Citation Nr: 1319936 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 10-39 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a bilateral eye disorder (claimed as bilateral vision condition, cataracts/glaucoma). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran had active service from September 1949 to August 1975. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In pertinent part, the RO denied service connection for decreased visual acuity (claimed as bilateral vision condition, cataracts/glaucoma). This matter was previously before the Board in December 2010 and April 2012. Each time, the Board remanded the claim for additional development. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the claim. A review of the Virtual VA claims file does reveals additional VA medical records pertinent to the present appeal. Those records were considered by the Appeals Management Center (AMC), as documented in the November 2012 supplemental statement of the case. 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). FINDING OF FACT The evidence of record is against a finding that the Veteran has a bilateral eye disorder related to his active duty service. CONCLUSION OF LAW The criteria for the establishment of service connection for a bilateral eye disorder have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist With regard to the claim for service connection, VA has met the duty to notify and assist the claimant in substantiating this claim for VA benefits, as provided by the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record that is necessary to substantiate the claim. Proper notice will inform the Veteran of what evidence VA will seek to provide, and of what evidence the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1) (2011). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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). Further, this notice must include information regarding the disability rating and effective date for the award of benefits if service connection is awarded. Id. at 486. The U.S. Court of Appeals for the Federal Circuit previously held that any errors in notice required under the VCAA should be presumed to be prejudicial to the claimant unless VA shows that the error did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Under Sanders, VA bore the burden of proving that such an error did not cause harm. Id. In the case Shinseki v. Sanders, 129 S.Ct. 1696 (2009), however, the U.S. Supreme Court held that the Federal Circuit's blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA. Rather, in Shinseki v. Sanders, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Id. As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant. Here, VA satisfied the VCAA duty to notify by way of a letter sent to the Veteran in July 2009 that fully addressed all of the notice elements and was sent prior to the initial RO decision in this matter. Through the letter, VA informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. VA also informed him that his service connection claim must be supported by evidence indicating a current disability, evidence that the injury or disease was incurred or aggravated during service, and medical evidence of a nexus between the current disability and the in-service injury or disease. VA informed him that VA would seek to provide federal records and that it was his responsibility to support his claim with appropriate evidence, though VA would help him obtain records from any non-federal sources. The July 2009 letter also included notice with respect to the Dingess requirements. It included notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and VA has complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in obtaining any outstanding records of identified VA or private medical treatment relevant to his claim, and affording him an examination when appropriate. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. With regard to records, VA has associated with the claims folder the Veteran's service treatment records, private medical records and pertinent VA medical records. The Veteran has not indicated that there exist any records of VA or private medical treatment relative to this claim that are not already in the claims file. The Board notes that the development directed by the Board in the December 2010 and April 2012 remands has been accomplished. The Veteran received a VA examination in March 2011 (per the December 2010 remand) and a new medical opinion was obtained in January 2012 (per the April 2012 remand). Furthermore, VA obtained February 2013 VA medical opinion to further clarify whether the Veteran has any eye disorders due to service. The VA medical opinions provide specific medical opinions pertinent to the issue on appeal and findings sufficient to make a decision. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Merits of the Claim In his June 2009 claim statement, the Veteran reported that he was seeking service connection for a bilateral vision condition (cataracts/glaucoma). In his October 2009 notice of disagreement, he claimed that he underwent a surgical procedure for his eyes while on active duty and that his eye sight had "decreased significantly since." In his September 2010 substantive appeal (VA Form 9), he claimed that his eye condition was a direct result of exposure to environmental elements, such as cold and wind while working outdoors as an aircraft mechanic. Under applicable law, service connection is granted if the evidence establishes that coincident with his service, the Veteran incurred a chronic disease or injury, or had a preexisting injury permanently aggravated, in the line of duty of his active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for certain chronic diseases, including arthritis, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If there is no showing of a chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection can also be found for any disease diagnosed after discharge, if the evidence establishes it was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires: (1) medical evidence of a current disability, (2) medical evidence, or lay testimony in some cases, that the injury or disease was incurred or aggravated during service, and (3) medical evidence of a nexus between the current disability and the in-service injury or disease. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The service treatment records document treatment for a pterygium of the right eye, which was surgically treated in January 1962. In a February 1962 service treatment record, an examiner noted that the eye was completely healed. In his December 1974 separation examination report, the examiner noted that the Veteran had worn glasses since 1954, had a McReynolds transplant of the pterygium of the right eye in 1962 with no complications and no sequellae. The examiner noted that the Veteran had defective visual acuity of both eyes, which was corrected to 20/20 for each eye. In his report of medical history, the Veteran reported eye trouble and the examiner again noted that the Veteran had worn glasses and received a transplant of pterygium with no complications and no sequellae. Prior to his August 1975 separation, the Veteran eyes were examined a final time on August 7, 1975. The Veteran denied visual complaints and the examiner noted that the Veteran was to receive glasses due to excessive scratches. The examiner provided a prescription for eye glasses and did not note the presence of any other eye disorder. In an October 1975 VA medical record, an examiner provided an eye examination and found the Veteran to have refractive error with presbyopia. The Veteran received a VA examination in December 1975. The examiner noted the prior pterygium of the right eye, with post operative residuals manifested by a minimal scar. The examiner found him to have a refractive error with well corrected presbyopia and astigmatism and that "he has no eye problems". The record does not document any other complaints of, or findings pertaining to, the eyes for several decades following the Veteran's discharge from service. Private medical records from the Emerald Coast Eye Institute, P.A. document continued treatment for the eyes, including from October 2000 until December 2010. In October 2000, the private medical provider noted that the Veteran had been referred to the provider for a glaucoma check and found suspected cataracts or glaucoma. In April 2001, the private medical provider noted a family history of glaucoma. The Veteran received surgery for glaucoma of the right eye in August 2008 and to the left eye in September 2008; he had preoperative and postoperative diagnoses of angle close glaucoma for each eye. In September 2009, the medical provider noted findings of cataracts, macular pucker and primary open angle glaucoma - stable. In April 2010, the examiner noted that the Veteran had bilateral pseudophakia. In a December 2010 record, the examiner noted findings of macular pucker, glaucoma and dry eye syndrome. In an August 2008 VA medical record, the Veteran reported a past medical history of glaucoma since 1975. The medical provider found bilateral immature cataracts and diagnosed him with a history of glaucoma and current bilateral immature cataracts. The Veteran received a VA examination in March 2011, which included a claims file review. The VA examiner noted a report of a right eye pterygium surgery in service and the more recent cataract extraction and bilateral intraocular lens (IOL) implantation and subsequent treatment. The Veteran denied having any additional eye injury, surgery or disease following service. The examiner found no permanent negative consequence from the pterygium surgery for the right eye. The examiner also found that the status post bilateral cataract extraction, bilateral laser treatment for glaucoma, and the injection to right eye was not aggravated or caused by military service or the right eye pterygium surgery. The March 2011 VA examiner again reviewed the Veteran's claims file in April 2012, which included a review of the more recently received private medical records from the Emerald Coast Eye Institute, P.A. The examiner again noted the history of in-service right eye pterygium surgery, that the Veteran was status post a 2008 cataract extraction and IOL for each eye and a 2005 peripheral iridotomy for narrow angle glaucoma for each eye. In the April 2012 addendum opinion, the March 2011 VA examiner noted that the Veteran's bilateral visual acuity had been 20/15 in 2002, and thus found that acuity of 20/30 in the right and left eye was not caused by or a result of pterygium surgery of the right eye. The VA examiner further found that the status post cataract extraction and IOL of each eye was not caused by or a result of military service. The examiner also explained that military service duties of an aircraft mechanic, including exposure to cold and hot weather, strong winds, aircraft fuels and chemicals, and other such factors were not particular risk factors for cataract development. The examiner further noted that the Veteran did not have cataracts removed until around 2008, when he was around 77 years of age, which would be consistent with normal, age-related cataracts. The March 2011 VA examiner appears to have wanted to apply similar reasoning for the status post laser iridotomies for narrow angle glaucoma and diagnoses of open angle glaucoma. The examiner found that they were not caused by duties of an aircraft mechanic, including exposure to cold and hot weather, strong winds, aircraft fuels and chemicals, and other such factors. The VA examiner further noted a family history of glaucoma (mother) supported a genetic contribution to the development of it and that increasing age is a risk factor for glaucoma. The examiner noted that the Veteran was around 74 years of age at the time of the narrow angle glaucoma treatment. The examiner explained that as we grow older, the lens inside our eyes gets larger, increasing the risk for pupil block, that the anterior chamber tends to become increasingly shallow, and that the drainage angle may narrow as we age. In April 2012, the March 2011 VA examiner further opined that macular degeneration for both eyes and cystoid macular edema was not caused by or a result of military service, including military service duties of an air craft mechanic (exposed to hot and cold weather, strong winds, aircraft fuels and chemicals). The examiner noted that increasing age is a risk factor for macular degeneration and status post cataract extraction is a risk factor for cystoid macular edema. That VA examiner then concluded that the Veteran's status post cataract extraction, glaucoma, cystoid macular edema and macular degeneration were not caused by or a result of pterygium right eye. They were entirely different, unrelated conditions. The Veteran also received a VA optometry consultation in March 2012. The VA medical provider found him to have refractive error, but no diabetic eye disease. VA obtained a medical opinion that was made in February 2013, which included a review of the claims file. The February 2013 VA medical opinion provider found that none of the Veteran's diagnosed eye disorders developed in or was caused by service, including after consideration of the development and treatment for a right eye pterygium in service and the claims of exposure to environmental elements, including cold and wind, while working outdoors as an aircraft mechanic. The February 2013 VA medical opinion provider found no evidence that cataract formation was in any way related to pterygium or its treatment. She found no medical causal or etiological relationship between pterygium and cataract formation and explained that the pterygium had been removed in January 1962, was completely healed by the next month, that a subsequent October 1975 record showed only minimal residual scarring of the nasal conjunctiva and that visual acuities were consistently 20/20 and even 20/15 subsequently until 2001. Furthermore, she found that the cataracts did not form until 2001 and did not progress to necessitate surgery until 2009, when the Veteran was 78 years old. She explained that the Veteran's age, the nuclear sclerotic nature of the cataracts and their slow progression were consistent with the normal aging of the lens producing cataracts. As such, she found that it was more likely than not that the Veteran's cataract and the subsequent extraction of it represented a natural progression of age. The February 2013 VA medical opinion provider similarly found that the Veteran's glaucoma was not caused by or a result of the development of a right eye pterygium or its treatment. She found no medical causal or etiological relationship between pterygium or exposure to environmental elements, including cold and wind, and glaucoma. She then explained that the pterygium had completely healed by February 1962 and that glaucoma was not suspected until 2000, 38 years after its resolution and 25 years after discharge. She further noted that the Veteran had an increased risk for glaucoma genetically, based on family history, and that the Veteran's age was another known risk factor. Furthermore, the narrow angle of the glaucoma was found following cataract formation, which causes angles to narrow. In regards to the cystoid macular edema diagnosis, the February 2013 VA medical opinion provider found no medical causal or etiological relationship between it and pterygium or environmental exposure to elements. She further noted that it developed after cataract surgery and was a known risk of such surgery. She also noted that the Veteran's cataract surgery was more complex than average due to his use of Flomax and small pupils, which increased the risk of cystoid macular edema. The February 2013 VA medical opinion provider found that age-related macular degeneration was diagnosed 30 years following discharge (when the Veteran was 64 years old) and that age is a risk factor for such macular degeneration. She then noted that the Veteran has diagnoses of status post cystoid macula edema (successfully treated) and macular pucker/epiretinal membrane. She found that more likely than not any effect on the macula was due to residua of the cystoid macula edema and/or pucker. Furthermore, the Veteran's corrected vision at his last March 2012 examination showed that any effect on the Veteran's vision was minimal and not disabling. As for the diagnosis of dry eye syndrome, the February 2013 VA medical opinion provider found no evidence that it was related to pterygium or its treatment. She explained that the Veteran had only been diagnosed once, at 79 years old, and that aging is a known cause of decreased tear production and dry eye syndrome. She further explained that the pterygium had completely healed and that dry eye was diagnosed 25 years after discharge. In regards to the diagnosis of macular pucker/epiretinal membrane the February 2013 VA medical opinion provider found no evidence to suggest it was causally related to pterygium. There was no medical relationship between those disorders and the pterygium and its treatment or to exposure to environmental elements. The examiner noted that it was diagnosed years following the resolution of the pterygium problem and 33 years after discharge. As to the diagnosis of posterior vitreous detachment, the VA opinion provider found no evidence to suggest it was causally related to pterygium or its treatment or to exposure to environmental elements. There was no medical relationship between pterygium and its treatment or to exposure to environmental elements. Additionally, she found that it is a common finding in middle aged and elderly patients and that the Veteran was 78 years old at his diagnosis. For the pseudophakia diagnosis, the February 2013 VA medical opinion provider found that it was an intraocular lens implanted in the eye during or after surgery for removal of a cataract. As an implanted medical device, it was unrelated to pterygium or its treatment or environmental elements. Furthermore, the posterior chamber intraocular lens of both eyes was simply a more specific type of intraocular lens, but similarly unrelated to pterygium or its treatment or environmental elements. Similarly, the VA opinion provider found no evidence to suggest that the Veteran's posterior capsular haze was related to pterygium or its treatment. There was no medical causal relationship between it to pterygium or exposure to elements. The opinion provider explained that it consists of having the remaining posterior capsule of the cataract, which is deliberately left after cataract surgery, become hazy and thus a direct consequence of such surgery. For service connection purposes, the first two elements for service connection are met. First, the Veteran has several current diagnoses relating to his eyes. He has current diagnoses of status post cataract extraction, glaucoma (September 2008 Surgical Specialists operative reports), cystoid macular edema and macular degeneration (April 2012 VA examination), dry eye syndrome (December 2012 Emerald Coast Eye Institute record), macular pucker/epiretinal membrane (September 2009 Emerald Coast Eye Institute record), pseudophakia (April 2010 Emerald Coast Eye Institute record), and posterior vitreous detachment and posterior capsular haze (November 2011 Retina Specialty Institute record). The Board notes that the Veteran has diagnoses of refractive error and presbyopia (March 2012 VA medical record). In regards to refractive error and presbyopia, service connection is not warranted. A refractive error is not subject to service connection. See 38 C.F.R. § 3.303(c). Myopia, astigmatism, and presbyopia are refractive errors. (See http://www.merck.com/mmpe/sec09/ch099/ch099a.html). In claims for service connection for refractive errors (i.e., myopia, astigmatism, and presbyopia) the law is dispositive, the claims must be denied because of lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The second element has also been met, as the Veteran has a documented in-service removal of a pterygium of the right eye. Additionally, the Board concedes the Veteran's claimed exposure to environmental elements, including cold and wind, while working outdoors as an aircraft mechanic in service, as it finds such exposure to be consistent with his service. However, the Board finds that the Veteran has not met the third element of service connection. There is no medical evidence of a nexus between the current disability and the in-service injury or disease. The competent medical opinions addressing that question found no connection between the Veteran's current eye disorders and service. None of the medical opinions of record support the Veteran's claim that his decreased visual acuity developed due to service, including the removal of his right eye pterygium or his exposure to the outdoor elements. The March 2011 VA examiner, in an April 2012 addendum opinion, concluded that status post cataract extraction, glauocma, cystoid macular edema and macular degeneration are not caused by or a result of pterygium right eye as they are entirely different conditions and unrelated. As described in more detail above, the VA examiner also explained how he reached those opinions. The February 2013 VA medical opinion provider similarly found that the diagnosed status post cataract extraction, glaucoma, cystoid macular edema, macular degeneration, dry eye syndrome, macular pucker/epiretinal membrane, pseudophakia, posterior vitreous detachment and posterior capsular haze were not caused by or a result of right eye pterygium or its treatment in service. The opinion provider further explained, as discussed above, why those disorders were also not caused by the Veteran's service (including exposure to the elements while outdoors) and/or explained what other non-service-related factors likely caused the disorders (such as age, family history, and medical history). As for the lay assertions of record, the Board notes that the Veteran is certainly competent to report matters within his personal knowledge, to include his reports of his perception of his visual acuity. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Board emphasizes that the claim under consideration turns, fundamentally, on the matter of whether the Veteran has an eye disability for which service connection is sought, and, if so, whether there exists a medical relationship between such current eye disability and service. Diagnosis and etiology of complex disabilities not capable of being established on the basis of lay observation or other sensory perception, alone, are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative is shown to be other than a layperson without appropriate medical training and expertise, neither is competent to render a probative (i.e., persuasive) opinion on any medical matter upon which this claim turns. See Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board observes that following the February 1962 surgery for a pterygium of the right eye post-surgery medical records, both during service and for decades after service, do not document continued treatment for an eye disorder, other than the documented need for eye glasses due to refractive error. Indeed, the December 1975 VA examination, obtained shortly after the August 1975 separation from service only diagnosed the Veteran with a refraction error, but found the Veteran to not have any eye problems. Subsequent medical records similarly noted treatment for a refractive error. However, as previously noted, a refractive error (i.e., myopia, astigmatism, and presbyopia) is not subject to service connection. See 38 C.F.R. § 3.303(c). Furthermore, in regards to the Veteran's other diagnosed eye disorders, as previously noted, the competent and persuasive medical evidence of record consistently found such disorders to not be due to service, including the pterygium of the right eye or the exposure to the elements caused from being outdoors while working as an aircraft mechanic, and/or found the disorder to be more likely due to non-service related factors. There is no competent medical opinion evidence of record supportive of the Veteran's claim that any of his current eye disorder is etiologically related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). The Veteran's claim for service connection for a bilateral eye disorder is denied. [Continued on the next page] ORDER Service connection for a bilateral eye disorder (claimed as bilateral vision condition (cataracts/glaucoma) is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs