Citation Nr: 1318167 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 09-21 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an astigmatism and myopia, claimed as a bilateral eye condition. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active service from September 2001 until August 2007. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2010 and April 2012, the Board remanded the issue on appeal for further examination. FINDINGS OF FACT 1. The Veteran's bilateral eye disability, to include myopia and astigmatism is considered refractive error and congenital defect for which service connection may not be established. 2. The preponderance of the evidence does not show that the Veteran has a superimposed eye disability upon the pre-existing refractive error during or after service. CONCLUSION OF LAW A bilateral eye condition, including astigmatism and myopia was not incurred in nor aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify & Assist VA has duties to notify and assist the Veteran in substantiating this claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record: (1) that is necessary to substantiate this claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a pre-adjudication letter dated in December 2007, the RO notified the Veteran of the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). This letter also informed him of the types of evidence that would be considered to substantiate his claim and the information and evidence needed to sustain a claim for service connection. The December 2007 letter provided the Veteran with the notice requirements set out in Dingess. 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). The claims file also contains service treatment records (STRs), post-service VA medical records, and reports of VA examinations and opinions dated in January 2008, January 2011, April 2012, and February 2013. No additional records have been identified. A review of the paper claims file as well as Virtual VA does not reveal any additional documents pertinent to the present appeal. VA has a duty to ensure that its examinations or opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As the February 2013 VA examination and opinions reflect review of the claims file and assessment of the Veteran's contentions and disabilities, the opinions are adequate. The duty to assist in the gathering of records and a VA opinion has been met and the RO/AMC has substantially completed the April 2012 remand directives by obtaining the requested opinion. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. II. Criteria & 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, 708 F.3d 1331 (Fed. Cir. 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) Here, the Veteran contends that during his extensive watch-standing duties as Radar Systems Controller through the previous two deployments and work-ups, the dark environment and bright screens of the Combat Information Center caused him to develop and astigmatism. This was the first deterioration of his eyesight and thus his first need for a full optical examination. He reported that the Naval optometrist stated that he was not eligible for the refractive surgery until he received a second full examination in one year and the he would be placed on the waiting list for refractive eye surgery. See April 2007 statement, May 2008 notice of disagreement, and June 2009 form 9. STRs, include a December 2000 entrance report of medical examination that revealed that the Veteran's eyes were normal on clinical evaluation. His distant visual acuity was 20/30 and 20/50 in the right and left eyes, respectively uncorrected; correctable to 20/20. Refraction in the right eye was -0.25 0.25 x 102 and in the left eye was -.75 -0.50x0.75. His near visual acuity was 20/20, bilaterally. On his December 2000 entrance report of medical history, he denied wearing glasses or contact lenses or having any eye trouble. He indicated that he had vision in both eyes. In September 2002, the Veteran was seen for complaints of redness around his yes for the past week. The only recent exposure or contact was with the use of commercial skin wipes to wipe his hands and face with. He reported that he had some stinging when perspiring. On examination, there was minimal periorbital redness with fine scaling. The assessment was probable contact dermatitis. He was to avoid the use of commercial wipes. A March 2007 treatment record showed that the Veteran was diagnosed with "refractive error-myopia" and "astigmatism-regular." The record noted that the Veteran was not a candidate for photorefractive keratectomy (PRK) since he never had a full eye examination before. A May 2007 report of medical assessment indicated that compared to his last medical assessment/physical examination, his over health was worse. He again reported that his vision became worse. He indicated that his vision was a condition that currently limited his ability to work in his primary military specialty or required geographic or assignment limitations. He indicated that he was concerned about correcting his vision and intended to seek optical surgery through the Department of Veterans Affairs. In May 2007 correspondence to Congressman Weldon, the Captain of the U.S. Navy, Deputy and Chief of Staff, M.D.D. reported that while on deployment in late 2006, the USS Barry, was identified by the Naval Medical Center, Portsmouth (NMCP) as the March 2007 "Ship of the Month" for corneal refractive surgery screenings. Once an evaluation is completed, the NMCP determined if the service member was eligible for refractive surgery based on established criteria. Refractive surgery was an elective surgery and the current waiting list was six to twelve months. The Veteran was screened in March 2007. One of the criteria was that the service member must have documented stable refraction of the eye for twelve months prior to surgery and be available for follow-up treatments for twelve months post surgery. Due to the Veteran's pending elective honorable discharge from military service in September 2007, he would not have enough service time to meet the criteria for elective corneal refractive surgery. A pair of glasses were offered to him and accepted. The Veteran did obtain a second opinion from a civilian source that offered corneal refractive surgery. A June 2007 record noted that the Veteran's last physical examination was in August 2006, and there have been no interval changes since his last physical examination. He was physically qualified for separation. On June 2007 separation report of medical history, the Veteran reported that his usual occupation was spy radar technician and search and rescue swimmer. He indicated that he had an eye disorder/trouble and wore lenses or glasses. He denied loss of vision in either eye. He clarified that his vision became worse and attached a Congressional letter in the medical record with details. Outpatient treatment records from West Palm Beach VAMC dated in August 2007 were reviewed and noted that the Veteran wanted corrective surgery. After examination, he was diagnosed with compound myopic astigmatism in both eyes. His ocular health was reported as unremarkable. On January 2008 VA eye examination, the Veteran reported that he was able to see better since receiving glasses. Physical examination revealed a best corrected visual acuity of 20/20 bilaterally. The examiner noted both eyes were healthy. The examiner opined that the Veteran's refractive error was at least as likely as not caused by or a result of watching the radar screen in-service. The examiner reasoned that there were no eye examinations available to see what the Veteran's vision was prior to enlisting in the Navy. The examiner noted that there were, however, some studies that show that performing prolonged near tasks like looking at a radar screen has caused patients to develop myopia. VA outpatient treatment records included annual eye examinations that continued to diagnose the Veteran with refraction errors in both eyes. In June 2009, the Veteran submitted online research regarding the effects of video display terminal use on eye health and vision. In January 2011, the Veteran submitted letters from his supervisor and a professor that reported the Veteran's problems with his eyes on the job and in the classroom. In a January 2011 and April 2012 opinion, a VA optometrist reported that the Veteran's myopia and astigmatism were most likely congenital and it was at least as likely as not that the disorders were aggravated by his duties involving a radar screen during active military service. The examiner indicated that she reviewed the claims file. The examiner reasoned that the Veteran's entrance examination showed that his visual acuity was 20/30 in the right eye and 20/50 in the left eye. The examiner indicated that his job, identified as reading radar screens, may have served as a risk factor for the progression of myopia. In February 2013, the VA examiner found that the Veteran did not now nor has ever been diagnosed with an eye condition other than congenital or developmental errors of refraction. After review of the claims file and all evidence of record the examiner opined that the Veteran's claimed astigmatism and myopia, also claimed as bilateral eye condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran had developmental error of refraction in both eyes. The examiner acknowledged that although some environmental factors were known to have a potential effect on the amount of the refractive error, it would be mere speculation and impossible to provide a baseline for the effects of military service operating radar screens and computers. The examiner stated that the Veteran was 17 years old when he entered the service and had refractive error at that time. Additionally there was no superimposed disease or injury during his period of active service. The Veteran currently has myopia and astigmatism in both eyes that were correctable to 20/20 in each eye. There was no other ocular pathology seen on examination. On review of the record, throughout service as well as the appeal period, the Veteran has been diagnosed with astigmatism and myopia. The VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 4, Section B provides guidance on evaluating conditions of the organs of special sense (i.e., the eyes). Refractive errors are defined to include astigmatism, and myopia. See M21-1MR, Part III, Subpart iv, 4.B.10.d. The Board notes that 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. 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). As such, the Veteran's diagnosed eye disabilities are not disabilities for which service connection may be established. The Board recognizes that service connection may be granted for additional disability due to disease or injury superimposed upon a defect during service. VAOPGCPREC 82-90 (1990). As discussed above, STRs show that the Veteran had defective vision during service. The Board has considered the Veteran's contentions that his eye condition worsened as a result of him serving as a radar technician/operator and having to look at bright computer screens in a dark room that caused strain on his eyes. He submitted and quoted research that addressed the impact of video/computer screens on the eyes and vision, however, these research documents contained no specific findings pertaining to this Veteran's eye disorders. As a lay person, relying on a generic medical treatise, the appellant is not qualified to render a medical opinion as to the etiology of the cause of his eye disorders. Wallin v. West, 11 Vet. App. 509, 514 (1998) (treatise evidence cannot provide speculative generic statements not relevant to the Veteran's claim," but, "standing alone," must include "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion)." Here, the evidence referred to and submitted by the Veteran, is general in nature and does not specifically relate to the facts and circumstances surrounding the Veteran's case. The January 2008 examiner's comment that some studies show that performing prolonged near tasks like looking at a radar screen has caused patients to develop myopia was also too general. Additionally, in January 2011 and April 2012, the VA examiner indicated that the Veteran's job, identified as reading radar screens, may have served as a risk factor for the progression of myopia, however, it lacks any probative and persuasive value. Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of may also implies may or may not and is too speculative to establish medical nexus). Regardless, the Veteran's myopia and astigmatism have been characterized as a congenital defect and refractive error. There is no competent and credible lay or medical evidence of any superimposed disease or injury during service with resultant disability. In the absence of a superimposed disease or injury, service connection may not be allowed for congenital defects or refractive errors of the eyes, even if visual acuity decreased in service, as these are not diseases or injuries within the meaning of applicable legislation relating to service connection. Id. Here, the bilateral eye disorder includes astigmatism and myopia, which are congenital defects and the medical records are negative for evidence of aggravation by a superimposed disease or injury. Therefore, service connection for the Veteran's bilateral eye disorder is not warranted. 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 February 2013 VA examiner who thoroughly reviewed the claims file, examined the Veteran and considered his contentions, and concluded that his eye disabilities, astigmatism and myopia, were a developmental error of refraction in both eyes and there was no superimposed injury or disease during service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Accordingly, for the reasons stated above, the Board finds that a preponderance of the evidence is against the claim for service connection for a bilateral eye disorder, to include astigmatism and myopia, and there is no doubt to be resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for an astigmatism and myopia, claimed as a bilateral eye condition, is denied. ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs