Citation Nr: 1330470 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 04-05 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a bilateral eye disorder, to include amblyopia and macular degeneration. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran had active military service from December 1945 to July 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for an eye condition, to include amblyopia and macular degeneration. A hearing before a decision review officer (DRO) at the RO was conducted in April 2005. A transcript of the proceeding is of record. This case was previously before the Board in June 2006, at which time, the Board denied service connection for a bilateral eye condition, to include amblyopia and macular degeneration. The Veteran appealed the Board's June 2006 decision to the United States Court of Appeals for Veterans Claims (Court). By an order dated in May 2008, the Court granted an April 2008 Joint Motion for Remand (JMR) and vacated the June 2006 Board decision. In November 2008 and May 2009, the Board remanded the claim for additional development and adjudicative action. In May 2010, the Board denied service connection for a bilateral eye condition, to include amblyopia and macular degeneration. Thereafter, the Veteran appealed the Board's May 2010 decision to the Court. By an order dated in March 2011, the Court granted a February 2011 JMR and vacated the May 2010 Board decision. The Board again remanded the claim in February 2012 for further development and consideration. In February 2013, the Board sought an opinion from the Veterans Health Administration (VHA). Pursuant to this request, the Board received a VHA opinion in April 2013, and it is associated with the claims file. The Veteran and his representative were subsequently furnished a copy of the opinion and advised that the Veteran had 60 days to submit relevant evidence or argument in response. See 38 C.F.R. §§ 20.901, 20.903 (2012). In July 2013, the Veteran submitted further written argument in support of the claim. These arguments are duplicative of the arguments the Veteran has made throughout the appeal period and therefore are not considered new evidence. As this is not new evidence, the Board may consider the evidence in the first instance without resulting in prejudice to the Veteran. 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 amblyopia of the right eye is a congenital or developmental defect. 2. Competent evidence of a nexus between the post service diagnosis of macular degeneration of both eyes and active duty service is not of record. CONCLUSIONS OF LAW 1. Amblyopia is not a disease within the meaning of applicable legislation for disability compensation purposes. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303(c), 4.9 (2013). 2. Macular degeneration was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in April 2003. In the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held, among other things, that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. In the present appeal, the April 2006 and December 2008 VCAA letters to the Veteran included the type of evidence necessary to establish a disability rating and effective date for the disabilities on appeal. Although these notices were not issued before the rating decision on appeal, the Veteran has not been prejudiced, as the Veteran's pending claim was readjudicated in numerous Statements of the Case (SOC) and Supplemental Statements of the Case (SSOC). See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). See also Pricket v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the SOC or SSOC, is sufficient to cure a timing defect). The Veteran has been afforded a hearing before a DRO in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the DRO who chairs a hearing fulfill two duties to comply with the above the 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. Here, during the hearing, the DRO asked specific questions directed at identifying whether the Veteran met the criteria for service connection. The DRO did not specifically seek to identify any pertinent evidence not currently associated with the claim. This was not necessary, however, because the Veteran volunteered his treatment history and symptoms since service. The Veteran is aware of the evidence necessary to substantiate a claim for service connection. In a statement furnished by the Veteran in November 2003, the Veteran stated that his eye problems began in December 1946 while in basic training. The Veteran explained that because of his eye problems, he could not pass basic training and could not qualify with the M1 rifle. The Veteran stated further that he was hospitalized in July 1946 because of faulty vision which remained unchanged at his time of discharge from service. This establishes that the veteran is aware of the type of evidence necessary to substantiate a claim for service connection. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the DRO hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). VA has obtained the service separation examination, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board. The Board is further satisfied that there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, VA examinations were conducted, additional requests were made to obtain any available records from the Veteran's alleged in-service hospitalization, and an expert medical opinion was obtained from a Veterans Health Administration (VHA) physician. The Board observes that the Veteran's service treatment records and service personnel records are "fire-related" (i.e., destroyed in a 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri). In cases where the Veteran's service treatment records (STRs) besides the separation examination are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991), Russo v. Brown, 9 Vet. App. 46 (1996). VA also must provide an explanation to the Veteran regarding VA's inability to obtain his or her service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999). Regarding the Board's remand directive to obtain his hospitalization records from February 1946 to July 1946, the record reflects that the RO requested such records from the NPRC and the NPRC responded with a negative reply. The Board was directed by the February 2011 JMR to attempt to obtain records from the Veteran's alleged in-service hospitalization at "Madigan General Hospital" from the "Clinical Record Library" for "Madigan General Hospital"; however, information available through the National Archives website indicates that medical records available at the "Clinical Record Library" for "Madigan General Hospital" are only from the mid-1950s. Therefore, records of the Veteran's alleged hospitalization in the 1940s at "Madigan General Hospital" would not be available from this repository. The Board concludes that these records are not available and it is reasonably certain that further efforts to attempt to obtain them would be futile. The record reflects that the RO has repeatedly informed the Veteran of the NPRC fire in 1973 and that his records were presumably destroyed in the fire. He was also advised of other sources of evidence he could submit in support of his claim in light of the likelihood of his records having been destroyed. In a report of general information dated in August 2012, the RO informed the Veteran that the name of his company, brigade, and battalion was needed to obtain additional documentation such as morning reports. The Veteran stated that he could not remember this information. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries, supra. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. II. Analysis In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As noted above, limited service records are available. Thus, the Board has a heightened duty to explain its findings and consider the benefit of the doubt doctrine. O'Hare, 1 Vet. App. at 367; Russo, 9 Vet. App. 46. The heightened duty does not change the legal standard for establishing service connection; however, it increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Id. The Veteran states that, while attending basic training, he began having problems with his eyesight. The Veteran explained further that his problems with his eyes did not allow him to complete basic training. He stated that he had never worn glasses before and never had any trouble with his eyes before basic training. He stated that a sergeant erroneously listed on his service personnel records that he qualified with the M1 rifle. He states that his vision was so poor that he never qualified with that rifle. A document that appears to be related to the Veteran's separation from military service notes that between February 1946 and July 18, 1946, the Veteran was hospitalized at Fort Lewis due to faulty vision and headaches and that at the time of his discharge, his condition remained unchanged. It is unclear if this notation was based on official records showing such hospitalization or simply based on the Veteran's self-reported history. In any event, the Veteran has repeatedly stated that he believes his eye problems are related to his time in service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). The term 'chronic disease', whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). None of the Veteran's currently diagnosed eye conditions is a "chronic disease" under 38 C.F.R. § 3.309(a). Thus, consideration under 38 C.F.R. § 3.303(b) is not warranted. Walker, supra. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002). The Veteran's service separation examination dated July 20, 1946, diagnosed amblyopia of the right eye. 2001 VA treatment records show complaints of eye and vision problems. The Veteran's medical history included "retinal degeneration." The Veteran was diagnosed with macular degeneration in February 2003. In November 2003, a VA examiner provided a diagnosis of macular degeneration and noted that the Veteran was legally blind. The examiner stated that the Veteran's military service had no affect on this condition. In a private medical statement dated in May 2004, J.Y., M.D., diagnosed the Veteran with dry age-related macular degeneration (of an advanced form), ocular albinism, and cataracts. J.Y. additionally noted that the Veteran's vision was reported as 20/50 bilaterally in 2000, and that it was 5/200 in the right eye and 5/150 in the left eye at the time of examination. He further stated that in 2000 a diagnosis of mild macular degeneration was provided (significantly, the Veteran asserts that this record relied upon findings which were erroneously recorded in 2000). Multiple statements from lay persons dated in 2005 show that they attested to knowing the Veteran prior to his military service and that they never knew him to have eye or vision problems. In a December 2008 VA examination report, the VA examiner diagnosed the Veteran with legal blindness secondary to age-related macular degeneration and mild cataracts. He opined that it would be "impossible to render an opinion as to whether or not this Veteran's bilateral vision disability may or may not be related to his military service in the 1940s, as there are no supporting records." In a January 2009 VA addendum to the December 2008 report, the VA examiner reiterated that given the incomplete nature of the Veteran's service treatment records, it was impossible to render an opinion without speculation as to the etiology of his current bilateral eye disability. He stated, however, that because the Veteran's vision had grossly worsened over the past nine years, this suggested that the etiology of his macular degeneration was "age-related," which is the commonly accepted etiology of that eye disorder. A VHA opinion was received in April 2013. The physician opined that it was less likely as not that the Veteran's current eye conditions are etiologically related to service. The physician noted that the Veteran's visual acuity was 20/50, right, and 20/40, left on service discharge examination. The physician noted the Veteran's contention that he was hospitalized in service due to headaches from faulty vision and stated that headaches from faulty vision is extremely rare while faulty vision from headaches (while the headache was active) was more common. Therefore, it was the examiner's opinion that the Veteran likely had the latter and not the former. In rendering his opinion, the VA examiner relied on review of the claims file. The physician noted that October 2004 eye photographs show classic geographic atrophy from macular degeneration. The physician stated that dry macular degeneration is usually associated with age and is not associated with amblyopia. The physician noted that headaches associated with blurred vision while the Veteran was in the service would not be expected to be linked to later development of macular degeneration. He also noted that amblyopia would not be associated with later development of macular degeneration. In the physician's opinion, it was quite unlikely the Veteran had ocular albinism. The physician explained that the diagnosis of ocular albinism is quite unlikely because the examinations in the chart document no evidence of iris transillumination defects, congenital nystagmus, or macular hypoplasia - which are hallmarks of ocular albinism. With respect to the Veteran's amblyopia, the Board notes that it is a congenital defect defined as impairment of vision without a detectable organic lesion of the eye. See Dorland's Illustrated Medical Dictionary 1994 (30th ed. 2003). Generally, congenital defects are not diseases for VA compensation purposes. 38 C.F.R. § 3.303(c); see also 38 C.F.R. § 4.9; see also, e.g., Winn v. Brown, 8 Vet. App. 510, 516 (1996). In the absence of a superimposed disease or injury, service connection may not be allowed for congenital defects or refractive errors of the eyes, even if visual acuity decreased in service, as these are not diseases or injuries within the meaning of applicable legislation relating to service connection. Id. Thus, VA regulations specifically prohibit service connection for either a congenital defect or a refractive error of the eye unless such a defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (July 18, 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). Here, the Veteran's disorder is a congenital defect and available service records are negative for evidence of aggravation by a superimposed disease or injury. Therefore, service connection for the Veteran's amblyopia of the right eye is not warranted. To establish service connection, there must be evidence of both a service-connected disease or injury and a present disability which is attributable to such disease or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The Board finds that it is clear from the evidence of record that the Veteran has a competent medical diagnosis of macular degeneration. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A. § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement to service-related diseases and injuries to cases where the underlying in-service incident resulted in a disability). The Board is aware of the Veteran's contentions that he had severe eye problems in service and his macular degeneration is somehow etiologically related to service. The record does not reflect that the Veteran possesses a recognized degree of medical knowledge, and his assertions as to the existence, nature and etiology of the current eye diagnoses fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The question of whether the Veteran's current diagnosis had its onset in or is otherwise related to active service, involves competent medical evidence as to medical causation. Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). VA treatment notes reflecting treatment for macular degeneration do not specifically comment on the etiology of the disorder, but do reflect the condition being diagnosed in February 2003, approximately 60 years after the Veteran's discharge from service. The December 2008 VA examination report and accompanying January 2009 addendum show that although the examiner believed that he could not give an opinion as to whether the Veteran's current macular degeneration was related to service given the absence of the Veteran's service treatment records, he could say that because the Veteran's vision had grossly worsened over the past nine years, this suggested that the etiology of his macular degeneration was "age-related," which is the commonly accepted etiology of that eye disorder. The VHA physician who rendered the VHA April 2013 opinion indicated the Veteran's in-service eye problems and amblyopia were not linked to his later development of macular degeneration. The physician explained that dry macular degeneration is usually associated with age and is not associated with amblyopia. He also explained that headaches associated with visions problems, such as the Veteran allegedly experienced in service, would not be expected to be linked to later development of macular degeneration. There are not contrary competent medical opinions of record. In the absence of competent medical evidence linking the Veteran's current diagnosis to service, service connection for macular degeneration is denied. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for macular degeneration and there is no doubt to be resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for a bilateral eye condition, to include amblyopia and macular degeneration is denied. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs