Citation Nr: 1327327 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 04-37 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for an eye disorder (amblyopia). REPRESENTATION Appellant represented by: Dennis W. Fox, Esquire WITNESSES AT HEARING ON APPEAL Veteran & Son ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran had active service from October 1959 to May 1961. This matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In March 2007, September 2009, February 2011 and May 2012, the Board remanded the issue on appeal for additional development. The last remand included an issue of entitlement to service connection for Meniere's disease. A March 2013 RO rating decision granted service connection for Meniere's disease, and awarded a 100 percent rating effective April 10, 2002. That issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). A review of the Virtual VA electronic records storage system reveals VA clinic records which are not associated with the paper claims folder. The RO has reviewed these records in the March 2013 supplemental statement of the case (SSOC). The Board further notes that, in January 2013, the Veteran's representative submitted additional medical records for review. These documents contain no relevant findings pertaining to the nature and etiology of the Veteran's current eye disorders and, thus, are not pertinent to the claim on appeal before the Board. A procedural remand for issuance of an SSOC is not warranted. See 38 C.F.R. § 20.1304(c). FINDINGS OF FACT 1. The Veteran's currently diagnosed refractive errors are not eligible for service connection. 2. The Veteran does not manifest amblyopia. 3. The Veteran's left corneal scar with decreased visual acuity clearly and unmistakably existed prior to service, and clearly and unmistakably was not aggravated during active service beyond the normal progress of the disorder. 4. The Veteran's other diagnosed eye disorders (other than left corneal scar and refractive error), including bilateral cataracts, pseudophakia status post cataract excision, dermatochalasis, photophobia and dry eye syndrome, first manifested many years after service and are not shown to have been caused or aggravated by active service. CONCLUSION OF LAW The criteria for entitlement to service connection for an eye disorder (amblyopia) have not been met. 38 U.S.C.A. § 1110, 1111, 1112, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duty to Notify and the Duty to 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The notification requirements are referred to as Type One, Type Two, and Type Three, respectively. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran filed the current claim on appeal in April 2002. A pre-adjudicatory RO letter dated September 30, 2002 advised the Veteran of the types of evidence and/or information deemed necessary to substantiate his claim, and the relative duties on the part of the Veteran and VA in developing his claim. The only deficiency pertained to the failure of the RO to inform the Veteran of the criteria for establishing an initial disability rating and effective date of award. As the claim remains denied, there is no prejudice to the Veteran regarding this defective notice aspect. VA has a duty to assist a claimant in the development of the claim. This duty includes assisting the claimant in the procurement of service treatment records (STRs) 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 Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the RO obtained the Veteran's STRs which appear complete. Additionally, the RO has obtained all known VA clinical records, including complete records related to left eye surgery in 1996. The Board is unaware of any relevant records in the possession of the Social Security Administration. Additionally, there are no outstanding requests to obtain any additional private medical records for which the Veteran has identified and authorized VA to obtain on his behalf. The Veteran has also been afforded multiple VA examinations to determine the nature and severity of his claimed eye disorders. Notably, the Veteran has alleged that his current eye disorders are related to service or, alternatively, that his left eye disorders were caused or aggravated by VA surgery. This reflects a theory of service connection under the general laws of 38 U.S.C.A. § 1110 as well as a theory of additional disability due to VA treatment under 38 U.S.C.A. § 1151. VA has developed both claims. The Board finally adjudicated the claim under 38 U.S.C.A. § 1151 in a February 2011 decision. Thus, the only issue on appeal concerns entitlement to compensation benefits under 38 U.S.C.A. § 1110. The Board has remanded the issue of entitlement to compensation benefits under 38 U.S.C.A. § 1110 multiple times due to VA examiner opinions which did not fully address multiple issues involved in this appeal. Notably, VA received an apparent positive nexus opinion in April 2003 which provided a cursory statement with no reasoning. This examination also did not address all applicable criteria, to include the laws pertaining to the presumption of soundness. Thus, the Board finds that VA was justified in obtaining another opinion. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that it is not permissible to undertake additional development for the purpose of developing negative evidence, and reasons and bases should be provided to explain the decision to pursue further development when it could be construed as obtaining evidence for that purpose). See generally Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that a medical opinion does not hold probative value when it fails to provide sufficient detail and rationale to allow the Board to make a fully informed evaluation of the disability). The case at hand involves multiple eye disorders, lay and medical evidence demonstrating left eye trauma with corneal scar which existed prior to service, and a separation examination diagnosis of amblyopia secondary to trauma with no postservice evidence of amblyopia. Thus, medical opinion was necessary to address all of these issues under different legal standards. The opinions obtained in September 2003, April 2004, July 2008, January 2009, and November 2011 were not adequate for rating purposes. A January 2013 VA Compensation and Pension (C&P) examination report with addendum in March 2013 fully satisfies VA duty to provide medical examination and opinion in this case. This examiner clarified whether the Veteran manifests amblyopia as diagnosed on the separation examination, addressed the issue of left eye corneal scar under the presumption of soundness standard, and addressed the remaining claims under the correct applicable legal standard. This examiner clearly reviewed the pertinent evidentiary record, discussed the evidence potentially favorable to the claim, and provided an adequate rationale for all opinions expressed. The addendum reflects that the claims folder was reviewed. Thus, the Board finds that VA has met its duty to provide medical opinion and examinations in this case. In Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the hearing in September 2005, the Veteran testified to his theories under 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1151. The undersigned attempted to explain to the Veteran the criteria under both 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1151, and inquired as to whether any medical doctors had expressed an opinion on the etiology of his disorders. Given the evidentiary record, the Board finds that it fully complied with the Bryant requirements. Any potential hearing deficiencies were cured with subsequent Board remands directed towards remedying the evidentiary deficits in this case. Finally, the Board finds there has been substantial compliance with its prior remand directives. The RO has obtained all outstanding VA clinic records (including all records relating to left eye surgery in 1996), and obtained medical examination and opinion which addressed the issues of a current diagnosis of amblyopia, the presumption of soundness for corneal scar, and the potential inservice etiology of multiple eye disorders. Based on the foregoing, the Board finds that the RO substantially complied with the mandates of its remands. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47). Overall, the Board finds that the evidence of record is sufficient to decide the claim being decided on appeal, and that there is no reasonable possibility that any further assistance would aid in substantiating this claim. 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. Hence, no further notice or assistance is required to fulfill VA's duty to assist him 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). II. Applicable law and regulation The Veteran seeks to establish his entitlement to service connection for an eye disorder, to include amblyopia. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997). Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004). Service connection for certain chronic disorders, enumerated at 38 C.F.R. § 3.309(a), may be established based on a presumptive basis by showing that such disability manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") A veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111. When the presumption of soundness attaches to a claim but there is a question of preexisting disability, VA has the burden of establishing by clear and unmistakable evidence (1) that a disability preexisted service and (2) that there was no aggravation during service. Wagner v. Principi, 370 F. 3d 1089, 1096 (2004). A pre-existing injury or disease will be considered to have been aggravated during service where there is an increase in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. However, aggravation of a pre-existing injury or disease will not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In Wagner, the Federal Circuit described the framework for analyzing a claim involving 38 U.S.C.A. § 1111 in conjunction with the provisions of 38 U.S.C.A. § 1153 as follows: The effect of section 1111 on claims for service-connected disability thus may be summarized as follows. When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any 'increase in disability [was] due to the natural progress' of the preexisting condition. Id. at 1096. In deciding whether a condition preexisted service, the Board must consider the veteran's medical history, accepted medical principles, evidence of the "basic character, origin and development" of the condition, and "lay and medical evidence concerning the inception, development and manifestations" of the particular condition. 38 C.F.R. § 3.304(b)(1), (2). The term "clear and unmistakable evidence," as used in 38 U.S.C.A. § 1111, has been defined as evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258-59 (1999) (citing the definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a benefits claim by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In Barr, the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of the presence or absence of the claimed symptomatology. However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology. See Jandreau, 492 F.3d at 1377, footnote 4 (Fed. Cir. 2007) (noting that a layperson is competent to describe a simple matter such as a broken leg but not competent to diagnose a form of cancer). VA has defined competent lay evidence as any evidence not requiring that the proponent have specialized education, training or experience. 38 C.F.R § 3.159(a)(1). Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a layperson. Id. Further, competent medical evidence is defined as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. 38 C.F.R § 3.159(a)(2). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. III. Factual Summary The Veteran had active service from October 1959 to May 1961. On his October 1959 enlistment examination, he endorsed a history of eye trouble but no further explanation was provided. Examination demonstrated 20/20 right eye vision and 20/400 left eye vision correctable to 20/40 vision. Color vision was 18/18, and intraocular tension was "[n]ormal," bilaterally. The Veteran was diagnosed with defective vision of the left eye and given a level 3 profile. He was prescribed eye glasses in November 1959. In January 1961, the Veteran reported to the dispensary reporting broken glasses. A new pair of glasses was requested due to refractory error. A March 1961 formal military examination included the Veteran's report of a left eye (OS) injury at age 8. Examination demonstrated 20/30 right eye vision correctable to 20/20 vision and 20/200 left eye vision correctable to 20/40 vision. Color vision, accommodation and field of vision testing were "OK" bilaterally. Intraocular tension was "[n]ormal" bilaterally. The examiner offered a diagnosis of "Amblyopia, O.S., EPTS (existed prior to service), Secondary to trauma." An April 10, 1961 separation examination reflected similar lay and medical findings as the March 1961 formal military examination. The examiner commented that subjective left eye vision was correctable to 20/40. An April 17, 1961 eye clinic visitation noted no change in the Veteran's refractive error or change in eyeglass prescription. The diagnosis of left eye amblyopia, existing prior to service and secondary to trauma, was continued. The Veteran's post-service medical records do not reflect any subsequent diagnosis of amblyopia, and there are no relevant findings for many decades after service. In pertinent part, in January 1996, the Veteran underwent rotational corneal transplant of the left eye. He was later diagnosed with visually significant lenticular opacities (cataracts) of both eyes, questionable right eye angioedema, pseudophakia status post cataract excision, dermatochalasis, photophobia and dry eye syndrome. An April 2003 VA Compensation and Pension (C&P) eye examination provided an assessment of decreased vision due to corneal scar of the left eye status post (S/P) surgery, and cataracts of both eyes. This examiner provided the following opinion: MILITARY SERVICE DID AGGREVATE [sic] THE EYE CONDITION. A September 2003 VA C&P eye examination, conducted by the same examiner in April 2003, clarified that there were no findings suggestive of amblyopia. This examiner then provided the following opinion: EYE CONDITION NOT AGGREVATED [sic] BY MILITARY SERVICE. An April 2004 VA C&P eye examination reflected the Veteran's description of a left eye injury during childhood from a rusty nail which caused a corneal scar. He had undergone a corneal rotation to rotate the scar off the visual axis. The Veteran described photophobia during active service, and complained that he had been denied a prescription of tinted sunglasses at every duty station. Following examination of the Veteran and review of the claims folder, the VA optometrist provided the following diagnoses and opinion: DIAGNOSIS 1. Catract O.U. 2. Corneal scar full thickness O.S. (+) corneal trauma as a child c[au]sing mild decrease in VA O.S. 3. Corneal Allograph O.S. the pt. pt. [sic] cornea was rotated in attempts to position the corneal scar in a non critical area. The corneal scar was rotated off of the line of sight to improve visual performance. Pt. has remar[ka]ble vision consider[ing] a perforation to globe and cornea surgery. 4. Dermatochalasis an expected finding in an adult 61 male 5. Photophobia 6. Refractive Error VA has been stable since 2001. Military Service Did NOT accelerate, complicate or aggrevate [sic] his ocular condition. Corneal trauma resulted as a child prior to mi[lit]ary service. A private optometrist statement received in July 1994 described the Veteran as having a recent change in left eye refraction mainly attributable to a developing left eye cataract. The Veteran was also noted to be significantly more photophobic with his left eye with this cataract being insufficiently developed to be the primary cause. The optometrist opined that the Veteran's left eye injury and possibly his left eye surgery were the primary reasons for his photophobia. It was also opined that it seemed reasonable that tinted lenses or sunglasses should have been prescribed to the Veteran ever since his left eye injury as they would have been capable of alleviating the photophobia. A July 2008 VA C&P eye examination included an additional description by the Veteran that his left eye vision had steadily decreased since his corneal surgery in 1999. He described brief periods of improved vision after corneal and cataract surgeries. Following examination and an extensive review of the claims folder (as reflected in the examination report), the examiner offered diagnoses of corneal autologous graft host corneal tissue so that corneal scar was rotated off axis, pseudophakia of the left eye, cataract of the right eye, refractive error which improved with refraction, and near normal vision of both eyes (OU). The VA examiner commented that the Veteran suffered from a traumatic left eye injury at approximately 8 years of age which had reduced his vision from 20/200 and correctable to 20/40 and 20/30 between the years 1959 and 1961. The Veteran's best vision was recorded as 20/30+ with refraction in November 2002 which was post-corneal rotation. His vision decreased in subsequent years from a left eye cataract which was removed by a private optometrist with a current best visual acuity of 20/50. The VA examiner found no indication that the VA care provided to the Veteran caused or aggravated his ocular status. A January 2009 VA C&P eye examination provided additional diagnoses of posterior subcapsular opacification of the left eye most affecting vision, dry eyes, and pain of both eyes most likely related to dry eyes. The Veteran was also noted to have a loose suture in the left eye. On VA C&P examination in November 2011, the Veteran complained of a dull, throbbing left eye pain of 9/10 severity which he treated with artificial tears and hot compresses. The Veteran felt that his corneal surgery had been the cause of his corneal pain. The Veteran's relevant history included left eye ocular trauma at age 8, status post left eye corneal autologous graft in 1996 followed by corneal suture removal, status post left eye cataract extraction in 2007, status post right eye cataract extraction in 2010, status post left eye capsulotomy in 2010, and dry eye syndrome treated with Restasis. The VA examiner stated that the Veteran most likely entered active service with a left eye corneal scar which had reduced his left eye vision. It was opined that the left eye corneal scar did not progress or was not aggravated during military service. The Veteran's pseudophakia of both eyes were due to cataract extraction expected with a patient of the Veteran's age, and not related to or aggravated by military service. The Veteran's refractive error was expected, and not related to or aggravated by military service. The Veteran's dry eyes were also deemed not related to or aggravated by military service. The Veteran's autologous corneal graft was related to his corneal trauma at age 8. The examiner stated that, with high medical certainty, the corneal scar was present upon entering active service and was not aggravated by active service. The Veteran's ocular pain was an expected result of his corneal trauma, dry eyes and loose sutures attributable to surgery. With respect to the loose sutures, it was noted that they may occur at any time and were common. The Veteran had no diabetes mellitus complications affecting his ocular status. An additional clarifying VA C&P eye examination report was obtained in January 2013. Notably, the VA examiner had access to the electronic records but not the actual claims folder. This examiner provided the following diagnoses: Diagnosis: 1. History of corneal trauma left eye at age 8 Struck in eye with a rusty nail Corneal scar per history Veteran entered into the service with this ocular condition Not related to or aggravated by the military service 2. History of rotational autologous corneal graft left eye 1999 Done to move the corneal scar out of the line of sight to improve visual acuity Corneal graft appears healthy Corneal scar is temporal and superior to the line of sight 3. Pseudophakia both eyes Cataract surgery with intraocular lens implants s/p YAG laser capsulotome in the left eye Not related to or aggravated by the military service; age related. 4. Diabetes mellitus without ophthalmic manifestations 5. Mild epiretinal membrane in the right eye Not related to or aggravated by the military service. 6. History of chronic dry eye Symptomatic Veteran has hygiene related blepharitis and meibomitis which aggravates dry eye Treated with topical lubricants and Restasis Not related to or aggravated by the military service. 7. Refractive error and presbyopia Not related to or aggravated by the military service. 8. Ocular pain left eye greater than right eye Exact etiology unknown May be aggravated by his dry eyes and blepharitis Ocular pain is not uncommon following ocular trauma and with any surgery in or around the eyes Not related to or aggravated by military service 9. Light sensitivity/photophobia Veteran reports long standing light sensitivity May be idiosyncratic and exacerbated by corneal scarring, corneal surgery and cataract surgery. Veteran also has a fair complexion and lighter fundus which predisposes a person to be more light sensitive The VA examiner also provided the following opinions: Opinion: Amblyopia is a diagnosis of exclusion. This means that no ocular abnormality or other cause is found for a person's decrease in visual acuity. Amblyopia develops from conditions that are present in the first few years of life when the visual system is still developing. The common causes are strabismus, unequal and uncorrected refractive error particularly if one eye is more nearsighted than the other, and an opacity such as a congenital cataract, scar, or significant ptosis. It is impossible to say if this veteran had amblyopia from childhood. Presumably his poor vision in his left eye is due to the corneal injury at age 8 and subsequent corneal scar. He may have had decreased vision in that eye prior to that incident but that is not known. His first eye exam may have been at age 8 when his eye was injured so pre-injury visual acuity is not known. Review of previous records indicate that his visual acuity on 10/21/1959 was 20/200 in his left eye, correctable to 20/40. His eye glass prescription from 4/17/1961 USAH, Neubrucke APO 34 Eye Clinic shows a significant amount of astigmatism in the left eye. It is unknown if the astigmatism was secondary to his childhood corneal injury or was his refractive error which certainly could cause refractive (meridional) amblyopia. b) For each eye disorder diagnosed in the November 2011 examination, please opine whether there is clear and unmistakable evidence that the eye disorder existed prior to service. Opinion: my opinion is based on my exam of the veteran today and my review of his electronic medical records available to me. * Decreased left eye vision due to corneal trauma - existed prior to service * Bilateral pseudophakia - did not exist prior to service. The veteran had age-related cataracts requiring surgical removal and intraocular lens implants in both eyes. * Refractive error - existed prior to service. The 10/21/1959 shows a visual acuity in the left eye of 20/200 that was correct to 20/40, thus indicating that a refractive error was present at least in the right eye. The veteran was prescribed glasses. * Bilateral dry eyes - no documentation exists showing the veteran was treated for dry eye prior to service. The first notation regarding dry eye is found in the VAMC 1/12/09 exam where treatment is initiated with topical lubricants. * Left autologous corneal graft - did not exist prior to service. The corneal surgery was done on 1/24/1996 to rotate the corneal scar from the childhood injury out of the line of sight. * Ocular pain left eye greater than right eye - did not exist prior to service. The veteran presumably would have had eye pain in the left eye when his eye was injured but the history of this is not documented. * Amblyopia - as mentioned above, it is impossible to say with absolute certainty that the veteran did not have amblyopia prior to his left eye trauma at age 8 since he did not have an eye exam prior to that time. Any reduction in visual acuity after his injury could reasonably be attributed to the injury and subsequent corneal scarring. c) If the eye disorder clearly and unmistakably pre-existed service, did it undergo a permanent worsening in service? If so, was that permanent worsening the result of the natural progress of the disorder? The examiner must consider the veteran's lay statements regarding his symptoms in service. Whether these statements make sense from a medical point-of -view must be considered and discussed in the opinion. Opinion: It is not possible to say if the eye disorder clearly and unmistakably pre-existed service if by "eye disorder" it is meant "amblyopia". As mentioned previously, the veteran could have had refractive amblyopia in his left eye given the refraction found in the 4/17/1961 exam with anisometropia and high astigmatism in the left eye, or he could have had reduced acuity in the left eye due to corneal scarring from a childhood injury. Neither of these conditions would undergo a permanent worsening in service. If by "eye disorder" it is meant the corneal graft, ocular pain and dry eyes, then these conditions did not exist during service and did not undergo a permanent worsening in service. d) If the eye disorder did not clearly and unmistakable pre-exist service, is it at least as likely as not (probability of 50 percent or more) that the current eye disorder is in any way causally or etiologically related to the symptomatology shown during service? Opinion: The symptomatology shown during service per review of the summary of the service records compiled by Dr Grondalski lists "poor vision" and "defective vision" due to "amblyopia". If by eye disorder it is meant "amblyopia" then yes, it is at least likely as not related. Please note that the amblyopia or defective vision from any cause occurred in childhood and pre-dated the veteran's military service. If by "eye disorder" it is meant the corneal graft, then this condition occurred after service and was done as a treatment for the corneal scar incurred during childhood and prior to military service. Please reconcile your opinions with the April 2003 VA examiner's opinion stating the veteran's "military service did aggravate the eye condition" and the July 2004 private physician's statement that the veteran should have been issued sunglasses during active service and that the veteran currently suffers from photophobia. Opinion: The April 10, 2003 statement that the veteran's "military service did aggravate the eye condition" appears to be a misprint and in error. The eye exam on September 24, 2003 by the same doctor (Donald Simpson, O.D.) states "eye condition not aggravated by military service". Opinion: In regards to the July 2004 private physician's statement that the veteran should have been issued sunglasses during active service and that the veteran currently suffers from photophobia - I cannot say why that statement was made because there is not a cause and effect relationship. Not wearing sunglasses does not worsen photophobia. Photophobia is light sensitivity. All persons are light sensitive and there is an individual response and tolerance of bright light that is innate. The veteran has no signs of ocular damage such as pterygium that may be exacerbated by ultraviolet radiation (sun exposure). The January 2013 VA examiner provided an addendum opinion in March 2013 after claims folder review. This examiner specifically found that the Veteran did not manifest amblyopia. It was noted that the strict definition of amblyopia, or lazy eye, is the loss or lack of development of central vision in one eye that is unrelated to any eye health problem and is not correctable by lenses. The Veteran's reduced vision was related to his corneal scar and, thus, not ocular health of the eye. Accordingly, it was determined that the Veteran did not meet the medical definition of amblyopia. It was further stated that the corneal scar was the cause of the reduced vision and not amblyopia. The examiner stated that there was clear and unmistakable evidence that the decrease in left eye visual acuity existed prior to service. By reference to the various eye examination reports, including the STRs, the examiner further stated that there was no permanent worsening of visual acuity during military service. The examiner described pseudophakia of both eyes as a condition where the natural lens of the eye has been replaced with an artificial intraocular lens after cataract extraction. This condition clearly and unmistakably occurred after service, and was not related to or aggravated by service. The Veteran's dry eyes, ocular pain and loose sutures were also described as conditions which clearly and unmistakably occurred after service, and were not related to or aggravated by service. The examiner found a high degree of medical certainty that the corneal scar existed prior to service, and was not aggravated during military service. It was further found that the Veteran's refractive error clearly and unmistakably existed prior to service, and was not permanently worsened during military service. The VA examiner then noted that the opinions from April 2003 and September 2003 VA C&P examinations, which were from the same examiner, appeared to involve a typographical error in the April 2003 report or that the examiner's position changed. The VA examiner also found that, without a doubt, the Veteran's military service did not cause or aggravate his ocular conditions. With respect to the July 2004 private physician opinion, the January 2013 VA examiner opined that the use of sunglasses at any point would not have changed any aspects of the Veteran's outcomes or diagnoses as the use of sunglasses in service would not have made him more or less photophobic in 2004 or changed his outcome. Notably, the remaining VA clinic records do not offer any further opinion on the nature and etiology of the Veteran's eye disorders, but continued to note that the Veteran does not have any ophthalmologic manifestations of service-connected diabetes mellitus. IV. Analysis The Veteran argues that he currently manifests left eye ambiopia as evidenced by a May 1999 eyeglass prescription. See Veteran's statement received December 2003. See also Transcript of September 2005 Board Hearing, pp. 28-29. He describes that his eyeglasses have been prescribed to prevent his eye from looking at his nose. He also argues that a failure of military physicians to issue him tinted lenses or sunglasses worsened his amblyopia and/or visual acuity. See Transcript of September 2005 Board Hearing, pp. 11-12. He theorizes that use of sunglasses would have slowed down the progression of cataracts. A. Refractive error At the outset, the Board notes that the Veteran has been given diagnoses of refractive error and presbyopia. Presbyopia is "hyperopia and impairment of vision due to ... old age." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1349 (28th ed. 1994). Hyperopia is an error of refraction in which rays of light entering the eye parallel to the optic axis are brought to a focus behind the retina, as a result of the eyeball being too short from front to back - also called farsightedness and hypermetropia. Id. at 797. Refractive errors of the eyes are not diseases or injuries within in the meaning of applicable legislation for disability compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). As a matter of law, the Board cannot award service connection for this aspect of bilateral eye disability. B. Amblyopia The Board next finds that the Veteran does not manifest amblyopia. The only diagnosis of amblyopia of record consists of the military discharge examination reports, which diagnosed amblyopia secondary to left eye ocular trauma. It is unclear how these diagnoses were reached given that an explanation of the supporting findings was not provided. On the other hand, a VA examiner in September 2003 stated that there were no findings to support a diagnosis of amblyopia. Similarly, the VA examiner in January 2013 with addendum in March 2013 explained that the Veteran did not meet the medical definition of amblyopia - a lazy eye with loss or lack of development of central vision in one eye unrelated to a health problem. Here, the VA examiner explained that the Veteran's left eye vision decrease in service was due to the corneal scar and his subsequent additional vision loss was due to cataract development. Overall, the Board places great probative weight to the opinion of the January 2013 VA examiner as this examiner had review of the entire claims folder, an accurate understanding of the Veteran's medical history and actual examination of the Veteran. In addition to all of these factors, the VA examiner explained why the Veteran did not meet the medical definition of amblyopia. The Board acknowledges the Veteran's belief that he manifests amblyopia, which may be based upon information obtained by examining physicians. However, this opinion holds significantly less probative weight than the January 2013 VA examiner's opinion. In this respect, the VA examiner possesses much greater training and expertise than the Veteran in diagnosing specific eye disorders. Furthermore, the Veteran generally alleges that his eyeglass prescription is intended to correct his amblyopia but the Board cannot determine from his statements the reasoning by any examiner why the Veteran meets the medical definition of amblyopia. Thus, his recollection of physician statements holds less probative value than the January 2013 VA examiner's opinion whose rationale is clearly reported in the record. C. Left eye corneal scar and left eye visual acuity The Board next finds that the lay and medical evidence clearly and unmistakably establishes that the Veteran entered active service in October 1959 with a left eye corneal scar resulting in left eye vision loss. The induction examination did not reflect a clinical finding of left corneal scar and, thus, the presumption of soundness attaches to this aspect of disability. 38 U.S.C.A. § 1111. Nonetheless, the Veteran has reported a left eye trauma at the age of 8 after getting hit with a rusty nail, the induction examination reflected significant vision loss limited to the left eye, subsequent clinical examinations have confirmed a left corneal scar and the Veteran has not reported any other potential source for the left corneal scar. Additionally, the March 2013 VA examiner has stated that there is a high degree of medical certainty that the left corneal scar pre-existed service and is responsible for the vision loss demonstrated on the induction examination (20/200 vision correctable to 20/40 vision). There is no contrary medical opinion, and the Veteran does not argue otherwise. The October 1959 induction examination did document 20/400 left eye vision correctable to 20/40 vision. A level 3 profile was assigned. Thus, a left eye visual deficit was "noted" on examination and, thus, the presumption of soundness does not attach to this aspect of disability. To the extent that the Veteran argues that he did not manifest a left eye visual deficit prior to service, the Board places greater probative weight to the induction examiner findings as that examiner possessed greater expertise and training than the Veteran in measuring his left eye visual acuity, including use of visual acuity tests which have greater precision than self-perceptions of visual acuity. The most persuasive evidence in this case as to potential aggravation is the opinion of the January 2013 examiner who provided an addendum in March 2013. This examiner opined that the evidence clearly and unmistakably demonstrates that the Veteran's left corneal scar was not aggravated during active service. This opinion is supported by visual acuity tests in service which showed no decline in visual acuity during active service with 20/200 left eye vision correctable to 20/40 vision. Here, the Veteran has not reported any specific in service injury, but has argued that a failure of military physicians to issue tinted lenses and/or sunglasses further his visual loss by causing premature development of cataract. The VA examiner noted that left eye visual acuity did not decrease during active service, but rather was measured as 20/200 vision correctable to 20/40 vision upon separation. The VA examiner found no progression in the left eye disability, and noted that ocular pain was an expected result of corneal trauma. The left eye pain has also been attributed to postservice left eye surgery to rotate the corneal scar off the visual axis as well as postservice development of dry eye syndrome. Additionally, the VA examiner found that the Veteran did not meet the definition of amblyopia. Again, the Board places greater probative weight to the opinion of the VA examiner as the VA examiner possesses much greater training and expertise than the Veteran in diagnosing the nature and etiology of eye disorders. To the extent that the Veteran relies upon what other examiners may have told him, the Board cannot discern for the record the reasoning for the opinions which hold significantly less probative weight to the stated rationale of the January 2013 VA examiner. D. Additional eye diagnoses Finally, the record reflects additional diagnoses of both eyes which include bilateral cataracts, pseudophakia status post cataract excision, dermatochalasis, photophobia, and dry eye syndrome. All of these disorders were first diagnosed many years after military service. The Veteran has generally argued that he manifested photophobia symptoms in service which was aggravated by failure of military physicians to prescribe him tinted eyeglasses. He also argues that this failure to prescribe tinted eyeglasses caused or contributed to the early development of cataracts. The VA examiner in January 2013 provided opinion that the Veteran's diagnoses of bilateral cataracts, pseudophakia status post cataract excision, dermatochalasis and dry eye syndrome clearly and unmistakably developed after military service, and are not related to active military service. This examiner specifically explained that photophobia is a description for light sensitivity which is an innate characteristic of any individual - noting that the Veteran's fair complexion and lighter fundus predisposed him to be more light sensitive. Additionally, the VA examiner posited that the Veteran's photophobia could have been exacerbated by his postservice surgeries. In any event, the VA examiner found no cause and effect relationship between being the use of sunglasses and a potential worsening of photophobia. On the other hand, a private examiner in 1994 found that the Veteran's left eye injury and possibly his cataract surgery were the primary reasons for his photophobia. This examiner opined that a military prescription of tinted lenses or sunglasses may have been capable of "alleviating" the photophobia, but did not specifically state that a failure to prescribe such glasses worsened the underlying disability. See 38 C.F.R. § 3.306; Davis, 276 F. 3d at 1346-47; Hunt, 1 Vet. App. at 297 (a disability is not aggravated unless the disability underwent no increase in severity during service - as opposed to temporary worsening of symptoms). Overall, the private examiner opinion of 1994 holds little probative value in support of an award of service connection for any eye disability in this case. This examiner does not directly state that photophobia or any eye disability was permanently worsened during active military service. To the extent that it can be construed as such, the Board places greater probative weight to the opinion of the January 2013 VA examiner who, upon review of the entire claims folder and the 1994 opinion, specifically stated that no cause and relationship existed between any sunglass prescription and a permanent worsening of photophobia. Otherwise, the only evidence tending to support this claim consists of the self-diagnoses and opinions of the Veteran himself. The Board places greater probative weight to the opinion of the VA examiner as the VA examiner possesses much greater training and expertise than the Veteran in diagnosing the nature and etiology of eye disorders. To the extent that the Veteran relies upon what other examiners may have told him, the Board cannot discern for the record the reasoning for the opinions which hold significantly less probative weight to the stated rationale of the January 2013 VA examiner. Notably, the Board observes that all medical evidence in this case consistently describes the Veteran as not demonstrating any ophthalmologic manifestations of service-connected diabetes mellitus. In sum, the Board finds that (1) the Veteran's currently diagnosed refractive errors are not eligible for service connection; (2) the Veteran does not manifest amblyopia; (3) the Veteran's left corneal scar with decreased visual acuity clearly and unmistakably existed prior to service, and clearly and unmistakably was not aggravated during active service beyond the normal progress of the disorder; and (4) the Veteran's other diagnosed eye disorders (other than left corneal scar and refractive error), including bilateral cataracts, pseudophakia status post cataract excision, dermatochalasis, photophobia, and dry eye syndrome, first manifested many years after service and are not shown to have been caused or aggravated by active service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The claim, therefore, is denied. ORDER Service connection for an eye disorder (amblyopia) is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs