Citation Nr: 1316351 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 05-36 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a left eye disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active military service from April 1958 to March 1960; and, from December 1961 to August 1962. The appeal comes before the Board of Veterans' Appeals (Board) from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, that found that new and material evidence was not received to reopen a claim for service connection for a left eye defect of vision. The Veteran testified before a Hearing Officer at the RO in January 2006, and before a Veterans Law Judge (VLJ) at a Board hearing at the RO in July 2006. Transcripts are of record and have been reviewed. In a decision dated in August 2007, the Board denied the Veteran's request to reopen the previously denied claim for service connection for a left eye vision defect. The Veteran timely appealed that denial, and the United States Court of Appeals for Veterans Claims (Court), in a May 2008 Order, granted a Joint Motion for Remand (JMR), that vacated the Board's decision and remanded the case for actions consistent with the JMR. In August 2008, the Board remanded the claim for additional development. Upon the return of the case, the Board forwarded the issue to a Veterans Health Administration (VHA) medical expert for an advisory opinion (VHA opinion) in accordance with the provisions of 38 C.F.R. § 20.901(a) (2012). The Veteran was provided a copy of the opinion in January 2010, and responded with his own statement in support of his claim. He indicated his wish for the Board to proceed with the adjudication of the appeal. In a decision dated in April 2010, the Board reopened the Veteran's claim and remanded the issue to the Appeals Management Center (AMC) in Washington, DC, for additional development and a decision on the merits. The AMC completed the additional development as directed, denied the claim on the merits, and returned the case to the Board for further review. In April 2012, the Veteran was notified that the VLJ who conducted his July 2006 hearing was no longer employed at the Board and he was offered the opportunity for a new hearing. See 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). The Veteran replied that same month that he did not wish to appear at another hearing. As such, the Board shall proceed to consider his appeal. In November 2012, the Board again remanded the claim to the AMC for additional development of additional records the Veteran identified in his response to a March 2012 VHA opinion. The AMC completed the additional development as directed, continued to deny the claim on the merits, and returned the case to the Board for further review. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that documents which are not duplicative of those in the paper file have been reviewed and previously considered by the AMC/RO, as noted in the supplemental statements of the case. Hence, there is no need to obtain a waiver from the Veteran or to remand the case. See 38 C.F.R. § 20.1304 (2012). FINDINGS OF FACT 1. The AMC complied with the November 2012 remand by contacting the Veteran and asking him to either provide a completed authorization and release to obtain private treatment records he identified, or by submitting them himself. 2. The Veteran does not have a current left eye disease or disability that is the result of a disease or injury in service, nor was a current left eye disease or disability aggravated by treatment in active service. CONCLUSION OF LAW A left eye disease or disability was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1) (2005). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 (2006). In a letter issued in September 2008, while the case was on remand, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection, to include the reason his prior claim was denied and the type evidence needed to reopen the claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. In accordance with the Joint Motion, he was advised that he could substantiate the claim with evidence that he incurred an eye disability in service. The Veteran has substantiated his status as a veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims. He was also told to submit relevant evidence in his possession. Any timing defect related to the issuance of fully compliant notice was surely cured by the prior remands and the September 2008 letter, see Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006), especially as the Veteran's appeal had been before the Court, and his claim was subsequently reopened. Hence, VA complied with the notice requirements of the VCAA. As earlier noted, The Veteran testified at a hearing before a VLJ at the RO in July 2006. The Court has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the hearing, the VLJ identified the issue on appeal and solicited information as to treatment, and findings related to the claimed disability; and, ensured the Veteran was aware of the evidence needed to substantiate his claim. The Board then remanded the claim to obtain evidence expected to assist the Veteran in substantiating the claim and obtained a VHA opinion. The Board thereby fulfilled its duty under Bryant. Further, neither the Veteran nor his representative has made any specific assertion of prejudice due to the manner in which the hearing was conducted. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (no presumption of prejudice for notice-type error). The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained available records of treatment reported by the Veteran, including service treatment records, and private medical records. As noted in the Introduction, the Board remanded again in November 2012 to obtain private treatment records the Veteran asserted would support his claim. The February 2013 supplemental statement of the case, however, notes the Veteran did not respond to the AMC request for authorization or submit the records himself. The duty to assist is not a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Additionally, the Veteran was afforded a VA examination. An examination is adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994)). It is a medical examiner's responsibility to provide a well-supported opinion so that the Board may carry out its duty to weigh the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (concluding that medical opinion is not entitled to any weight "if it contains only data and conclusions"); Stefl, 21 Vet. App. at 124 (stating that VA medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). An examination may also be inadequate, in the context of a chronic disease, if the examiner ignores a veteran's reports of in-service injury or continuity of symptomatology. Dalton v. Nicholson, 21 Vet App 23 (2007); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (finding error where "the VA examiner did not indicate whether he considered Mr. Barr's assertions of continuity of symptomatology") (overruled on other grounds Walker v. Shinseki, 907 F. 3d 1331 (Fed. Cir. 2013)). After obtaining a VA examination and opinion, the Board sought to correct deficiencies in that report by obtaining an expert opinion through the Veterans Health Administration (VHA). The first expert noted limitations in his expertise. The Board then obtained a second VHA opinion from an expert in the area of strabismus. The VHA specialists considered the prior medial history in detail, and considered the Veteran's reports and contentions. The opinions are well supported by analysis. In sum, the evidence of record shows no error or omission in notice or assistance that would preclude the Board from addressing the merits of the issue on appeal. See 38 C.F.R. § 3.159(c). Following the second VHA opinion, the Veteran reported private treatment, records of which were not in the record. The Board remanded the appeal for efforts to obtain these records. The Veteran was asked to provide authorization for VA to obtain the record, or to provide the records himself. He did not respond. These actions substantially complied with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). In addition, VA has no further duty to seek these records because the Veteran has not provided the necessary releases. 38 C.F.R. § 3.159(c)(1)(ii) (2012). There has also been substantial compliance with the terms of the Joint Motion. As noted above, the Veteran was provided with the notice specified in the Joint Motion. In accordance with the Joint Motion efforts were made to obtain records of previous VA treatment, including the report of an August 2001 evaluation. (The Joint Motion made reference to VA treatment in September 2001 that was reported by a private physician in restating a history apparently supplied by the Veteran, but the actual records show that the treatment took place in August 2001). Service Connection Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden, 381 F.3d at 1167; Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau, 492 F.3d at 1377; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). 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, 469-70 (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"). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods, where applicable, are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. §§ 3.303(d), 3.307, 3.309. Analysis The Veteran's service treatment records include the report of a pre-induction examination in May 1957, when the eyes were reportedly normal, and vision in both eyes was 20/20. In a report of medical history completed at the same time, the Veteran reported that he had eye trouble, and it was noted that he had worn glasses for the past four years. The Veteran noted the same history in a report of medical history completed for "pre-enlistment" in April 1958. It does not appear that an additional examination was provided prior to the Veteran's acceptance for service. The service treatment records document that in April 1958, the Veteran was referred to an eye clinic after reporting broken glasses. He was seen for complaints related to the left eye from March to September1959, when he underwent surgery for strabismus. It was consistently reported that problems had existed since childhood. He initially reported occasional problems with the left eye lid accompanied by double vision since childhood. In July 1959, it was reported that the Veteran had had a squint since childhood, perhaps since birth. September 1959 it was noted that he had left esotropia of 60 prism diopters for distance since early childhood, as well as a left hypotropia of 11 prism diopters, with resulting esotropia of the left eye. Further service treatment records noted that strabismus (esotropia and hypotropia are both forms of strabismus) had been observed since he was six years of age. Corrective surgery was performed in September 1959, when further details of this condition were noted to include an anomalous retinal correspondence, with paramacular fixation of the left eye and underaction of the left eye inferior oblique muscle caused by an old paralysis of that muscle. In September and November 1959, the Veteran's eyes were described as exactly parallel for near and distance. In September 1959, after the surgery, there was a 28 prism left esotropia. On examination for separation from service, the eyes were again reported to be normal. It was noted that he had undergone left esotropia in September 1959. His vision remained 20/20. Records from the second period of service note the history of eye surgery, but do not report any eye abnormality. In his September 2005 notice of disagreement, the Veteran reported recent VA treatment with prescribed corrective glasses, as support for his claim. VA treatment records do not reflect treatment for an eye disorder. The private medical records obtained in September 2004, however, include records of optometric treatment dated between 1995 and 2004, and reflect findings of refractive error and astigmatism. Records from a private treating physician also note complaints of diplopia at times. In testimony before a VLJ, the Veteran asserted that his double vision started in service in 1959, calling attention to a September 22, 1959, service treatment record, and he alternatively asserted that he had unspecified aggravation or additional problems as a result of his in-service eye surgery. At a VA primary care evaluation in August 2001, the Veteran noted the history of left eye surgery to repair crossed eyes. His pupils were noted to be cloudy bilaterally, and there was a white gray circle around the corneas. VA subsequently received records showing that the Dr. K. Nash, O.D., had been treating the Veteran since November 1995. In December 1997, it was recorded that the Veteran had had symptoms in his left eye in 1959. In December 2001, the Veteran reported that he had been seen at VA in September 2001, when a nurse practitioner told him she had seen something in the left eye. The Veteran continued to receive VA treatment for eye complaints. In August 2004, the Veteran reported that he had experienced double vision on upgaze since surgery for esotropia when he was 23. In January 2006, E. Cheeseman, M.D., reported his impression that the Veteran had a longstanding Brown syndrome of the left eye, and also had an A-pattern esotropia with mild ptosis. He also noted that on examination the Veteran had 20 prism diopters esotropia in the left eye. In October 2008, the Veteran underwent a VA examination. The examiner apparently did not review the records, but did state based on the Veteran's reports that he had "a muscle procedure, likely a recession-resection in the left eye for double vision in 1959." The impression was likely acquired Brown's syndrome with left superior oblique overaction. The Board obtained a December 2009 VHA expert opinion. The VHA medical expert, J. Bixler, M.D., found that the October 2008 examiner's assessment of an acquired Brown's syndrome was incorrect, because that diagnosis was assigned when the superior oblique muscle dysfunction develops later in life, whereas the dysfunction in question, if present, was present following the in-service ameliorative eye surgery, comparatively early in the Veteran's life. Dr. Bixler clarified that "[t]he more likely possibility is a 'pseudo-Brown's syndrome' that may have been caused by an adhesion syndrome of the left lateral rectus muscle after the initial surgery in 1959." Dr. Bixler further opined that while a pseudo-Brown's syndrome was thus a condition possibly present currently and related to the in-service surgery, the noted dysfunction was more likely to be a left inferior oblique underaction rather than a pseudo-Brown's syndrome. Dr. B concluded that this differential diagnosis - pseudo-Brown's syndrome versus left inferior oblique underaction - would have to be clarified by a further examination by a strabismus specialist. Dr. B explained that while the pseudo-Brown syndrome, if present, would have been a result of the ameliorative surgery in service, an inferior oblique underaction would have been a pre-existing condition incompletely ameliorated by the in-service surgery. The Board remanded this case in order to provide the Veteran with a VA examination, by a strabismus specialist. The Veteran was provided a VA examination in May 2010. The VA examiner, Dr. Thomas, a neruo-opthalmologist, disagreed with Dr. Bixler's opinion that the strabismus surgery had a role in creating a "pseudo-Brown's syndrome" from an adherence syndrome. This opinion was based on the fact that the vertical strabismus existed prior to the surgery, was not addressed by the surgery, and was unchanged after the surgery. Dr. Thomas noted, however, that he was not a strabismus specialist, and did not routinely perform strabismus surgery. As a result, the Board requested another VHA opinion in November 2012. The VHA specialist, J.B. Shepherd, III, M.D, an assistant professor of neuro opthalmology and strabismus surgery at Washington University; noted in a July 2012 report that he specialized in the surgical correction of complex acquired and congenital strabismus. He noted further that he had personally performed hundreds of eye muscle surgeries of the type performed on the Veteran during his active service. Dr. Shepherd noted the prior medical opinions of Dr. Bixler and Dr. Thomas. Dr. Shepherd noted the Veteran's records documented a history of strabismus (eye misalignment) from at least six years of age. The service treatment records noted the Veteran had worn glasses since at least 1953, and he required prismatic correction in his glasses for intermittent double vision. This problem was recognized as early as June 1958, although surgery was not undertaken until September 1959. An entry in the service treatment records of September 1959 noted the Veteran to have a 60-65 diopter left esotropia and an 11-16 diopter left hypotropia with presumed underaction of the left inferior oblique muscle. The Veteran was also noted to have anomalous retinal correspondence that suggested an early-childhood onset of his strabismus. Dr. Shepherd noted the September 1959 surgery was performed with the intent of decreasing the angle (size) of the Veteran's left esotropia. Dr. Shepherd noted further that the operative notes of the surgery indicated it was done in a standard surgical fashion that was still within accepted surgical standards today. Further, he noted, the eye muscle surgery performed on the Veteran was intended to address only the horizontal misalignment of the left eye (esotropia). Surgery was not performed on the vertical muscles, as it was the surgeon's intention to address the vertical misalignment (left hypotropia). Dr. Shepherd observed the Veteran did well post-operatively, with a reduced esotropia (28 diopter left esotropia compared to 60-65 diopters pre-operatively). As concerned the Veteran's pre-operative status, Dr. Shepherd noted the surgeon's initial pre-operative evaluation revealed underaction of the left inferior oblique and an associated left hypotropia. Left inferior oblique underaction can clinically mimic Brown's syndrome (superior oblique tendon sheath syndrome) or non-superior oblique Brown's syndrome (pseudo Brown's syndrome). Dr, S noted that, in his experience, making the distinction between and inferior oblique underaction and Brown/pseudo- Brown required forced duction testing under general anesthesia. He noted further, however, distinguishing between the two entities was not necessary in the Veteran's case. Dr. S noted a recent ocular examination revealed the Veteran to have a left esotropia that measured approximately 25 diopters, which was consistent with the Veteran's post-operative measurements in 1959. Further, the Veteran's current measurement was significantly less than the 60-65 diopters that were measured pre-operatively in 1959. In addition to that status, in primary gaze the Veteran continues to have a left hypotropia of about 8 diopters with limitation of elevation of the left eye in adduction. As before, the main reasons for the limitation of elevation in adduction would be left inferior oblique underaction, which was the in-service surgeon's assessment, superior oblique Brown's syndrome, or non-superior oblique Brown's syndrome (pseudo-Brown). An August 2004 ophthalmic examination revealed -2 underaction of the inferior oblique left eye and positive forced duction. Dr. N observed that the oblique muscles (superior and inferior) are the most difficult muscles to accurately test with forced ductions in an awake patient. He personally found the results to be both highly variable and subjective. Hence, he opined the only accurate method of forced duction testing of the oblique muscles is with the patient under general anesthesia. Thus, without specific testing under general anesthesia, he believed it would not be possible to definitely differentiate left inferior oblique underaction, superior oblique Brown's syndrome, and non-superior oblique Brown's syndrome (pseudo-Brown's). Nonetheless, Dr. Shepherd agreed with Dr. Thomas that the matter was ultimately a semantic point, and it was irrelevant to the Veteran's claim, in as much as the finding of limitation of elevation of the left eye in adduction with an associated left hypotropia was present pre-operatively; and, did not change post-operatively over the intervening decades. Dr. Shepherd observed that Dr. Bixler, in her December 2009 opinion, allowed for the possibility that fat adherence syndrome due to resection of the left lateral rectus muscle could result in similar limitation of elevation of the left eye. Dr. Shepherd noted that Dr. Bixler, however, admitted this was less likely than inferior oblique underaction, which was what the in-service surgeon believed. Dr. Shepherd opined that Dr. Bixler was mistaken in that because the left lateral rectus muscle was transposed superiorly rather than inferiorly. (Emphasis in original). A superior transportation of the muscle would be more likely to result in apparent overaction of the left inferior oblique muscle, which is not the case with the Veteran. (Emphasis in original). Dr. Shepherd observed the opposite is in fact the case with the Veteran. In light of those factors, Dr. Shepherd agreed with Dr. Thomas and disagreed with Dr. Bixler's allowance for that possibility. Dr. Shepherd opined it was highly unlikely that the Veteran's left esotropia and hypotropia were the result of the strabismus surgery performed in September 1959. In fact, Dr. Shepherd observed, the surgery improved the Veteran's horizontal deviation from 60-65 diopters to approximately 20-25 diopters. Dr. Shepherd noted the surgery was neither intended to change, nor did it change, the left hypotropia and limitation of elevation of the left eye in adduction. Both the left hypotropia and limitation of elevation of the left eye were present before and after the eye muscle surgery, and it had remained remarkably stable over the years. The left esotropia present before surgery was markedly improved by the surgery. After receipt of Dr. Shepherd's opinion, the Veteran asserted that it was only natural for VA to find someone to support VA's side. The Veteran denied having received any type of medical attention until he was 12-years-old, when he was treated for Chicken Pox. He denied that there was any record anywhere that he had strabismus since six years of age. He asserted that he bought some non-prescription glasses in 1952 as "a fashion fad," and broke them in basic training. When he went to the Ft. Jackson eye clinic to get them repaired, he was told he did not need glasses; the ones he had were like "looking through a car windshield." The Veteran denied wearing glasses at the time he had the surgery. Analysis No eye defects were noted on the 1957 examination, which apparently served as the basis for the Veteran's acceptance for service. As such, he is presumed to have been in sound condition when accepted and enrolled into service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). The only eye defect identified in service was strabismus. The condition has been described at times as congenital; however, service connection is available for congenital diseases, as opposed to defects, and the presumption of soundness applies to such diseases. Quirin v. Shinseki, 22 Vet. App. 390 (2009); 38 C.F.R. § 3.303(b). While the Board previously sought an opinion as to whether the strabismus with hyperopia and esotropia was a congenital defect as opposed to a disease, this question was never satisfactorily answered. Indeed it is not entirely clear that these conditions were congenital. The Board will analyze the condition, assuming it is a congenital disease or acquired condition. Accordingly, the presumption of soundness is applicable. That presumption can only be rebutted by clear and unmistakable evidence that the disease or disability both existed prior to service and was not aggravated in service. 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). In this case, the Veteran reported "eye trouble" on medical histories before he entered service and that he wore glasses. The service treatment records consistently document that the Veteran reported symptoms of strabismus with esotropia and hypotropia since childhood. Since he was reporting observable symptoms, his reports are competent. 38 C.F.R. § 3.159(a). It was not until decades after service that the Veteran was noted to associate the onset of his eye impairment with the in-service surgery and to deny that he had any pre-existing symptoms. These reports are obviously contrary to his well documented reports before and during service and were made after he submitted his initial claim for service connection in 1981. They are not deemed credible, because they are inconsistent with his contemporaneous statements. Moreover, to accept his later reports, it would also have to be accepted that numerous care providers in service invented specific reports of pre-existing symptoms. This is simply not credible. The only credible evidence is to the effect that his claimed eye conditions pre-existed service. Accordingly, the Board concludes that there is clear and unmistakable evidence that the strabismus with esotropia and hypotropia pre-existed service. The next question is whether there is clear and unmistakable evidence that the pre-existing condition was not aggravated in service. The Court has held that temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, not just the symptoms, has worsened. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The law and regulation provide that aggravation will not be conceded if the pre-existing disability underwent no increase. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306. In recent years the Veteran has essentially reported that the disability did increase in severity after the in-service surgery. The contemporaneous record; however, shows that the Veteran reported no change in his symptoms during service from what they had been before. The in service surgery actually resulted in improved findings. Whereas before the surgery, the Veteran was seen on a number of occasions with eye complaints, there is no indication that he received treatment in service after recovering from the surgery. The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will also not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). Hence, mere corrective surgery in service, without complications causative of other disorder, cannot be a basis of service connection. In addition Drs. Thomas and Shepherd have provided well reasoned opinions against finding that there was any aggravation of the pre-existing disability in service. For the reasons previously cited, the Veteran reports that his disability worsened after surgery in service are not deemed credible. Accordingly, the Board concludes that there is clear and unmistakable evidence that the pre-existing strabismus with esotropia and hypotropia was not aggravated in service. The presumption of soundness is rebutted. The only way that service connection could be established for these conditions is by way of aggravation. 38 U.S.C.A. § 1153. Since the evidence is clear and unmistakable that there was no aggravation, service connection is not established. Dr. Bixler's opinion and to a lesser extent the report of Dr. Cheeseman provide evidence of an acquired Brown's syndrome as a result of the in-service surgery. The opinions of Drs. Thomas and Shepherd are against such a conclusion. The Board finds the opinions of Dr. T and Dr. S garner the greater weight. 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."). Dr. Bixler's opinion was equivocal in that it merely noted that additional disability "may" have been caused by an adhesion syndrome following surgery and went on to say that this was less likely than an underaction that was a pre-existing condition that was not fully corrected by the surgery in 1959. Hence, the weight of the opinion is actually against finding that there was an acquired disability as the result of in-service surgery. Further, Dr. Bixler noted her expertise with strabismus was limited, whereas Dr. Shepherd is a specialist in that area. Dr. Shepherd articulated a comprehensive review of the medical records and the operation report and brought his expertise to bear on those facts. The Board finds he provided a full explanation and rationale for his opinion. Thus, the Board finds his opinion legally adequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). In light of all of the above, the Board is constrained to find the preponderance of the evidence is against a finding that there is any eye disability that was the result of a disease or injury in active service. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, reasonable doubt does not arise and the claim is denied. 38 U.S.C.A. § 5107(b); Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for a left eye disability is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs