Citation Nr: 1315587 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 10-17 978 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for claimed left eye vision loss, to include as secondary to the service-connected pterygium of the left eye. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from June 1951 to January 1964. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the RO. The Board remanded this claim on appeal in November 2012 for additional development of the record. The development has been completed and the claim has been returned to the Board for appellate disposition. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 is not shown to have manifested a loss of visual acuity involving the left eye during service or for many years thereafter. 2. The currently demonstrated loss of central visual acuity due to age-related macular degeneration of the left eye is not shown to be due to an event or incident of the Veteran's period of active service; nor is it shown to have been caused or aggravated by the service-connected postoperative residual pterygium of the left eye. 3. The currently demonstrated residual scarring of the left eye due to the removal of the service-connected pterygium is shown as likely as not to be productive of some unspecified impairment of field vision on the nasal side. CONCLUSIONS OF LAW 1. The Veteran's left eye disability manifested by a loss of central visual acuity due age-related macular degeneration is not due to disease or injury that was incurred in or aggravated by active service; nor is it proximately due to or the result of the service-connected pterygium of the left eye. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). 2. The Veteran's left eye disability manifested by impaired field vision on the nasal side is shown to have been caused by the service-connected postoperative residual pterygium of that eye. REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2011). 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). VCAA 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, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a September 2008 (and November 2011 letter issued subsequent to the decision on appeal) letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. Moreover, after issuance of the September 2008 and November 2011 letters, and opportunity for the Veteran to respond, the April 2013 Supplemental Statement of the Case (SOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records and examination report. The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, 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 by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any defect in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such defect is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, 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). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The Veteran's service treatment records document that he received medical attention for a pterygium of each eye. A March 1953 service treatment record also documents treatment for chemical conjunctivitis when, refueling a government vehicle during duty hours, the Veteran accidently splashed gasoline in his eyes. Surgery was performed in October 1953 for removal of the pterygium involving the right eye. At the time of the separation examination in December 1963, the Veteran reported having or having had eye trouble. It was noted that the Veteran had a history of having a growth over the right eye that had been removed in "1956" without complications. His visual acuity was noted to be within normal limits. The Veteran asserts that his claimed left eye macular degeneration and horizontal diplopia are caused or aggravated beyond normal progression by surgery performed for the service-connected pterygium involving the left eye. The VA treatment records show that the Veteran underwent surgery for removal of a pterygium from the left eye with autograph in October 2008. In a June 2009 statement, the Veteran reported that he had been steadily losing sight in his left eye following the excision of the pterygium on his left eye. He stated that surgeon who performed his surgery told him that she had to "go a little deep because of the mast growth." In a March 2009 report of VA examination, an ophthalmologist concluded, in pertinent part, that the Veteran's loss of vision in his left eye was mostly due to macular retinal scarring from age-related macular degeneration and a cataract. Additionally, the ophthalmologist stated that the Veteran's horizontal diplopia was due to a small angle exotropia that had become symptomatic in the last five years and was not as likely as not related to pterygium or military service. In a March 2012 report of VA examination, the Veteran reported that he was experiencing horizontal diplopia that was longstanding and dated back to the pterygium surgery in his left eye in 2008. The VA examiner opined that the Veteran's left eye macular degeneration was less likely than not proximately due to or the result of his surgery for the left eye pterygium. He noted that the macular degeneration was a separate entity from the pterygium and was unlikely to have any connection with a pterygium. He reported that the macular degeneration began to occur at a date later in the Veteran's life and was consistent with its usual course. The VA examiner opined that the Veteran's lateral diplopia was more likely than not due to a previously diagnosed extropia that was noted during the March 2009 VA examination. The Veteran reported having had horizontal diplopia for at least five years. The examiner opined that, while it was less likely than not that the horizontal diplopia was due to either the Veteran's service-connected pterygium or his nonservice-connected macular degeneration, it was at least as likely as not aggravated by the poorer vision he was experiencing due to the visual impairment secondary to his worsening macular degeneration and poorer central vision which caused more sensory extropia. In November 2012, the Board remanded the claim for a clarifying opinion as to etiology of the claimed left eye vision loss. Pursuant to the November 2012 Board remand, the Veteran was afforded another VA examination in February 2013. In the report of February 2013 VA examination, the optometrist recorded the Veteran's medical history, including progressive age-related macular degeneration primarily involving the Veteran's left eye with resulting blindness of the eye which worsened after he had the pterygium excision. The Veteran complained of a "black spot" in the center of his left eye that interfered with his overall vision. He reported that he could see much better when he closed his left eye. He believed that his macular degeneration and his vision had worsened due to the pterygium excision. On examination, the diagnoses were those of age-related macular degeneration, pterygium, dry eye syndrome and cataract. The optometrist reported that the Veteran had age-related macular degeneration which was much worse in his left eye and resulted in a large scotoma limiting his visual potential to the extent that he was legally blind in his left eye. The optometrist also reported that the Veteran had a subsequent pterygium excision in his left eye which resulted in significant nasal corneal scarring extending almost to his visual axis. The optometrist concluded that, while the macular degeneration progressed after the pterygium surgery on the Veteran's left eye, it was less likely than not that the pterygium was responsible for this progression. The optometrist explained that, as in the case of the Veteran, age-related macular degeneration could and often did progress over a few years causing very significant visual loss including legal blindness. The reported ink spot in his left eye was more likely than not due to the central scotoma present from a large area of atrophic macular scarring which included the fovea. In a subsequent February 2013 VA addendum, the ophthalmologist concurred with the findings and opinion of the optometrist. Given its review of the record, the Board finds that service connection for the claimed left eye impairment of central visual acuity is not warranted. In a February 2013 report of VA examination, the optometrist concluded that, while the macular degeneration progressed after the pterygium surgery of the Veteran's left eye, it was less likely than not that the pterygium was responsible for this progression. The optometrist explained that age-related macular degeneration could and often did progress over a few years causing very significant visual loss including legal blindness. In an addendum, the ophthalmologist concurred with the findings and opinions of the optometrist The Board notes that this opinion was based on a thorough review of the medical records, taking the Veteran's history and performing examination. The only evidence of record supporting the Veteran's claim is his general lay assertions. In this case, the Board finds that the Veteran is competent to describe his worsening left eye visual loss since surgery for the service-connected pterygium involving the left eye. 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). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including the lay evidence. Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). To the extent that the Board finds the Veteran's lay assertions of worsening vision in the left eye to be credible, the statements alone are of limited probative value for the purpose of medically linking his current loss of vision of the left eye to the surgery performed for the service-connected left eye pterygium. Moreover, the Board finds that the opinion of the VA eye specialists in the examination reports to be more probative for the purpose of deciding this appeal. The VA medical specialists are professionals who have reviewed the claims file, considered the reported history and performed physical examinations and used their medical expertise in reviewing the facts of this case in determining that the Veteran's loss of central visual acuity was due to the progression age-related macular degeneration that was not related to the service-connected pterygium involving the left eye or surgery performed for that condition. The VA examiners also found that the Veteran's diplopia was not causally related to the service-connected pterygium or the recent eye surgery therefor. However, on this record, the Board finds that it is as likely as not that the Veteran is experiencing some unspecified impairment of his visual field on the nasal side that extends to visual axis due to the residuals scarring caused by the removal of the service-connected pterygium from the left eye. In resolving all reasonable doubt in the Veteran's favor, to this limited extent, service connection for impairment of visual field as secondary to the service-connected pterygium of the left eye is granted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for impairment of field vision on the nasal side of the left eye as secondary to the service-connected pterygium is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs