Citation Nr: 1313569 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 08-24 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a bilateral eye disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1955 to January 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Huntington, West Virginia Department of Veterans Affairs (VA) Regional Office (RO). In June 2011, a hearing was held before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is associated with the Veteran's claims file. In August 2011, this matter and that of service connection for a left knee disability and entitlement to compensation under 38 U.S.C.A. § 1151 for additional low back disability claimed to be due to VA treatment received on July 2, 1980 (matters which were on remand from the United States Court of Appeals for Veterans Claims (Court)) were remanded for additional development. In October 2012, the Board denied the left knee and § 1151 claims and remanded the matter of service connection for a bilateral eye disability for additional development. 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). FINDINGS OF FACT 1. The Veteran's myopia, astigmatism, and presbyopia, of themeselves, are refractive errors that are congenital and developmental in nature; other (superimposed) disability of the eyes is not shown. 2. Bilateral age related macular degeneration (ARMD), cataracts, vitreous degeneration/floaters, and peripheral pigmentary degeneration (PPD) were not manifested in service and a preponderance of the evidence is against a finding that such eye disabilities are related to the Veteran's service. CONCLUSION OF LAW Service connection for a bilateral eye disability is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.303, 4.9 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A June 2009 letter, prior to the rating decision later that month, explained the evidence necessary to substantiate the claim of service connection for a bilateral eye disability, and also explained the evidence VA was responsible for providing and the evidence the Veteran was responsible for providing, and informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) are associated with his claims file and pertinent postservice treatment records have been secured. He was afforded a VA eye examination in December 2012. The Board finds that the examination is adequate for rating purposes, as the examiner was familiar with the history of the Veteran's bilateral eye disabilities, conducted a thorough examination noting all necessary findings, and reviewed the relevant medical literature. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The RO's actions have substantially complied with the August 2011 and October 2012 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The August 2011 Board remand instructed the RO to secure from Social Security Administration (SSA) copies of the records relating to the Veteran's claim for SSA disability benefits. In September 2011, SSA advised VA that the Veteran's medical records had been destroyed, and are unavailable. In January 2012, the RO advised the Veteran that VA was unable to obtain his records from SSA because they had been destroyed; he was asked to submit any records in his possession. He did not respond. In an August 2012 statement, the Veteran indicated that he did not have any more information or evidence to submit. An August 2013 statement from the Veteran's representative also stated that they had no additional evidence. The Veteran has not identified any pertinent evidence that remains outstanding. Accordingly, the Board finds that VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Refractive error is a congenital or developmental abnormality that is not a disease or injury within the meaning of applicable regulation [i.e., not a compensable disability]. 38 C.F.R. §§ 3.303(c), 4.9. However, service connection may be granted for disability due to aggravation of a congenital abnormality from superimposed disease or injury in service. See Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). VA's General Counsel has held that service connection may be granted for diseases of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. The VA General Counsel also has held that a congenital defect can be subject to superimposed disease or injury, and if superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990). See also 38 C.F.R. § 3.303(c). In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9; VA Manual M21-1MR, Part III, Subpart iv, Chapter 4, Section B. 10d.) The Veteran contends that he did not have any problems with his eyes prior to service; however, after spending a lot of time on the firing range for pistol and rifle matches in service, he started having a lot of bad headaches. He sought treatment in service and was advised that he had an astigmatism in both eyes; eyeglasses were prescribed. The Veteran asserts that he has had continuous problems with his eyes ever since service, and now suffers from a chronic, service-related bilateral eye disability. See June 2011 DRO hearing transcript. The Veteran's STRs show that in May 1972, he was seen for headaches, aching eyes, and discomfort in bright lights; myopic astigmatism was diagnosed. On June 1974 service separation physical examination, it was also noted that the Veteran had been wearing reading glasses since 1971, and that his present prescription was adequate. May 2009 private treatment records from Bluefield Eye Clinic show findings of cataracts and senile macular degeneration. On September 2010 comprehensive VA eye examination, the Veteran reported a history of AMD (Age-Related Macular Degeneration) and astigmatism. He also reported that his vision had gradually become worse over the past year and he had noticed a major change in his left eye about 3 to 4 months previously. The assessment was moderate dry eye AMD OD (right eye) and wet AMD OS (left eye), mild cataract OU (each eye), vitreous degeneration OU, peripheral retinal degeneration OU, HTN (hypertension) - mild retinopathy OU, and refractive error OU. 2010 to 2012 VA ophthalmology treatment records show the Veteran underwent treatment for AMD. In a June 2011 statement (responding to a question posed during the DRO hearing), the Veteran recalled that, after his eye condition was found and he received glasses, he could still qualify with required weapons annually as long as he wore his glasses; however, he had to quit shooting in marksmanship competitions. On December 2012 VA examination, an optometrist reviewed the Veteran's claims file and noted that he originally had age related macular degeneration and early cataracts diagnosed in 2009. It was further noted that in approximately 2010, he became aware of rapidly decreasing vision in the left eye, was referred to a retina specialist, and had received approximately 6-7 retinal injections in the left eye and approximately two injections in the right eye (macular degenerative changes in the right eye are moderate and in the left eye are severe). 2010 treatment records also show diagnoses of vitreous degeneration (floaters) and peripheral pigmentary degeneration (these conditions do not affect visual acuity, and no treatment is indicated.) The December 2012 examination report lists the Veteran's current bilateral eye disabilities as age related macular degeneration (ARMD), cataracts, vitreous degeneration/floaters, peripheral pigmentary degeneration (PPD), and refractive error consisting of myopia, astigmatism, and presbyopia. The examiner noted that the first 4 of the diagnosed bilateral eye disabilities (ARMD, cataracts, floaters, and PPD) are diseases of aging (not present at birth, but occurring later in life) "and are NOT considered to be 'a refractive error or a congenital or developmental defect.'" The examiner further noted that the last diagnosis, refractive error (consisting of myopia, astigmatism, and presbyopia), is more commonly known as a glasses prescription, and refers to the focusing ability of the eye's optical elements and opined that it should be categorized as "a refractive error or a congenital or developmental defect." The examiner explained that refractive error is developmental in nature, generally mediated by genetic concerns, often manifested early in life, and expected to change as a person ages. The examiner opined that the claimed conditions are "less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." Based on review of the record and examination of the Veteran, the examiner explained: [T]here is evidence that the patient did and still does have a refractive error, components of which include myopia, astigmatism, and presbyopia, and that the refractive error did indeed change over the course of his military career. However, there is no indication that the magnitude or type of error was influenced by any event, treatment received, or occupation or activity performed by the patient while in service. In fact, a refractive error, as stated above, is essentially a genetic issue, and for the most part not affected by environmental issues, except in extraordinary cases. Nothing in the record suggests that the patient was exposed to an event which would alter his refractive error, so it is my opinion that "the veteran's developmental defect (myopic astigmatism) was not caused by, related to, or caused to increase beyond natural progression by his military service." The examiner provided brief definitions of the four bilateral eye conditions NOT found to be refractive, developmental, or congenital in nature: - ARMD: this is a condition in which the central portion of the retina of the eye becomes nonfunctional and ultimately leads to poor vision or even blindness. This condition is generally considered to be a part of the aging process (based on statistical studies) and therefore assumed to be mainly genetic. Its onset or progression can be modified by certain factors, including diet, ultraviolet light exposure, and perhaps injury. - Cataract: this condition is also tightly related to aging, and practically all humans will experience some level of cataract if they live long enough. The word 'cataract' refers to a change in the clarity of the natural crystalline lens inside the eye; a loss of clarity leads to a decrease in visual acuity. If visual loss reaches a certain level, then the cataractous lens will be removed and an implant will be inserted in its place, restoring vision. - Vitreous degeneration: this condition is commonly known as "floaters". A person with floaters will perceive objects in their vision which appear to be floating in space; these objects are often described as "hairs" or "strings" which move throughout the visual field. This condition is part of the aging process, is generally inescapable, and is harmless. - Peripheral retinal degeneration: also known as peripheral senile pigmentary degeneration. This condition is part of the aging process and is thought to affect more than 20 percent of people over age 40. It consists of deposition of pigment crystals in the peripheral retina. It does not affect peripheral vision, nor does it affect the results of electro-optical testing of the eye. It is a benign condition and requires no treatment. Regarding these bilateral eye conditions, the examiner explained: Based on today's examination, review of the available records, review of pertinent texts, and with consideration of the above definitions, it is my opinion that "the veteran's bilateral eye disabilities (specifically, age related macular degeneration, cataracts, vitreous degeneration, and peripheral retinal degeneration) are not caused by or related to the veteran's service, to include his complaints of headaches and treatment for a myopic astigmatism therein." The Veteran alleges that he did not have any problems with his eyes prior to service, was advised that he had an astigmatism in both eyes during service, has had continuous problems with his eyes ever since service, and now suffers from chronic service-related bilateral eye disability. However, the preponderance of the evidence is against a finding that he acquired a compensable eye disability during service. In December 2012, the Veteran was examined by an optometrist who reviewed the claims file, and pertinent texts, and considered the definitions provided above and opined that age related macular degeneration, cataracts, vitreous degeneration, and peripheral retinal degeneration "are not caused by or related to the Veteran's service, to include his complaints of headaches and treatment for a myopic astigmatism therein." Regarding the diagnosis of refractive error (including myopia, astigmatism, and presbyopia), the examiner noted that "the refractive error did indeed change over the course of his military career;" however, "there is no indication that the magnitude or type of error was influenced by any event, treatment received, or occupation or activity performed by the patient while in service." Hence, the examiner opined that this "developmental defect (myopic astigmatism) was not caused by, related to, or caused to increase beyond natural progression by his military service." In the absence of superimposed disease or injury, service connection may not be allowed for myopic astigmatism diagnosed in service, even if visual acuity decreased in service, as it is a not a disability entitled to service connection because it is a refractive error of the eye, and congenital in nature. 38 C.F.R. §§ 3.303(c), 4.9; VA ADJUDICATION PROCEDURE MANUAL M21-1MR, pt. III, subpt. iv, ch. 4 § B, 10d. Because the examiner expressed familiarity with the record and explained the rationale for the opinions (citing to the current state of medical knowledge), they are probative evidence in this matter. Because there is no competent evidence to the contrary, the opinions are persuasive. The Board has no doubt that the Veteran is sincere in his belief that his eye disabilities are related to his service. However, he is a "layperson," and lacks the medical knowledge and training to offer a probative opinion in the matter. While a layperson may be competent to observe changes in visual acuity/reductions in field of vision, the diagnosis and etiology of specific eye disorders are complex medical questions that require medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Veteran has not submitted any supporting medical opinions/treatise evidence in this matter. The Veteran's myopic astigmatism is not a compensable disability, and, as his other current eye disabilities (age related macular degeneration, cataracts, vitreous degeneration, and peripheral retinal degeneration) are not shown to be related to service, the preponderance of the evidence is against the claim of service connection for an eye disability. Accordingly, the appeal in this matter must be denied. ORDER Service connection for a bilateral eye disability is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs