Citation Nr: 1310067 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 06-25 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for disability exhibited by loss of vision. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from January 1960 to December 1964 and September 1965 to October 1967. He had subsequent service in the Reserves from September 1973 to February 1995, including periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2010, the Board remanded the case for further development, to include scheduling a VA examination. As noted at that time, the Veteran failed to report for two scheduled Board hearings in 2007. His subsequent request in 2009 to reschedule the hearing was not timely, and the hearing request was considered withdrawn. See 38 C.F.R. § 20.702 (2012). In September 2012, the Board remanded the case for further development so that an addendum to the March 2012 VA opinion could be obtained. There has been substantial compliance with the August 2010 and September 2012 Remand Orders. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran does not have a vision disability that is etiologically related to service. CONCLUSION OF LAW A vision disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Under the Veterans Claims Assistance Act (VCAA) of 2000, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Court's decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Here, a pre-adjudication November 2004 letter complied with VA's duty to notify the Veteran with regards to the service connection addressed herein. Specifically, this letter apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. As will be discussed below, the Board has determined that service connection is not warranted for the claimed vision disability. Thus, any question as to the appropriate disability rating and effective date is moot, and there can be no failure to notify prejudice to the Veteran. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also finds that VA has complied with its duty to assist the Veteran in the development of the claim decided herein, to include substantial compliance with the August 2010 and September 2012 Remands. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence of record contains the Veteran's service treatment records (STRs) and personnel records. He has not identified any private or VA treatment records, or authorized VA to obtain any other pertinent treatment records. There is also no indication that he receives any benefits from the Social Security Administration (SSA) pertaining to the claimed disability. The Board notes that the RO has made repeated but unsuccessful efforts to obtain STRs from the Veteran's Reserve service. Shortly after he filed his claim for service connection, the RO requested the Reserve STRs from the Records Management Center (RMC). In November 2004, the RMC responded that there were no STRs on file. That same month, the RO sent an MO4 request to the National Personnel Records Center (NPRC)'s Personnel Information Exchange System (PIES), but only STRs for the Veteran's active duty periods were obtained. In August 2010, the RO made an additional attempt to obtain the Reserve STRs. The October 2010 response merely confirmed the Veteran's Reserve service. Subsequently, the Veteran submitted photocopies of the Reserve STRs. Thus, the Board's proceeding with this case will not prejudice the Veteran. The Veteran underwent a VA examination in March 2012, with an addendum issued 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. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the March 2012 examination and October 2012 opinion, when viewed together, are adequate. The examiner considered the pertinent evidence of record, to include statements regarding the December 1983 incident that allegedly led to the development of the Veteran's eye disabilities, fully examined the Veteran, thoroughly reviewed of the claims file, and answered the questions posed by the AOJ. Although the Veteran's representative maintains that the Veteran underwent an additional VA examination in January 2013 (see March 2013 Brief), a careful review of the claims file shows that the document referred to by the representative is merely a photocopy of the March 2012 examination and October 2012 addendum. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim on appeal has been met. See 38 C.F.R. § 3.159(c)(4). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue on appeal. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for any condition listed in 38 C.F.R. § 3.303(b). Any condition not encompassed by Section 3.303 (b) requires a medical nexus. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran claims that disability exhibited by loss of vision is related to a left eye injury that occurred in December 1983 while "drilling." See February 2006 Notice of Disagreement. He contends that he had a decrease in vision after this injury, requiring him to wear glasses, and that he now needs glasses all the time. The Veteran's representative points out that there is some indication of decreased visual acuity in the left eye after 1983, as shown by vision testing during periodic examinations while in the Reserve. See July 2010 and July 2012 Briefs. A review of personnel records indicates that the Veteran had 14 days of drill duty, or INACDUTRA, but no ACDUTRA, from October 1983 through December 1983. This would be consistent with the Veteran's report. Service connection may be granted if a disability is due to injury sustained during a period of INACDUTRA. 38 C.F.R. § 3.6. STRs from the Veteran's active duty service show that he had defective vision at his January 1960 examination, which was not considered disabling. Near vision was measured at 20/30 and corrected to 20/20. Thereafter, in October 1963, he was treated for foreign body in the right eye, which was removed. It was noted at that time that the Veteran had had nystagmus since childhood. A March 1964 treatment record shows that the Veteran was referred to the ophthalmology clinic for constant searching type horizontal nystagmus with "marked aggravation by version to the right." The referring doctor noted that the Veteran's vision "largely seems to be due to the effect of the nystagmus." The December 1964 discharge examination contains a diagnosis of constant horizontal nystagmus, congenital, which was not considered disabling. At that time, he denied any eye trouble. The August 1965 reenlistment examination shows that the Veteran had bilateral lateral gaze nystagmus, which was considered disabling. He again denied any eye trouble. In May 1965, an ophthalmologist opined that the Veteran's nystagmus was indeed congenital. He stated that there was no treatment, and noted that the Veteran had very good vision and did not need glasses. (Emphasis in original). A September 1967 separation examination shows that the Veteran denied a history of eye trouble. STRs from the Veteran's Reserve include an October 1983 annual examination. The Veteran's distant vision was 20/20 in both eyes. Near visual acuity was 20/30 in the right eye and 20/70 in the left eye, corrected to 20/20 and 20/25. In December 1983, the Veteran received emergency treatment after he was hit in the left eye by a finger. He had 20/20 vision in the right eye and 20/40 vision in the left eye. Superficial lacerations and subconjunctival hemorrhages were noted, but no detachment and a clear (normal) lens. The following day he was seen in the eye clinic for decrease of visual acuity. Visual acuity in the left eye was 20/20 and 20/40-1. Nystagmus was noted on occlusion. The assessment was mild iritis and topical infection, and the Veteran was advised to return to the clinic if his vision changed dramatically. In December 1984, he was noted to have 20/25 distant near vision bilaterally. Near visual acuity was 20/25 in the right eye and 20/50 in the left eye. It was noted that defective visual acuity not corrected by lens. Thereafter, near vision in the right eye was generally measured at 20/20, and vision in the left eye ranged from 20/20 to 20/70 or possibly 20/200 (the September 1993 report is somewhat illegible), corrected to 20/20 or 20/25. See, e.g., reports in December 1985, November 1986, November 1987, October 1988, October 1989, September 1991, September 1993. The Veteran was afforded a VA examination for the eyes in March 2012. The examiner reviewed the claims file, to include the December 1983 STRs. Distance visual acuity was 20/100 in the right eye and 20/200 in the left eye (uncorrected) and 20/40 in both eyes (corrected). Near visual acuity was 10/200 in both eyes (uncorrected) and 20/40 in both eyes (corrected). The examiner diagnosed history of contusion of the left eyeball, December 1983; congenital nystagmus that was probably present from birth; and cataracts with no date of onset that were noted to be age-related. The examiner opined that the Veteran's decrease in visual acuity was attributable to his mild cataracts. The March 2012 examiner provided an addendum opinion in October 2012. He opined that the Veteran's nystagmus "is almost surely congenital." He concluded that the nystagmus does not degrade the Veteran's vision and cannot be linked to the finger poke he sustained in December 1983. He explained that nystagmus "is virtually always related to a central nervous system origin or a vestibular problem, not trauma." With respect to the Veteran's cataracts, he opined that they had the characteristics of normal age-related cataracts and no characteristics of injury or trauma induced cataracts. The examiner indicated that he had reviewed the March 2012 examination, his notes concerning the claims file, and an "on-line review of nystagmus." Congenital or developmental defects and refractive error of the eye are not considered to be a disease or injury with the meaning of the statutes governing service connection. 38 C.F.R. §§ 3.03(c), 4.9. In-service incurrence of a disease or injury is not possible with respect to manifestations of a congenital or developmental defect, and as a result. Winn v. Brown, 8 Vet. App. 510 (1996) (upholding VA regulations that distinguish a congenital or developmental defect from a disease); Terry v. Principi, 340 F.3d 1378, 1384 (Fed. Cir. 2003) (upholding VA regulation that refractive errors of the eye are a congenital defect and thus do not constitute an injury or disease incurred in service). Although a congenital or developmental defect may not be considered a disease or injury incurred during service, service connection may nevertheless be available for a superimposed disability shown to have resulted from a congenital defect during service. VAOPGCPREC 82-90 (July 18, 1990). As discussed above, STRs show that the Veteran had defective vision during service. Prior to the December 1983 left eye injury, he generally had near vision ranging from 20/20 to 20/30 bilaterally, and he denied any eye trouble. After this injury, the Veteran continued to deny eye trouble in periodic examinations. The Veteran's nystagmus and defective vision have been characterized as congenital defect and refractive error, respectively. There is no competent and credible lay or medical evidence of any superimposed disease or injury during service with resultant disability. The Board acknowledges that the Veteran's representative maintains that "[t]he totality of the new evidence and the subsequent adjudication addresses only cause and not aggravation beyond the normal progression." It appears that the Veteran's representative contends that the October 2012 addendum is inadequate. As an initial matter, the Board notes that the representative has applied the wrong standard. The correct standard, as noted in the September 2012 Remand, is whether there was "a permanent increase in the severity of the condition beyond its natural progression" as a result of the Veteran's service. (Emphasis in original). Furthermore, the examiner opined that the Veteran's nystagmus does not degrade his vision. The Board finds that a common sense interpretation of this statement is that the nystagmus did not worsen during the Veteran's service. As to the Veteran's cataracts, this condition was not shown during service. The VA examiner opined that this condition is related to the Veteran's age. He reasoned that the cataracts are mild and have the characteristics of age-related cataracts. The opinion is found to be credible and persuasive. Thus, the most probative evidence establishes that the Veteran does not have a vision disability that began during service or is otherwise related to service. The Board acknowledges the Veteran's opinion concerning the etiology of his eye disabilities. However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the etiology of his current eye disabilities and his views are of no probative value. And, even if his opinion was entitled to be accorded some probative value, it is far outweighed by the March 2012 VA examiner who thoroughly reviewed the claims file, examined the Veteran, and concluded that his eye disabilities are not related to service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The preponderance of the evidence is against the service connection claim for a disability exhibited by loss of vision; there is no doubt to be resolved; and service connection is not warranted. Gilbert, 1 Vet. App. at 57-58. ORDER Entitlement to service connection for disability exhibited by loss of vision is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs