Citation Nr: 1330290 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 09-42 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a bilateral eye disorder. WITNESSES AT HEARING ON APPEAL Appellant, Spouse ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to April 1986 and from November 1986 to September 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2012, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim. A complete transcript (Transcript) is of record. The Veteran's claim was remanded by the Board for further development in October 2012. Finding that development inadequate, the Board requested an opinion from a specialist in the employ of the Veterans Health Administration (VHA) in April 2013. That opinion was received in June 2013, and has been associated with the record. Finding the opinion adequate, the issue on appeal is properly before the Board for disposition. FINDINGS OF FACT 1. Vitreoretinal disease is congenital in nature. 2. Vitreoretinal disease was incurred during the Veteran's period of active service. CONCLUSION OF LAW Vitreoretinal disease was incurred in active service. 38 U.S.C.A. §§ 1101, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2013). In the instant case, the Veteran's claim is granted herein. As such, any deficiencies with regard to VCAA for these issues are harmless and non-prejudicial. II. Service Connection The Veteran claims that his current diagnosis of vitreoretinal disease is etiologically-related to his period of active service. He contends, in pertinent part, that this disorder was initially manifest during his period of active duty. The Board notes that the Veteran's vitreoretinal degeneration, determined by the December 2012 VA examiner to be the crux of his ocular disorder, is hereditary in nature. Service connection may be established for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.304 (2013). To prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). It is important to note that a veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service, and was not aggravated by service, will rebut the presumption of soundness. 38 U.S.C.A. § 1111 (West 2002). A preexisting disease will be considered to have been aggravated by active 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 progression of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013). In VAOGCPREC 3-2003, the VA's General Counsel determined that the presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) and Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). In this regard, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of 38 U.S.C.A. §§ 1110 and 1111. See 38 C.F.R. § 3.303(c). See also Quirin v. Shinseki, 22 Vet. App. 390 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). However, if it is determined during service that a Veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-397. Since the presumption of soundness at entrance attaches in this case, as vitreoretinal disease was not diagnosed on, or prior to, enlistment, VA must show by clear and unmistakable evidence that the congenital disease preexisted service or was not aggravated thereby. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). VA's Office of General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303(c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43,253 (1990). In short, service connection is available for congenital diseases, but not defects, that are aggravated in service. Quirin, 22 Vet. App. at 394; Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. Quirin, 22 Vet. App. at 394-397. It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted, and if so whether there was aggravation during service. Id. at 395. In this case, the record shows that during service in August 1982, the Veteran reported blurry vision due to military issue glasses. A decrease in his vision was noted. In October 1986, he was noted to have an amblyopic right eye. Currently, private records show that he had cataract surgery on one eye in 1990 and on the other in 1991. In July 2004, he was found to have retinal/vitreous degeneration. A VA outpatient treatment record shows a finding of hereditary retinal/vitreous degeneration-retinitis pigmentosa versus Wagner's syndrome in September 2007. The Veteran testified during a Board hearing in April 2012. At that time, he indicated that, prior to service, he wore glasses, but he was not informed that he was in the process of going blind. He further indicated that he developed cataracts after separation, and that his military service may have accelerated that condition. Regarding his visual acuity, he testified that he changed prescriptions approximately three or four times during service. Based on this evidence, the Board remanded the Veteran's claim in October 2012 so as to provide a VA examination and contain an etiological opinion in order to determine whether any currently-diagnosed eye disorder initially manifested during his period of active service, or was otherwise related thereto. That examination was conducted in December 2012. At that time, the examiner determined that the Veteran's primary diagnosis, the widest and most inclusive, was hereditary vitreoretinal degeneration. The examiner noted that multiple people related to the Veteran had lost their vision, and that the Veteran's vitreoretinal degeneration did not occur during service, was not related to service, and was not aggravated by service. For several reasons, in April 2013, the Board found this opinion inadequate. First, the examiner did not discuss the multiple instances of in-service eye complaints within the context of the negative opinion. Instead, the examiner simply stated that this disorder, and several others, was not related to service or aggravated therein, while providing no rationale or medical evidence in support of that opinion. Second, the examiner did not address whether the Veteran's in-service complaints of blurred vision, or his documented decrease in visual acuity, could have signaled the beginning stage of any currently-diagnosed disorder. Third, while the examiner stated that none of the Veteran's current eye disorders were aggravated during his period of active service, no rationale was provided to support that conclusion, even though a decrease in visual acuity was reported during the Veteran's military career. Following a request from a specialist with the Veteran's Health Administration (VHA), an opinion was associated with the record in June 2013. Per the specialist, the Veteran's bilateral eye disorder was incurred during his period of active service. In support of that opinion, and following a recitation of the Veteran's service treatment history (to include a negative entrance examination demonstrating normal, 20/20 vision), it was noted that a modest change in vision was documented during his military career. While the specialist indicated that the Veteran's disorder was congenital in nature, it was identified as a congenital disease, as opposed to a congenital defect. While cataracts were identified as the most likely culprit with regard to the Veteran's blurred vision, the specialist found that cataracts were most likely secondary to his congenital vitreoretinal disease, which initially manifested during service. As to the congenital defect of amblyopia, noted within the record, the specialist questioned the diagnosis of that disorder, as his vision was 20/20 corrected in 1986. Instead, the specialist determined that such diagnosis was proposed to explain the decreased vision in the Veteran's right eye, which as noted above was more likely secondary to cataracts, which was related to the in-service incurrence of vitreoretinal degeneration. The examiner further explained that there are no indications within the record to suggest that incorrect glasses caused the worsening of his cataracts. Instead, the prescription was appropriately corrected when he reported with blurred vision, and there is no scientific data to show that glasses either prevent or cause cataracts. Also, while cataracts did not progress at an elevated rate during active duty, the underlying congenital disease of vitreoretinal degeneration was the ultimate cause, and therefore service connection for this claimed disability is warranted. The Board finds that the opinion provided by the VHA specialist in this case is comprehensive, providing a detailed recitation of the Veteran's in-service and post-service medical record, and contains a complete and complex medical rationale to support the conclusions offered therein. As the VA opinion of record was found to be inadequate, the June 2013 VHA opinions is afforded greater probative weight. The Board further notes, in regard to the Veteran is competent to report vision symptomatology, as discussed during his Board hearing, from his period of service to the present. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Further, the evidence is deemed credible, as his statements were supported by service treatment reports, and reinforced in this case by the VHA specialist of record. The Veteran's lay statements have been afforded significant probative value due to their competency and credibility in the context of this appeal. Therefore, the most probative medical evidence of record, coupled with the Veteran's competent and credible hearing testimony, establishes that his bilateral vision disorder, although congenital in nature, is a disease was incurred during his period of active service. The Veteran's claim for entitlement to service connection for a vision disorder is therefore granted. ORDER Entitlement to service connection for a bilateral eye disorder is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs