Citation Nr: 1331081 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 05-20 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral optic atrophy. 2. Entitlement to service connection for hyperopia with defective vision. REPRESENTATION Appellant represented by: Blinded Veterans Association WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1974 to July 1976. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision by the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for chronic obstructive pulmonary disease (COPD) and reopened a claim of service connection for hyperopia with defective vision and bilateral optic atrophy, and confirmed and continued the denial of the claim. A videoconference hearing was held before the undersigned in July 2007; a transcript of this hearing is associated with the claims file. The case was before the Board in October 2007 and October 2009, when it was remanded for additional development. In December 2011, the Board obtained an advisory medical opinion from the Veterans Health Administration (VHA) in these matters. In June 2012 the Board obtained clarification of the VHA opinion. In September 2012, the Board denied service connection for COPD and reopened and remanded the claims of service connection for hyperopia with defective vision and bilateral optic atrophy. FINDINGS OF FACT 1. The Veteran's vision complaints in service were acute and resolved; his optic atrophy/optic neuropathy (claimed as bilateral optic atrophy) are congenital and developmental in nature; and are not shown to have pathology superimposed from disease or injury in service, including as due to the accidental splashing of hydraulic fluid in his eyes. 2. Tobacco-alcohol amblyopia (claimed as hyperopia with defective vision) was not manifested in service and a preponderance of the evidence is against a finding that such eye disability is related to the Veteran's service, including as due to the accidental splashing of hydraulic fluid in his eyes. CONCLUSIONS OF LAW 1. Service connection for bilateral optic atrophy is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.303, 3.304 (2013). 2. Service connection for hyperopia with defective vision is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to their initial adjudication. A February 2004 letter explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. A March 2006 letter informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this matter was less than adequate. The Veteran's service treatment records (STRs) are associated with his claims file, and pertinent postservice treatment records have been secured (including from the Social Security Administration (SSA)). With respect to further treatment records that remain outstanding, the Board finds that any further attempt to secure such records would be futile. In May 2011, after numerous unsuccessful written and telephone attempts to obtain the records, the RO issued a formal finding that alleged treatment records (from the Amarillo, Lubbock and Houston VA Medical Centers) for an eye condition for the period from the Veteran's separation from service (in 1976) to1994 are unavailable. The Board finds that the development directed in the October 2007 and October 2009 remands has been completed to the extent possible (the September 2012 Board remand ordered de novo readjudication of the Veteran's reopened claims by the RO, specific additional development was not ordered). See Stegall v. West, 11 Vet. App. 268 (1998). The RO arranged for VA eye examinations in May 2006 and June 2011. As noted above, the Board obtained a VHA medical advisory opinion (and clarification). As will be discussed in greater detail below, the Board finds that the medical opinion evidence is now adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Refractive error is a congenital or developmental abnormality and not a disease or injury within the meaning of applicable regulation [i.e., not a compensable disability]. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia and astigmatism, even if visual acuity decreased in service. 38 C.F.R. §§ 3.303(c) , 4.9; VA Manual M21-1MR, Part III, Subpart iv, Chapter 4, Section B. 10d.) VA's General Counsel has held that service connection may be granted for diseases of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VA's General Counsel also held that a congenital defect can be subject to superimposed disease or injury, and if superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). However, lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is needed where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also mean statements conveying sound medical principles found in medical treatises, and may include statements in authoritative writings, such as medical and scientific articles and research reports. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran claims that his current loss of visual acuity is the result of an incident in service when hydraulic fluid was accidentally splashed in his eyes. His STRs show that his uncorrected visual acuity on September 1974 enlistment examination was 20/40, bilaterally. A July 1975 STR notes that the Veteran was seen with complaints of photophobia and his eyes hurting from wearing glasses. The history he provided at the time included a description of visual acuity "training at age 14." On ophthalmology consultation, it was felt that this was a congenital hereditary problem for which there was no real therapy. The provisional diagnosis at that time was bilateral amblyopia. Annual follow-up was recommended. In January 1976 he was seen when hydraulic fluid was splashed in his eyes, and had complaints of a slight stinging sensation. His vision was good, there was no blurring or double vision and his eyes were irrigated with normal saline. On service separation examination in July 1976, the Veteran's eyes were normal on clinical evaluation; uncorrected visual acuity was 20/30, bilaterally; it was noted that a color vision test was failed. Postservice private treatment records include a March 1986 visual electrophysiology report which notes a history of optic atrophy OU (both eyes) of unknown etiology. An April 1986 treatment report shows bilateral visual acuity of 20/70 and notes "unexplained decreased VA (visual acuity) OU". It was noted that the Veteran reported decreased VA OU since 1975. A later April 1986 follow-up report shows an assessment of dominant optic atrophy. A July 1998 report of General Check-up notes that the Veteran reported being splashed with hydraulic fluid in 1976 and having a history of decreased visual acuity since 1986. The diagnosis was questionable long standing optic atrophy. In a September 1998 statement, the Veteran claimed that the hydraulic fluid "blew up in [his] face" in service and his vision has "gone bad" ever since. He recalled the he denied the explosion because he did not want a medical discharge. A June 1999 statement from Low Vision Centers of Texas notes that the Veteran's vision was 20/200 in each eye (aided and unaided) and he qualifies as legally blind. VA treatment records in January 2001 note the Veteran reported a history of poor vision OU since jet explosion about 20 years previously. The examiner was unable to find any specific ocular pathology to account for the Veteran's poor vision. An October 2002 Disability Report in connection the Veteran's claim for benefits from the Social Security Adiministration (SSA) includes the observation that the Veteran "indicated that he was blind but drove himself to the office." SSA records also include a December 2002 eye examination report which shows bilateral uncorrected visual acuity of 20/400 and with best correction to 20/200. The SSA determination notes a primary diagnosis of optic atrophy. A December 2003 Texas Commission for the Blind, Low Vision Intake Sheet, notes a diagnosis of optic atrophy onset since a 1978 accident. An October 2005 VA magnetic resonance imaging (MRI) of the brain included a finding of severe cerebral atrophy. In March 2006, the Veteran's representative submitted medical treatise evidence from Ophthalmology Principles and Concepts; 8th Ed, 1996; pp. 314, 315, 317, 318, 320, and 321, on diseases and injuries of the eye and retinal and macular degeneration. On May 2006 VA eye examination, after carefully reviewing the Veteran's claims file and examining the Veteran, the examiner opined that "it is less likely than not" that the Veteran's early complaints are related to his current illness. The examiner noted that the Veteran has optic atrophy of unknown etiology (and glaucoma) and stated that he was unable to determine the precise cause of the optic nerve dysfunction. The examiner explained that "[t]he fact that the [Veteran] underwent pilot training after military service and that he was able to work as a respiratory therapist until 10 years ago leads me to believe that his vision was acceptable for work and normal function until he retired as a respiratory therapist." June 2006 statements from the Veteran's friends attest to his "difficulty of paired vision" and use of a magnifying glass to read small print and do business at the bank. During his July 2007 videoconference hearing, the Veteran recalled the hydraulic blast in service and that "immediately [his] vision was stinging." He reported that the blast was "three thousand PSI" (three thousand pounds per square inch) and felt like a blow to the head. He stated that his vision has become progressively worse since the incident. A September 2010 initial retinal examination report from G. P. Mathews, M.D., PhD, a private ophthalmologist, notes that the Veteran complained of decreased visual acuity in both eyes since the 1976 blast injury. The assessment was optic atrophy, OU. In a separate statement, Dr. Mathews opined that "the hydraulic fluid could not have been the cause of the optic atrophy and it certainly should not have led to permanent loss in vision from at least the findings that I see on the cornea, conjunctiva, anterior segment, and posterior segment." Dr. Mathews attributed the Veteran's visual loss to optic nerve dysfunction. A December 2010 VA treatment report includes assessments of "h/o (history of) ocular HTN (hypertension) vs. glaucoma and severe optic neuropathy OU." Labs and MRI were noted to be unremarkable; the Veteran had been seen by neuro ophthalmology in August 2006, and wanted further evaluation from a neuro ophthalmologist regarding the possible causes of his optic neuropathy. The treatment report notes "[m]ost probably cause by the blast 30 years ago." Similar statements and findings are noted on VA ophthalmology notes in February 2011 and February 2012. On June 2011 VA eye examination the diagnoses included severe optic neuropathy, MRI test indicating cerebral atrophy, suspected glaucoma, and refractive error not related to hydraulic fluid in face and eyes. The examiner explained that, "in view of the history of visual training in childhood and the examination that was done in 1975 it is unlikely that this patient's hydraulic fluid injury was in any way related to his vision. It is probable that this patient has a neurological disease manifested by his tremor and abnormal MRI and by his optic neuropathy and very poor vision in both eyes." In December 2011, a VHA medical advisory opinion was provided by J. Sands, M.D., Chief, Ophthalmology Section, Cincinnati VAMC (VA Medical Center), and Associate Professor of Ophthalmology, University of Cincinnati. Dr. Sands reviewed the Veteran's claims file and stated that "[t]he data really reveal no indication of hydraulic fluid playing a role in this veteran's eye problems. He does have a well documented history of alcoholism with tremors and treatment for withdrawal. He has as well documented use of tobacco." Regarding a finding in the record that the Veteran had been driving with telescopic lenses, Dr. Sands noted that, "[b]y his history, we would think he would be unable to pass a driver's visual test." He provided diagnoses of "tobacco-alcohol amblyopia or optic neuropathy" and "functional, which is really an in-organic loss of vision" and noted that these diagnoses were noted by neuro ophthalmology. Dr. Sands noted that the Veteran's "history of alcoholism and tobacco use as well as the clinical picture makes [tobacco-alcohol optic neuropathy] a likely diagnosis." He also noted that the diagnosis of tobacco-alcohol toxic optic neuropathy is supported by the Veteran's history of alcoholism and cerebral atrophy on MRI." A "functional condition where the [Veteran] is claiming decreased vision in order to obtain a benefit" was also noted as a possibility and "more likely if he in fact has a driver's license." Alternatively, Dr. Sands noted that "[t]he possibility of a hereditary or congenital optic neuropathy had been raised" by the record and explained: This includes entities like Leber's Hereditary Optic Neuropathy (LHON). This most of the time has a pedigree where men are affected by way of the women in this family that carry a genetic abnormality in mitochondrial DNA. This veteran does not have a family history of vision problems. LHON could present with a constelation of symptoms that this veteran presented with. It usually occurs within the ages of 15-35. It usually affects color visual first and can produce cecocentral scotoma or decrease central vision. It can be associated with tremor. Many times there is a triad of abnormal blood vessels around the optic nerve that are called circumpapillary telangiectatic microangiopathy as well as swelling of the nerve fiber layer around the disc and an absence of leakage of fluorescein from the disc on fluorescein angiography. There are patients with LHON that do not have this typical fundoscopic appearance. The veteran in question was never noted to have this fundoscopic appearance. Autosomal dominant optic atrophy is believed to be the most common of the hereditary optic neuropathies. This typically starts at a younger age, as young as 4-6 years of age, but can present with mild visual loss. Visual acuities can remain between 20/20 and 20/60 throughout life in as many as 40 percent of these cases. Severe visual loss, worse than 20/200, can occur in 15 percent. The clinical picture is compatible with the veteran in question. There usually is a pedigree of visual loss within the family in patients with this condition. Other hereditary optic neuropathies are usually associated with developmental disabilities or other systemic problems that our veteran did not demonstrate. Dr. Sands' opinion as to hereditary optic neuropathies is supported by reference to medical literature on the subject. Further, Dr. Sands opined that he "did not see any evidence of aggravating factors of a congenital or hereditary optic neuropathy" and the "bottom line is this veteran's optic atrophy is unrelated to his service." In June 2012, Dr. Sands provided clarification for his December 2011 medical opinion. Dr. Sands reviewed the claims file again and, regarding the finding of bilateral amblyopia with a history of vision training at age 14 noted in the STRs, commented that "'bilateral amblyopia' is not a useful or relevant concept" because "[t]he American Association of Pediatric Ophthalmology and Strabismus defines bilateral amblyopia as a condition causing blur in both eyes from uncorrected astigmatism or sensory deprivation like bilateral cataracts. The veteran did not have either of these conditions." Dr. Sands also noted that the refractions noted in service did not reveal significant astigmatism. Dr. Sands also explained: Though amblyopia is in the title of tobacco-alcohol amblyopia it has nothing in common with the amblyopias of childhood. Amblyopia means decreased vision in a normal eye due to the brain ignoring the eye in question. The two big reasons for this are: 1. Strabismic - when the eyes are not aligned and the brain ignores an eye to prevent double vision 2. Refractive - when an eye presents a blurred image to the brain because of an uncorrected significant refractive error. Tobacco - alcohol amblyopia is currently more appropriately termed nutritional optic neuropathy as the optic nerve is damaged by a lack of proper nutrition. It is not in dispute that the Veteran sustained trauma to his eyes as a result of hydraulic fluid blast in service, and that he now has bilateral eye disabilities, to include decreased vision and bilateral optic atrophy. [The record also shows findings of glaucoma; however, the Veteran has not claimed service connection for glaucoma.] What remains for resolution is whether any current bilateral eye disability is related to his service/the documented injury therein. Refractive error, of itself, is considered a developmental defect and not a compensable disability (in the absence of superimposed pathology). See 38 C.F.R. § 3.303(c), 4.9. The Veteran does not allege that glaucoma was manifested in service. There is no objective evidence that any eye pathology was superimposed on the Veteran's refractive error (amblyopia and/or hyperopia) during service. Moreover, Dr. Sands opined that "'bilateral amblyopia' is not a useful or relevant concept" as to the Veteran's symptoms in service because it results from "uncorrected astigmatism or sensory deprivation like bilateral cataracts" and the Veteran did not have either of these conditions in service. Consequently, service connection for the refractive error is not warranted. The record shows that the complaints/pathology associated with the eye injury in service were acute, and resolved. Although he was treated for slight stinging sensation when hydraulic fluid was splashed in his eyes in service in January 1976; his vision was good, there was no blurring or double vision and he had uncorrected visual acuity of 20/30, bilaterally, on service separation examination in July 1976. There is no objective evidence of eye pathology at any time soon after the Veteran's discharge from active duty (service connection for eye trouble was denied in a July 1977 rating decision because defective vision, diagnosed as hyperopia, was a constitutional or developmental defect). Consequently, service connection for a disability of the eyes on the basis that such disability became manifest in service and persisted (i.e. based on continuity of symptoms is not warranted). In this regard the Board notes the Veteran's recent allegations that he has had eye complaints ever since service. To the extent that he seeks to establish continuity of symptomatology by such allegation, the Board notes that the allegation is inconsistent with contemporaneous clinical data (including that on service separation his eyes were normal on clinical evaluation, and he did not claim eye disability from the hydraulic fluid injury until 1986, almost 10 years after service), and is also self-serving. Therefore, it is not credible. Regarding bilateral optic neuropathy, it is noteworthy that such pathology was not reported in service, or at any time soon thereafter. The record shows that the Veteran has a history of alcoholism and tobacco use. The VHA medical expert diagnosed the Veteran's current eye disabilities as tobacco-alcohol amblyopia or optic neuropathy and attributed his disabilities to his alcoholism and tobacco use or, alternatively, to hereditary or congenital factors. The VHA medical expert is competent to offer the opinion (as he is a medical professional), based his opinion on a review of the record (and familiarity with the history of the disability) and the relevant medical literature. The VHA medical expert explained the rationale for the opinion, and it is competent nexus evidence in this matter. Because there is no competent evidence to the contrary, the opinion is persuasive. While the Veteran may be competent to testify as to symptoms he experiences, including blurred vision, he is not competent to opine as to whether his optic atrophy is related to the injury during service other than by trying to establish continuity of symptoms (as was noted above, such attempt has been rejected as not credible). Whether, in the absence of continuity of symptoms, current eye pathology is related to a remote injury (in service) is a medical question beyond the capability of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1374 (Fed. Cir. 2007). The record shows that the Veteran is a respiratory therapist (See April 2011 VA examination report); he does not claim, and the record does not show, that he is qualified through education, training, or experience to offer a competent opinion regarding the diagnosis and etiology of an eye disability. Regarding the medical literature the Veteran has submitted (e.g., on diseases and injuries of the eye and retinal and macular degeneration), the United States Court of Veterans Appeals has held that a medical article or treatise evidence "can provide important support when combined with an opinion of a medical professional," if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314, 317 (1998). The medical treatise, [textbook, or article] must provide more than speculative, generic statements not relevant to the appellant's claim but must discuss generic relationships with a degree of certainty for the facts of a specific case. Wallin v. West, 11 Vet. App. 509, 514 (1998). Here, what the Veteran has submitted are generic articles that are not accompanied by a medical professional's opinion linking his decreased vision/bilateral optic atrophy to his service. The medical literature submitted does not address the specific facts of the Veteran's case, and has no probative value in the matter. Finally, the Veteran's bilateral optic atrophy has been related to his alcohol abuse and use of tobacco products. The Board notes that, for all claims filed after June 9, 1998, as here, governing law (38 U.S.C.A. § 1103) specifically prohibits service connection for a disability on the basis that it resulted from the use of tobacco products in service. Further, governing law (38 U.S.C.A. § 105(a), 1110) provides that compensation is not payable when a "disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs" (but may be payable if such abuse is a symptom of a service-connected disability). In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claims. Accordingly, his appeal in the matters must be denied. ORDER The appeal seeking service connection for bilateral optic atrophy is denied. The appeal seeking service connection for hyperopia with defective vision is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs