Citation Nr: 1322507 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 07-34 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a central retinal vein occlusion (CRVO), claimed as strokes, to include as due to a service-connected major depressive disorder and/or service-connected erectile dysfunction. 2. Entitlement to service connection for left eye vision loss, to include as due to service-connected major depressive disorder and/or service-connected erectile dysfunction. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from June 1963 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A hearing was held before the undersigned Veterans Law Judge in April 2011. A transcript of the hearing is associated with the claims file. The Board remanded these claims in July 2011 and October 2012. The development requested in the July 2011 and October 2012 remands has been completed and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The weight of the competent, credible, and probative evidence of record demonstrates that central retinal vein occlusion is not proximately due to or the result of a service-connected disability, including aggravation by a service-connected disability. 2. The weight of the competent, credible, and probative evidence of record demonstrates that central retinal vein occlusion is not proximately due to or the result of a service-connected disability, including aggravation by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for central retinal vein occlusion are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §3.310 (2012). 2. The criteria for service connection for left eye vision loss are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As provided for by 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. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of a letter dated in May 2006, prior to the initial adjudication of the claim. The May 2006 letter informed the Veteran of what evidence was required to substantiate his claims and of the Veteran's and VA's respective duties for obtaining evidence. This letter also informed the Veteran of how disability ratings and effective dates are determined. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the record indicates that the RO obtained all information relevant to the Veteran's claims. The record includes service treatment records and post-service private and VA treatment records. The Veteran has not identified any outstanding evidence that is pertinent to these claims. The Veteran has been provided several VA medical examinations. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed fully below, the April 2006 examination report and addendum and the June 2013 VHA opinion are adequate and probative with regard to the claims. The October 2011 addendum to the August 2011 VA examination report is of limited probative value regarding the question of aggravation of vision loss. The November 2012 VA examination report is not probative. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. 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). 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. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran 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). II. Analysis of Claims Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). "Aggravation" is defined for this purpose as a chronic, permanent worsening of the underlying condition, beyond its natural progression, versus a temporary flare-up of symptoms. Id. To prevail on the issue of secondary service causation, generally, the record must show (1) medical evidence of a current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen, the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Because the Veteran's claim was filed before the regulatory change was made, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a 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); 38 C.F.R. § 3.102. Service Connection for CRVO and Left Eye Vision Loss The Veteran asserts that central retinal vein occlusion and left eye vision loss were either caused or aggravated by medications he takes for service-connected erectile dysfunction and major depression. He asserts that the medications he takes for erectile dysfunction and major depression caused his blood pressure to fluctuate, leading to a stroke and loss of eyesight in the left eye. A VA treatment record dated in November 2005 reflects that a diagnosis of central retinal vein occlusion left eye (about 3 months old per patient), likely ischemic. In April 2006, the Veteran had a VA ophthalmology examination. The Veteran reported that the vision in his left eye was blurred since a stroke in August 2005. The Veteran reported that he felt that Viagra caused his stroke and subsequent vision loss. The VA examiner diagnosed central retinal vein occlusion, left eye, as likely as not to be caused by hypertension. In the "remarks" section of the examination report, the physician stated that the Veteran should not take Viagra. In April 2006, the Veteran had a VA examination for stroke. The Veteran reported a history of stroke, which happened in August 2005. The VA examiner diagnosed cerebrovascular accident, residual vision loss. In an April 2006 addendum opinion, the VA examiner indicated that he reviewed the April 2006 ophthalmology examination. The physician indicated that he agreed with the assessment that occlusion of the central retinal vein, left eye, is as likely as not secondary to hypertension and is less likely than not secondary to erectile dysfunction/ Viagra. In July 2011, the Board remanded the claim to obtain medical opinions regarding whether the claimed disabilities were causes or aggravated by medications the Veteran took for erectile dysfunction and depression. In August 2011, the Veteran was examined by a VA ophthalmologist. The VA examiner reviewed the claims file and indicated that she did not see the private records from April 2006 stating that the Veteran should not take Viagra. The VA examiner noted that the Veteran suffered a central retinal vein occlusion in his left eye but did not realize it and sought care in November 2005, when the CRVO was first documented. The VA examiner stated that CRVO is not a known side effect associated with Viagra use. The VA examiner noted that the Veteran is permanently blind in the left eye with best corrected visual acuity of count fingers only due to the central retinal vein occlusion. In an October 2011 addendum, the VA examiner who performed the August 2011 examination provided an addendum opinion. The VA examiner stated that, based upon the claims file review and examination, it is more likely than not that the medication Viagra aggravated the vision loss in the left eye from CRVO. The VA examiner explained that the physician who provided the April 2006 eye examination opined that the Veteran's left CRVO was caused or aggravated by hypertension. The VA examiner noted that the physician also stated that the Veteran should avoid Viagra without giving a reason why. The VA examiner stated that it is more likely that the CRVO occlusion that caused the Veteran's blindness is related to his microvascular disease hypertension rather than Viagra use. The examiner stated that "the Viagra may have only aggravated the vision loss from the CRVO." The VA examiner opined that CRVO is typically caused by microvascular diseases such as hypertension and diabetes. In August 2011, a VA neurologist provided a medical opinion regarding stroke. The physician noted a history of CRVO of the left eye some time after September 2005. The VA physician noted that the Veteran sought care in November 2005 and was diagnosed with left eye "stroke." The physician noted that there was no history of "brain stroke." The Veteran reported that he essentially had no vision in the left eye. The physician diagnosed a history of left CRVO with reduced vision in the left eye. The physician indicated that there was no history of cerebrovascular accident. In an October 2011 remand, the Board concluded that the medical opinions dated in August and October 2011 addressed whether the Veteran's disorders were related to medication used for erectile dysfunction but did address whether the CRVO was related to depression or medication used to treat depression. The Board remanded the claim for a VA examination to address that issue. The Veteran had a VA examination in November 2012. The VA examiner was requested to address whether CRVO and left eye vision loss were caused and/or aggravated by the medications the Veteran takes for service-connected depression and erectile dysfunction. The VA examiner opined that he could not provide an opinion without resort to speculation as to whether the Veteran's CRVO is related to his medication for treatment of depression and impotence. The VA examiner reasoned that CRVO is typically related to microvascular diseases such as diabetes mellitus and hypertension. The VA examiner stated that there is a possible correlation between anterior ischemic optic neuropathy and Viagra, but not with CRVO specifically. The VA examiner stated that he could not speculate beyond this. In June 2013, a VA ophthalmologist reviewed the claims file and provided a medical opinion. The examiner summarized the Veteran's past medical history. The VA ophthalmologist noted that CRVO is a common vascular condition caused by arteriosclerotic vessel changes from longstanding hypertension, which the Veteran has. The physician noted that Silendafil (Viagra) has been associated with vision loss and has been associated with Nonarteric Ischemic Optic Neuropathy, which is when the blood flow is cut off to the Central Retinal Artery which supplies the optic nerve. She noted that this happens within hours of ingestion of Viagra. The Veteran had been on Viagra for over a year when his CRVO occurred. The examiner indicated that the picture of NAION is completely different than a CRVO. The examiner noted that Silendafil has been associated with only one case report in India of a CRVO within hours of ingestion. The examiner indicated that, per the records, the Veteran never sustained a stroke. The examiner stated that CRVO is sometimes referred to in lay terms as a "stroke in your eye," and the Veteran evidently confused the term with a stroke in the brain. The examiner opined that the CRVO is a direct result of longstanding poorly controlled hypertension and not the Silendafil. When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444 (2000). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri, 4 Vet. App. at 470-71. After a full review of the record, including the lay and medical evidence, the Board finds that the weight of the competent and probative lay and medical evidence demonstrates that CRVO and vision loss are not proximately due to, the result of or aggravated by a service-connected disability, to include medication prescribed for a service-connected disability. The Veteran has not asserted that CRVO or vision loss had their onset during active service or that either are due to active service, and therefore consideration of service connection on a direct basis is not necessary. The Board has considered and weighed the medical opinions of record and finds that the weight of those opinions demonstrate that CRVO and vision loss are not due to or aggravated by a service-connected disability, including medication prescribed for a service-connected disability. The medical opinions were based upon a review of the claims file. In the October 2011 VA addendum opinion, the examiner initially stated that it is more likely than not that Viagra aggravated the vision loss in the left eye from CRVO. However, the examiner went on to provide a rationale that further explained the CRVO occlusion that caused the Veteran's blindness is related to microvascular disease hypertension rather than Viagra use and then concluded that Viagra may have only aggravated vision loss from the CRVO. The examiner's initial statement that it was more likely than not that Viagra aggravated vision loss in the left eye was qualified and the examiner indicated the it may have been aggravated. The Board finds that a fair reading of the opinion is that the examiner concluded that Viagra may have aggravated the vision loss. To the extent that the opinion addresses whether the medication for a service-connected disability aggravated the vision loss, the opinion is speculative and is therefore not probative evidence demonstrating that vision loss is aggravated by a service-connected disability and cannot serve as a basis to establish service connection of the basis of aggravation. See Obert at 33. (a physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis also implied "may or may not" and was deemed speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term "could," without other rationale or supporting data, is speculative). The November 2012 VA examination is of no probative value, given the examiner's statement that an opinion could not be provided without resort to speculation. The Board finds that the remaining VA examination reports and opinion provide competent and probative evidence regarding the claims. Reviewing the other competent medical evidence of record, both of the April 2006 VA medical examinations and the April 2006 addendum weigh against the claim, as both physicians opined that CRVO and left eye vision loss are related to hypertension (which is not service-connected). The April 2006 VA examination for stroke and the April 2006 addendum concluded that the Veteran's CRVO, left eye is not related to Viagra use. The June 2013 VHA opinion also linked the CRVO to hypertension. The August 2011 opinion indicated that Veteran's CRVO led to legal blindness in the left eye. The examiner indicated that CRVO is a common vascular condition cause by arteriosclerotic vessel changes from longstanding hypertension which the Veteran has. The examiner discussed the effect of Silendafil (Viagra) and provided a rationale for the conclusion that the CRVO was a direct result of hypertension. The examiner indicated that the left eye vision loss was a result of the CRVO. Therefore, the Board finds that the opinion is competent and probative and weighs against the claim for service connection for CRVO and left eye vision loss. The Board has considered the Veteran's lay statements. The Veteran contends that the medications he takes for erectile dysfunction and major depressive disorder caused blood pressure fluctuations which led to his CRVO. In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a lay person is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). The Veteran in this case is not competent to provide a medical opinion as he is a lay person and the medical questions at issue regarding the etiology of the CRVO and vision loss are complex medical questions. In July 2011, the Veteran submitted internet articles regarding side effects of Viagra. Those articles generally discuss the side effects of the medication and include notations that vision loss and NAION are possible side effects. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. Wallin, supra.; see also 38 C.F.R. § 3.159(a)(1). The June 2013 examiner included a discussion of NAION in the opinion indicting that it was different from CRVO. The articles submitted do not discuss CRVO and do not relate CRVO to Viagra use. While the articles do note generically a side effect of vision loss, the articles do not a discussion of the facts shown in this case or contain opinions regarding the facts shown in this case. Therefore, the article evidence submitted by the Veteran is of limited probative value. For these reasons, the Board finds that there is a preponderance of the evidence against the claim for service connection for central retinal vein occlusion (CRVO) and left eye vision loss, claimed as secondary to service-connected major depressive disorder and/or service-connected erectile dysfunction. As there is a preponderance of the evidence against the claims, reasonable doubt may not be resolved in the Veteran's favor. 38 U.S.C.A. § 5107. ORDER Service connection for central retinal vein occlusion (CRVO) is denied. Service connection for left eye vision loss is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs