Citation Nr: 1322407 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 10-20 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral defective vision. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from March 1952 to March 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In April 2010, the Veteran testified at a hearing before a Decision Review Officer. A transcript of the hearing has been associated with the claims file. The issue of service connection for bilateral defective vision was remanded in January 2013, April 2013 and May 2013 to afford the Veteran a VA examination. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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). FINDINGS OF FACT 1. The Veteran's myopia, astigmatism and presbyopia are refractive errors that are congenital and developmental in nature; other (superimposed) disability of the eyes is not shown. 2. Bilateral cataracts were not present during service and the currently diagnosed cataracts did not develop as a result of any incident during service. CONCLUSION OF LAW Bilateral defective vision not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The VA has duties 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A letter dated in May 2008 complied with VA's duty to notify the Veteran with regards to the issue adjudicated herein. Specifically, this letter apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. It also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), personnel records, post-service medical records and also secured examinations in furtherance of his claim. Pertinent VA examinations were obtained in February 2013 with an addendum medical opinion May 2013 and another examination in June 2013. 38 C.F.R. § 3.159(c)(4). The June 2013 VA examination obtained in this case is sufficient, as the examiner conducted a complete examination, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorder. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). II. Analysis The Veteran contends that he has bilateral defective vision that is related to his military service. He contends that he had vision problems in service and that he did not receive needed eyeglasses in service. See, e.g., April 2010 Hearing Transcript (H.T.) at 2-3; May 2010 substantive appeal. 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. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). For purposes of entitlement to benefits, refractive errors of the eyes are congenital or developmental defects and are not a disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9 (2012); VA ADJUDICATION PROCEDURE MANUAL (M21-1MR), PART III, Subpart iv, Ch. 4, Section B, para. 10.d. In the absence of a superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9. Thus, VA regulations do not contemplate service connection for refractive error of the eyes unless such defect was subjected to a superimposed disease or injury, which created additional disability. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711 ) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). The Veteran's enlistment examination in March 1952 showed that ophthalmoscopic examination and ocular motility were normal; however, the Veteran's eyes were abnormal. Defective vision in the right eye of 20/36 correctable to 20/20 and in the left eye of 20/100 correctable to 20/20 was noted. He had a profile of E-2. The "PULHES" medical profile system is designed to reflect the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The ""E" is indicative of the "eyes." See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). Therefore, this examination shows that the Veteran did have visual defect. In his accompanying report of medical history, the Veteran answered yes to having eye trouble. Myopia was noted. The Veteran reported wearing glasses for the past two years. A notation indicates that there was no organic eye disease. The Veteran's discharge examination in March 1954 showed that he had normal eyes and ocular motility; there was no ophthalmoscopic examination. He had distant vision in his right eye of 20/50 and in his left eye of 20/40. A notation indicates that vision was not correctable and not considered disabling. Refraction and the Veteran's near vision were not provided. None of the Veteran's STRs shows any treatment for his eyes or any vision complaints. There is no indication that the Veteran incurred any injury to his eyes or that he obtained glasses in service. According to post-service medical records, the earliest complaint of a vision problem is a VA optometry consultation in December 2003. The Veteran was shown to have refraction at that time and was prescribed bifocals. At an eye consultation in July 2009, the Veteran reported decreased visual acuity in each eye for the last two to three months. He reported noticing a sudden change. He reported no history of eye disease or surgery. His last eye examination was four years earlier. The Veteran was diagnosed with cataracts in each eye and presbyopia. In June 2010, the Veteran had the cataract removed from his right eye. One of the June 2010 treatment records show that the Veteran reported a painless progressive loss of vision in his right eye for one year; that record reveals a diagnosis of dense senile cataract. Records beginning in December 2011 show a diagnosis of pseudophakia in the right eye and cataract in the left eye. VA treatment records dated through March 2012 continue to show diagnoses of a left eye cataract and right eye pseudophakia. None of the Veteran's treatment records contain any opinion regarding the etiology of a diagnosed eye disorder. The Veteran was afforded a VA examination in February 2013. He was diagnosed with pseudophake. The Veteran claimed that he did not get glasses fast enough while on active duty. After discharge, he waited another 12 months before purchasing eyeglasses on his own. The Veteran had excellent visual acuity even after his cataract surgery. The possible "delay" mentioned did not in any way affect his normal age related progression. The examiner noted the Veteran's entrance examination findings. The examiner also noted that the claims file did not indicate if the Veteran did or did not receive eyeglasses. Following examination, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale was that the supposed delay in obtaining glasses in no way altered or affected the natural progression of his refractive error. The Veteran continued to fully enjoy excellent visual acuity in each eye. However, this examination did not address the Veteran's discharge examination findings. As the medical opinion was found to be inadequate by the Board in April 2013, an addendum opinion was obtained in May 2013. The addendum essentially restated the February 2013 opinion and was again found inadequate by the Board in May 2013. A new VA examination was afforded to the Veteran in June 2013. The Veteran was diagnosed with senile cataract in both eyes and pseudophakia in both eyes. The Veteran's medical history included that he entered service wearing glasses to correct his congenital errors of refraction (myopia and astigmatism). His corrected vision was 20/20 in both eyes. He left the service two years later at age 19 wearing the same old glasses with vision of 20/50 in the right eye and 20/40 in the left eye. He still had correctable vision at discharge if the glasses had been updated, which he did a year later. Even 50 years later in 2003 he had excellent corrected vision of 20/25 in each eye at an examination at the VA. There was no other eye condition noted at that time other than myopia and astigmatism. Age related cataracts were diagnosed in 2009. The right cataract was surgically removed in 2010 and the left in 2012. Again, no other eye condition was noted then or at that day's examination. During his service, nothing else existed than the natural progression of myopia in an 18 year old, which would not produce cataracts. That day's vision was correctable to 20/20 in each eye. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner reported that while in the service, there was no eye condition other than congenital errors of refraction. There was no non-correctable visual impairment at the separation examination. The vision reported was 20/50 in the right eye and 20/40 in the left eye with either no glasses or glasses that were four years old. No attempt was made to provide a current refraction to obtain best corrected vision. In 2003, a VA eye examination showed corrected vision of 20/25 in each eye and no non-correctable visual impairment. There was no evidence in that day's eye examination of any past or present non-correctable eye condition. The examiner further opined that the only eye condition while in service was a natural progression of congenital errors of refraction (myopia) in a teenager. That would have no etiological relation to the development of senile cataracts, which was an age related condition. Pseudophakia was the artificial lens placed in the eye after the cataractous lens had been surgically removed, which in the Veteran's case had produced 20/20 corrected vision in each eye. Based on a review of the evidence, the Board concludes that service connection for bilateral defective vision is not warranted. Although the Veteran had defective vision in service and has post-service diagnoses of myopia, astigmatism, presbyopia, cataracts and pseudophakia, the evidence does not show that any current vision disorder is related to his military service. Initially, with regards to the Veteran's in-service defective vision, he was shown to have congenital errors of refraction. In the absence of a superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9. In this case, the evidence fails to show a superimposed injury. Indeed, the Veteran has not contended injuring either eye in service. Rather, the Veteran reported to the February 2013 examiner that a delay in obtaining eyeglasses caused his current visual problems. The Veteran's STRs are silent for any superimposed injury to his eyes. No medical professional has provided any opinion indicating that the Veteran had an in-service superimposed injury to his eyes. Therefore, to the extent that the Veteran's defective vision includes refractive error, service connection for such refractive error cannot be granted as a matter of law as the evidence does not show a superimposed injury in service. However, the evidence also shows that the Veteran has been diagnosed with cataracts in addition to refractive errors. Although the Veteran has such diagnosis, the evidence fails to show that his cataracts are related to his military service. None of the Veteran's treatment records contain any opinion relating his cataracts to his military service. The first post-service diagnosis of cataracts was in 2009 when the Veteran reported decreased visual acuity in each eye for the last two to three months. He did not indicate that his current vision problems either began in or were otherwise due to his military service. None of his pertinent treatment records contain any medical opinion relating his cataracts to his military service. The only probative medical opinion of record, that of the June 2013 examiner, indicates that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner addressed the Veteran's discharge examination that reportedly showed that his vision was non-correctable. As explained by the examiner, there was no non-correctable visual impairment at the separation examination. The examiner's rationale was that the vision reported was 20/50 in the right eye and 20/40 in the left eye with either no glasses or glasses that were four years old; no attempt was made to provide a current refraction to obtain best corrected vision. This opinion is uncontradicted. Furthermore, the June 2013 VA examiner opined that the Veteran's cataracts were age related. This opinion indicates that the Veteran's only eye condition in service of natural progression of congenital errors of refraction (myopia) would have no etiological relation to the development of senile cataracts, which was an age related condition. No medical professional has provided any opinion indicating that the Veteran's cataracts are other than age related. As the June 2013 VA examiner's medical opinion took into account the Veteran's reported history and his STRs, as well as a full examination, the Board accords it great probative value. In sum, the probative medical evidence of record shows that the Veteran's bilateral defective vision is not related to his military service. Without competent evidence of an association between bilateral defective vision and his active duty, service connection for bilateral defective vision is not warranted. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of bilateral defective vision falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer). The Veteran's own assertions as to etiology have no probative value. Without evidence of a superimposed disease or injury or the onset of non-congenital bilateral defective vision in service, or competent evidence of an association between bilateral defective vision and the Veteran's active duty, service connection for bilateral defective vision is not warranted. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral defective vision. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for bilateral defective vision is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to service connection for bilateral defective vision is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs