Citation Nr: 1320665 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 07-22 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a bilateral eye disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to January 1973. A July 1974 administrative decision found that the Veteran's period of service from April 8, 1970, to January 30, 1973, was discharged under dishonorable conditions. The character of discharge for this period of service was later upgrade to under honorable conditions by the Department of Defense. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). This rating decision also denied service connection for coronary artery disease, status-post myocardial infarction (claimed as a heart condition). Ultimately, the heart claim was granted in a February 2011 Board decision, effectuated by a May 2011 rating decision, and is no longer before the Board. In June 2008, May 2009, and July 2010, the Board remanded this matter for further development, readjudication of the claim and issuance of a supplemental statement of the case, and scheduling of a Board hearing before a Veterans Law Judge. The Veteran testified before the undersigned at a December 2010 videoconference hearing at the RO. A transcript of the hearing has been associated with his claims folder. In February 2011, the Board remanded this matter for further development. In August 2012, the undersigned granted the Veteran's motion for a new Board hearing before a Veterans Law Judge at the RO by videoconference. In September 2012, the Board remanded this matter to schedule the requested videoconference hearing. The Veteran again testified before the undersigned at a December 2012 videoconference hearing at the RO. Again, a transcript of the hearing has been associated with his claims folder. In February 2013, the Board remanded this matter to obtain records from the Social Security Administration (SSA). This appeal was processed in part by using the Virtual VA paperless claims processing system. The documents contained in this system, including the hearing transcript, were reviewed in conjunction with this appeal. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT A bilateral eye disability pre-existed service, did not increase in severity during service, and was not permanently worsened beyond the natural progress of the preexisting disability by the Veteran's military service. CONCLUSION OF LAW A bilateral eye disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in March 2006 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at December 2010 and December 2012 hearings before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's June 2008 remand, VA provided the Veteran with a medical examination in August 2008. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation. Thus VA has complied with the June 2008 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). In compliance with the Board's May 2009 remand, VA readjudicate the Veteran's claim in light of the additional clinical evidence submitted in February 2009 in a May 2010 Supplemental Statement of the Case. Thus VA has complied with the May 2009 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). In compliance with the Board's July 2010 remand, VA provided the Veteran with a video conference hearing in December 2010. Thus VA has complied with the July 2010 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). In compliance with the Board's February 2011 remand, VA provided the Veteran with a medical examination in November 2011. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation. In a November 2011 addendum, this examiner offered an opinion as to the nature of the claimed disability, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. Thus VA has complied with the February 2011 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). In compliance with the Board's September 2012 remand, VA scheduled the Veteran for a December 2012 video hearing. Thus VA has complied with the September 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). In compliance with the Board's February 2013 remand, VA sought and obtained the Veteran's Social Security Administration (SSA) records. Thus VA has complied with the February 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The United States Court of Appeals for Veterans Claims (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). At the December 2010 and December 2012 hearings the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained and sought information as the onset of the disability. Ultimately the claim was remanded for a new examination after the December 2010 hearing. During the December 2012 hearing, the undersigned clarified the Veteran's contentions regarding etiology, specifically his assertions that the military doctors had orally attributed the Veteran's eye disability to his in-service injury despite no reference to this nexus in the service treatment records and that the VA examiner had provided the Veteran with a positive nexus opinion orally despite the opinion contained in his report. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with these duties; they have not identified any prejudice in the conduct of the Board hearings. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Factual History At the time of his April 1970 entrance examination, the Veteran was noted to have bilateral visual defect, with bilateral deficiencies in distant vision (20/70 bilaterally), refraction, and near vision. He passed the color vision test. Shortly thereafter, he was prescribed glasses. Service treatment records dated May 1970 note the Veteran's complaints of constant diplopia and a history of right eye muscle surgery. He was diagnosed with residual esotropia and questionable diplopia, noting that he probably had intermittent diplopia. Service treatment records dated June 1970 note that the Veteran reported seeing four of everything before his operation, after the operation he reported seeing two of everything (diplopia). He preferred fixation with the right eye. The fundi was normal bilaterally. No visuscope was performed, but the Veteran appeared to have right eye macular fixation. There was no explanation for decrease in the right eye visual acuity, right eye fixation, why he had seen four of everything, or his current diplopia. Service treatment records from October 1970 show that the Veteran complained of being hit in the face by a gas heater explosion. Afterwards the aid station placed tetracaine in his eyes. On physical examination, the Veteran's sideburns, eyebrows, and eyelashes were found to be singed. An ophthalmology report a few days later notes the Veteran's complaints of a change in vision since. The ophthalmologist found no evidence of an external problem. Additional records from that date note the Veteran's complaints of seeing four of everything and his assertion that he had had this trouble since he was born. At that time, his eyesight was noted to be 2/400 in the right eye (which the Board presumes to be a transcription error intended to read 20/400) and 20/25 in the left. An ophthalmology record from July 1971 provides a history of esotropia since birth or early childhood and diplopia for as long as he could remember. He reported having eye surgery in 1969, which was prior to service, for crossed eyes and complaints of diplopia ever since. The Veteran was prescribed glasses, but he lost them four months prior and had not attempted to replace them. The Veteran was found to have myopia with astigmatism and alternating esotropia. The examiner questioned the Veteran's reports of constant diplopia given that he did not seem as affected by this symptom as one with constant double vision would be expected to be and the examiner felt that the Veteran may have been malingering. At that time, his eyesight was noted to be better than 20/200 in the right eye and 20/70 in the left eye. The Veteran's July 1971 separation examination was noted to have myopia with astigmatism and alternating esotropia. His uncorrected distance vision was 20/200 in the right eye and 20/70 in the left eye. An additional in-service examination in December 1972 notes esotropia. In his accompanying report of medical history, the Veteran stated that he was advised to have surgery on his left eye approximately four years earlier, but the army refused to provide that surgery. At that time, his uncorrected distance vision was recorded at 20/800 in the right eye and 20/25 in the left eye. SSA Physical Residual Functional Capacity Assessments provided in August 2002 and February 2003 note no visual limitations established. Private treatment records dated August 2002 attribute various symptoms, including left eye blurred vision, to a right hemispheric stroke. An August 2003 treatment record notes decreased visual acuity and monocular diplopia. Other records from that month refer to diplopia due to a stroke. In his April 2006 lay statement, the Veteran reported that his doctor stated that there was nothing else that could be done for his eye condition and prescription glasses would not help. In a May 2006 response to VA's records request, Vanderbilt Hospital stated that they had no records relating to the Veteran. An August 2008 record shows diplopia. The Veteran underwent a VA examination in August 2008. At that time he was diagnosed with correctable refractive error (hyperopia and presbyopia). This examiner also noted that the Veteran had comitant left esotropia at distance with left hypertropia that appeared to be congenital based on references in the Veteran's service treatment record and comitance, noting that a traumatic etiology would likely present as non-comitant tropia. This examiner was unsure why the Veteran was unable to see a single image with prism correction, unless he was malingering. In his December 2010 testimony, the Veteran reported headaches, double vision, and difficulty seeing after this injury. He further stated that he was treated at a hospital in Vietnam for these issues. He stated that his eyes were wrapped and he was hospitalized a few days before returning. He further testified that he later sought treatment for his eyes at Vanderbilt Hospital in Nashville. The Veteran reported undergoing eye surgery in 1973 for his headaches. The Veteran underwent another VA examination in November 2011. That examiner diagnosed the Veteran with diplopia. In an addendum opinion later that month, this examiner found that the Veteran's diplopia clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. Specifically, this examiner noted that the service treatment records indicated congenital diplopia without worsening during service, the recorded account of the Veteran's in-service injury show treatment with anesthetic eye drops only, and the post-service treatment records did not indicate a worsening of the Veteran's diplopia symptoms. In this addendum opinion, the examiner also found that the Veteran's cataracts (early-stage nuclear sclerosis) were not caused by the Veteran's military service or his service connected diabetes mellitus, noting that it was age-related as this type of cataract is typically not associated with diabetes mellitus or trauma. This examiner also confusingly provided a positive nexus opinion for the already service connected diabetes mellitus, type II, while noting in the accompanying rationale that there was no evidence of diabetic retinopathy, ocular manifestations, or visual impairment associated with diabetes mellitus. At his December 2012 hearing, the Veteran testified that his vision was 20/20 prior to service and that he did not use corrective lenses. In recounting his in-service injury, the Veteran stated that he did not know what happened after the explosion because he awoke in the hospital. He reported that he stayed there for a few days and then his eyesight started changing and he began to get migraine headaches. Specifically, he reported double vision and occasional blurriness. He stated that he sought additional treatment a few months later and that a military doctor had told him that he would eventually lose his eyesight starting with double vision, followed by triple vision, and then blindness. He also stated that the military doctors related his double vision to the explosion in service. When asked about post-service treatment, the Veteran reported having surgery on his eyes in the 1980s at Vanderbilt to ease his continuous migraines. The Veteran reported that this surgery was successful in terms of his migraines, but his vision was not improved. He testified that eyeglasses could not help his fluctuating eyesight and stated that it was continuously worsening. The Veteran also reported that the November 2011 VA examiner had told the Veteran that his eye condition was related to the in-service explosion, but did not write that opinion in the report. In his May 2013 statement, the Veteran stated that his irregular (blurry) vision and headaches began after his in-service injury. He reported being treated with eye drops and medicine for his headaches. He also reported being told that eyeglasses would not correct the problem, surgery was necessary to treat his headaches, and his eye disability would likely deteriorate with a probability of permanent blindness. He stated that he underwent surgery in 1973 to relieve his headaches. Finally, the Veteran stated that, despite the reports to the contrary, the November 2011 VA examiner had told him that his eye disability was caused by the in-service injury. Analysis The Veteran originally applied for service connection for an eye disability in February 1976. This claim was denied because of a prior determination that the Veteran's period of service from April 8, 1970, to January 30, 1973, was discharged under dishonorable conditions. See July 1974 administrative decision. The character of discharge for this period of service was later upgrade to under honorable conditions by the Department of Defense. See July 1977 letter. The Veteran filed a new claim of service connection for an eye disability in January 2006. During the appellate period the Veteran has been diagnosed with diplopia, cataracts, and decreased visual acuity. In this case, the Veteran was noted to have bilateral vision defect on his April 1970 entrance examination. Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C.A. § 1132; 38 C.F.R. § 3.304(b). The April 1970 entrance examination noted bilateral deficiencies in distant vision, refraction, and near vision, but the Veteran passed the color vision test. Moreover, the service treatment records refer to the Veteran's diplopia as being from birth (congenital) and the November 2011 VA examiner finds that the Veteran's diplopia clearly and unmistakably existed prior to service. Congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9; see also Quirin v. Shinseki, 22 Vet. App. 390, 394, 396, 397 (2009); Terry v. Principi, 340 F.3d 1378, at 1385-86 (Fed. Cir. 2003)(holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). Thus, the presumption of soundness does not apply to this condition and it is found to pre-exist service. Although a bilateral eye disability pre-existed service, service connection is still available if this disability was aggravated during service. In the case of a congenital defect, service connection is only possible when the record contains evidence of a superimposed in-service injury or disease that caused additional disability. See 55 Fed. Reg. 45711 (Oct. 30, 1990)(citing to VAOPGCPREC 82-90 (July 18, 1990)). In this regard, the service treatment records indicate that the Veteran was hit in the face by a small heater explosion, singeing his sideburns, eyebrows, and eyelashes. Additionally, the Veteran is competent to provide lay evidence regarding this accident and so the question becomes whether his lay evidence is credible. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the Veteran's lay description of this accident has changed in the retelling. Specifically, during the course of the appeal, his lay statements have altered to suggest increasingly more severe initial injuries, culminating in that December 2012 testimony that he lost consciousness and awoke in the hospital. The contemporaneous medical record noted no loss of consciousness or hospitalization. The Court has cautioned the Board against determining that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this case however, the lay evidence is accompanied by contemporaneous medical evidence and this contemporaneous medical evidence describes a different set of circumstances, injuries, and treatment than that described by the Veteran. This contradiction combined with the pattern of increasingly harrowing lay accounts, renders the Veteran's lay statements not credible. Thus, the Board accepts only the description of this accident within the service treatment record and not the later lay statements provided by the Veteran. The question then becomes whether this in-service injury resulted in an increase in the Veteran's pre-existing bilateral eye condition. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In this regard, the Board notes the Veteran's in-service remarks that he had diplopia since birth and his statement that he had previously seen four of everything. Thus, an increase in this disability is not conceded. Furthermore, the November 2011 examiner specifically found no aggravation of this disability due to the in-service injury. In support of this opinion, the examiner noted that the service treatment records show treatment with anesthetic eye drops only following this injury. In his lay statements and testimony, the Veteran has reported a direct causal link between his in-service injury and his blurry vision. Likewise, the Veteran has reported receiving unwritten confirmation of his causal connection from medical professionals, including the November 2011 VA examiner. The Board notes that, under Jandreau, the Veteran is competent to provide lay evidence of etiology in circumstances in which nexus is obvious merely through lay observation, such as the immediately observable cause-and-effect relationship he has described. 492 F.3d 1372. Similarly, he is competent to provide lay evidence of information he was provided. Again, the question becomes whether this lay evidence is credible. Taking the Veteran's assertion of an immediately observable cause-and-effect relationship first, the Board notes the Veteran's assertions that his vision was 20/20 prior to the accident and diminished immediately thereafter. This is directly contradicted by his service treatment records, which show bilateral visual defect at the time of his entrance examination six months prior and complaints of diplopia in the intervening months. Thus, the Veteran's credibility is diminished by the inaccurate history he has provided regarding the state of his vision at entry into active duty service. Similarly, the records surrounding this accident do not show eye treatment beyond tetracaine immediately following the explosion. While the service treatment records do note the Veteran's complaints of worsening vision thereafter, the ophthalmologist who treated him following this accident did not find any evidence of an external problem. Therefore, the weight of the evidence is against the Veteran's lay statements regarding an immediately observable cause-and-effect relationship between his in-service injury and his blurry vision (diplopia). Turning to the Veteran's assertion that he was provided oral confirmation of a positive medical nexus between his in-service injury and his blurry vision (diplopia) that was not reduced to writing, the Board finds this assertion not credible. This assertion is directly contradicted by the written report of record. As described above, the Veteran has repeatedly been found to be a poor historian regarding both the circumstances of his injury and the state of his vision prior to that injury. The Veteran has complained that multiple doctors, in this case military and VA doctors, have fraudulently conspired to deprive him of benefits is not supported by any evidence beyond his lay statements. See e.g., May 2013 statement. While the Board appreciates the Veteran's frustration, such a serious allegation requires more supporting evidence. Therefore, the Board finds the Veteran's lay statements regarding an orally given positive medical opinion from the November 2011 examiner to be not credible. Furthermore, the Veteran has been encouraged throughout the appeals process to submit private treatment records and opinions. Any perceived bias on the part of the VA and military doctors presumably would not be a factor in a private ophthalmologist's opinion. Thus far, he has not submitted any positive medical opinion to contradict the November 2011 VA examiner's findings. Thus, while the record supports the Veteran assertion of an in-service injury, the weight of the evidence is against a finding that the injury worsened his underlying bilateral eye disability. Therefore, the evidence of record shows that the Veteran's bilateral eye disability pre-existed service and was not aggravated by active duty service. For these reasons and bases, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral eye disability. Thus, the appeal must be denied. ORDER Service connection for a bilateral eye disability is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs