the Veteran complains of is amblyopia and the symptoms the Veteran describes are burning and teariness of the eyes all of which are addressed by the disorders the Board considered for service connection addressed above. In so finding, the Board notes that the Veteran is competent to describe readily observable features or symptoms of illness such as burning and teariness of the eyes, and he is credible in regard to his report on symptoms he has experienced throughout the years. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). He, however, is not competent to diagnose his eye disorders and relate them to service, as he does not have the requisite clinical expertise. Rather, the competent and credible medical opinion evidence outweighs the lay evidence which shows only that the chronic allergic conjunctivitis is likely etiologically related to service. ORDER Service connection for chronic allergic conjunctivitis is granted. Service connection for a bilateral eye disorder other than chronic allergic conjunctivitis, including amblyopia is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs