Citation Nr: 1322395 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 10-00 137 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right eye disorder. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from May 1980 to June 1996. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2008 decision by the RO which, in part, denied service connection for a right eye disorder. The Board remanded the appeal for additional development in April 2011 and December 2012. FINDING OF FACT The Veteran's benign choroidal nevus of the right eye is a congenital defect and was not subject to a superimposed injury or disease that caused additional disability during service. CONCLUSION OF LAW The Veteran does not have a disease or disability of the right eye which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in December 2007. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs) and all VA medical records have been obtained and associated with the claims file. The Board also reviewed the Veteran's Virtual VA electronic medical records. Additionally, the Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issue on appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced her in the adjudication of her appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). Also, the claim was remanded for additional development twice during the pendency of this appeal. The Veteran's VA treatment records were obtained and associated with the claim file, and she was scheduled for a VA examination in August 2011, in compliance with the remand directives. However, the Veteran did not report for the scheduled examination and did not contact VA to request to reschedule. The Board remanded the appeal again in December 2012, for clarification of the medical opinion rendered by the VA ophthalmologist in October 2009. Under the circumstances, the Board finds that the AMC has substantially complied with the multiple remand orders and that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Service Connection - In General 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. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of 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 v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. An alternative method of establishing the second and third Shedden/Caluza elements for a chronic disability listed under 38 C.F.R. § 3.309(a), is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013); see also, Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition listed under 38 C.F.R. § 3.309(a) was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay 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 professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). Factual Background & Analysis The Veteran contends that she was treated for right eye problems in service and was diagnosed with a benign choroidal nevus, and believes that service connection should be established for any current right eye abnormalities. Regarding the Veteran's contentions, while she is competent to describe the symptoms she has experienced, the etiology of any current right eye disability may not be diagnosed via lay observation alone as this involves a complex medical matter, and she is not shown to have the expertise to provide a complex medical opinion concerning the nature or etiology of the claimed disability. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). The STRs showed that the Veteran was treated for complaints of intermittent floaters and some scaly dermatitis on the eyelids and cheek area in May 1991. The assessment was probable vitreous floaters and dermatitis. When seen in March 1992, the Veteran complained of pain and irritation in her left eye and said that she had a foreign body sensation while showering a couple of weeks earlier. (The STRs showed treatment for a corneal abrasion on the left eye in July 1990, and that it resolved within a few days.) An examination revealed a 5-6DD nevus in the right eye and probable abrasion of the left eye. The assessment included choroidal nevus of the right eye. Follow-up treatment records showed no significant changes in the right eye nevus on subsequent occasions in January 1993, March 1995, May 1996, and May and June 1997. The May 1996 optometry report described a large (5DD) pigmented nevus at 5 o'clock and a small (1/3DD) nevus at 2 o'clock in the right eye. The examiner commented that the nevus was unchanged from a 1992 photograph. The periphery appeared intact and slit lamp examination showed the cornea, conjunctiva and lens were clear, bilaterally. The assessment was stable right eye nevus. The assessment on the May 1997 treatment note was nevus versus striated retinal pattern in the right eye (? congenital). When examined by VA in September 2009, the ophthalmologist indicated that the claims file was reviewed and included a description of the Veteran's complaints, medical history and current findings. Other than a 5DD flat pigmented lesion about 3DD from the disc at 5 o'clock, funduscopic examination of the right eye was within normal limits. The Veteran reported a 10-15 year history of floaters, bilaterally, but denied any curtains, veils, photopsia. There was no visual field defects, and slit lamp examination showed normal sclera/conjunctiva, cornea, anterior chamber and iris. Uncorrected distant and near vision in the right eye was 20/30 and 20/40, respectively, each corrected to 20/25. There were no physical findings of abnormal accommodation, chronic conjunctivitis, residuals of eye injury, lagophthalmos, symblepharon, ptosis or nystagmus. The diagnoses included benign choroidal nevus of the right eye. The examiner indicated that there were no problems associated with the right eye nevus. In an addendum report, dated in October 2009, the VA ophthalmologist opined that the Veteran's benign choroidal nevus of the right eye - also described in the record as a large pigmented nevus, was unrelated to any prior injury, was most likely congenital in origin, and was not aggravated by military service. At the direction of the December 2012 Board remand, the Veteran's claims file was forwarded to a VA optometrist for an opinion as to the nature and etiology of the Veteran's right eye disorder. Specifically, whether the benign choroidal nevus of the right eye was a congenital disease or defect. If a disease, the examiner was asked to indicate whether it was aggravated by service. If the nevus was a defect, the examiner was asked to indicate whether there was any additional disability superimposed on the eye in service. In a February 2013 report, the VA optometrist explained that a benign choroidal nevus is a congenital defect that can be likened to a freckle on the skin, and does not cause disability. The examiner opined that the Veteran's right eye nevus was a congenital defect and not a disability, and that it was not aggravated by service. The examiner reiterated that the Veteran's nevus was unrelated to any prior eye injury or disease. Like a freckle on the skin, it simply needed to be monitored. The Board finds the VA opinions, particularly the February 2013 opinion persuasive, as it was based on a thorough review of the record and included a detailed discussion of all relevant facts. The examiner offered rational and plausible explanation for concluding that the Veteran's benign choroidal nevus was a congenital defect and not a congenital or developmental "disease," and that it was unrelated to any prior eye injury or disease which means that there is no evidence of any superimposed disease or injury due to service. See Wray v. Brown, 7 Vet. App. 488, 493 (1995); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.). Further, the Veteran has not presented any competent medical evidence to dispute that opinion. Thus, the most probative evidence of record is the February 2013 VA opinion. In order to establish service connection, there must be: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). However, some disabilities, such as congenital or developmental defects and refractive error of the eye, are not deemed diseases or injuries for VA purposes. 38 C.F.R. § 3.303(c) (2012). Under certain circumstances, service connection may be granted for such disorders if they are shown to have been aggravated during service. See 38 C.F.R. § 3.303(c); VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). In a precedent opinion, VA's General Counsel indicated that, for service connection purposes, there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect." Congenital diseases may be service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental "defect," on the other hand, may not be service connected in its own right. However, service connection may be granted for additional disability due to disease or injury superimposed upon such defect in service. VAOPGCPREC 82-90. Therefore, absent superimposed disease or injury, service connection may not be allowed for a congenital or developmental defect as they are not a disease or injury within the meaning of applicable legislation relating to service connection. Id. In the present case, the Veteran's benign choroidal nevus of the right eye is a congenital defect, and there is no competent evidence of any additional superimposed disease or injury associated with the nevus in service. Therefore, service connection cannot be established. (CONTINUED ON NEXT PAGE) ORDER Service connection for a right eye disability is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs