Citation Nr: 1333000 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-28 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for strabismus, status-post surgical repair including diplopia. REPRESENTATION The Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran had active service from April 2000 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. A videoconference Board hearing was held in July 2010 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In June 2011, the Board remanded the case to the RO for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT There is competent evidence that the Veteran was diagnosed with strabismus in service and after surgery in December 2005 and July 2006, the Veteran developed diplopia. CONCLUSION OF LAW Diplopia was incurred by the diagnosis and surgical repair of strabismus in active service. 38 U.S.C.A. §§ 1110, 5107 (b) (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the claim for service connection for strabismus is resolved in the Veteran's favor, the only matter disposed of in this decision, further discussion here of compliance with the VCAA with regard to the claims to reopen is not necessary. Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be established by continuity of symptomatology after service under 38 C.F.R. § 3.303(b). The Federal Circuit recently held that continuity of symptomatology under § 3.303(b) applies only to chronic diseases listed in § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Neither strabismus nor diplopia are listed as a disease under § 3.309 as a chronic disease. Service connection may also be granted for any disease 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). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts At his entrance examination in August 1999, the Veteran's visual acuity was 20/20 bilaterally for near vision. For distance vision, his right eye was 20/30 and his left eye was 20/20. The Veteran, in a section marked "heterophoria," was noted to have "ES" to 2 degrees, his "EX" in degrees was zero, his "R. H." was 0, and his "L. H." was 0.5. In June 2005, the Veteran was evaluated for alternate exotropia with a vertical component. He reported he had this condition since early childhood but he was told he would be functional and surgical treatment was discouraged apart from an operation on his right eye when he was one. He now tilted his head to the left to compensate. The diagnosis was longstanding noncomittant extropia with primarily a left head tilt, but a right head tilt was also noted. Because of this, his caregivers noted the Veteran had alternating exotropia, but he fixated more with his left eye than his right. He also had a non-committant vertical component. In October 2005, the Veteran had a worsening head tilt, increased headaches and tears, and decreased depth perception and 3D vision. If he was tired, his right eye wandered up and out and he used his left eye. The Veteran's service treatment records show that he had 2 in-service eye surgeries in December 2005 and in July 2006. The records indicate the surgeries cut and moved muscles on the eyes to straighten the gaze and eliminate double vision. The risks included misalignment and double vision. After the first surgery, in June 2006, there had been improvement as the Veteran no longer needed to tilt his head and he regained rapid alteration. The eyes, however, now deviated outward more. Extropia was also noted. The diagnosis was intermittent strabismus non-paralytic hypertropia. In September 2006, after the second surgery the Veteran still had extropia but more separation of images without diplopia and he was back where he was before the surgery. He had better control of his ocular alignment but manifested strabismus more, which on the day of the evaluation was attributed to jet lag. No paralytic or traumatic eye deviation was seen. Extraocular muscle motility was not restricted. In June 2007, it was noted the Veteran had strabismus and his right eye was now cross-eyed. The Veteran received a VA examination shortly after separation in August 2007. He reported diplopia all the time except for a narrow central corridor. Titling his head to the left sometimes helped with double vision. The Veteran stated he had symptoms when he was between 4 to 5 years old and he was diagnosed with esotropia and had strabismus surgery. After the surgery, he was diagnosed with lazy eye. He wore glasses until he was a teenager and then used one eye or the other without discomfort or double vision. In service, he was diagnosed with left exotropia and had the extraocular muscle surgery to straighten the eyes, After the first operation, he remembered his right eye still deviated 6 prism diopeters and he started developing double vision. He underwent the second surgery but that resulted in a deviation of 13 prism diopeters for the right eye and 14 prism diopeters for the left eye. The second surgery did not help the double vision. Currently, the Veteran stated his eye watered in the primary position or when he tilts his head to compensate. Both eyes also itch. It is difficult to refocus from near to far distances and vice versa. He has floaters in his left eye all the time. Upon examination, the right eye for distance in the unilateral cover test was 10 prism diopeters. The examiner noted right eye exotropia and combined with a 4 prism diopeter finding, the Veteran also had right hypertropia. The left eye was 15 prism diopeters and also exhibited left exotropia. The same findings were elicited for near vision as well. Diplopia was elicited in all fields of gaze except in the central vertical corridor of approximately 5 degrees. The right eye corrected visual acuity far vision was 20/25 and near vision was 20/30. The left eye was 20/20 corrected. The examiner's diagnosis was refractive antimetropia (hyperopia and myopia) astigmatism, strabismus: exotropia plus hypertropia of the right eye and exotropia of the left. The right eye also had strabismic amblyopia. The examiner also stated the Veteran had diplopia present in all visual fields except for the central corridor related to the surgery and the strabismus. The diagnosis list also included status post multiple strabismus surgeries. There were two incidental diagnoses of allergic conjunctivitis and vitreous symeresis bilaterally, characterized as a benign condition. The examiner also stated the Veteran did not have any injury or trauma affecting the field of sight. The Veteran has contended that his strabismus existed prior to service and was aggravated (permanently worsened) by service. He testified that strabismus was diagnosed originally when the Veteran was a child. He also testified that his strabismus was a congenital eye disability. He also testified it was aggravated by 2 in-service surgeries to correct it in December 2005 and in July 2006. The first surgery had been somewhat beneficial because it had restored his 3D perception, but the second made things worse as he did not have diplopia before service. He also had sensitivity to light, lost his 3D perception, and sometimes experiences headaches and dizziness. Analysis Initially, the Board notes strabismus is deviation of the eye which cannot be overcome. Convergent strabismus is esotropia. Divergent and external strabismus are exotropia. Dorland's Illustrated Medical Dictionary, 1587, (27th ed. 1988). Diplopia is double vision. Dean v. Brown, 8 Vet. App. 449, 451 (1995). There is some evidence that the Veteran had strabismus which may have preexisted entry into service. The service treatment records contain the diagnosis of strabismus and portions of the treatment notes and subsequent medical records suggest that the Veteran had it at a young age, about 4 to 5 years old, and received surgical treatment. A Veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition when he entered into military service except for conditions noted on the entrance examination. 38 U.S.C.A. § 1111. The presumption of soundness is rebuttal by clear and unmistakable evidence that the disability preexisted service and was not aggravated by service. 38 C.F.R. § 3.304(b). The Veteran did not give history of strabismus or prior eye surgery on the entrance examination and more importantly, the examination did not note the condition either. The pertinent VA regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b); see also Crowe v. Brown, 7 Vet.App. 238, 245 (1994) (history of pre-service existence of a disease does not constitute a notation of such a condition to rebut presumption of soundness). The Board is aware that upon entrance findings were noted in the "heterophoria" section of the entrance examination. The examination, however, did not include a finding of strabismus or state these findings equated to strabismus. As strabismus was not noted on entrance examination, the Veteran is presumed to have been in sound condition upon entry to service. 38 U.S.C.A. § 1111. As evidence of record does not clearly and unmistakably establish that the Veteran had a pre-existing strabismus condition, the presumption of soundness is not rebutted and the Veteran is presumed to have been in sound condition as to any knee condition on entrance. Therefore, the Board will consider the Veteran's claim as one of direct incurrence, rather than one based on aggravation of a pre-existing condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). As such, since strabismus was diagnosed in the treatment records, the Veteran has proved an in-service event, disease, or injury. The remaining question before the Board is whether the Veteran's current disability, diplopia, resulted from the strabismus diagnosed in service and/or the surgery performed to treat the condition. The Veteran is competent to describe symptoms, which he is able to perceive through the use of his senses. 38 C.F.R. § 3.159 (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 lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses). Further, the Veteran's statements and testimony are admissible and are to be considered as evidence that the symptoms continued from separation to the present. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept in determining whether lay evidence may be considered, in other words, whether the evidence is admissible). The Board thus finds that the Veteran is competent to describe his symptoms in service and thereafter. Furthermore, the Board finds the Veteran is not only competent to describe he symptoms, but he is also competent to state he has double vision or diplopia. Stated another way, diplopia is capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). In this instance, diplopia is a simple medical condition that the Veteran can identify as it is similar to other conditions that have been determined to be simple medical conditions that can be identified by a layman, such as, flat feet, certain skin conditions, tinnitus, and varicose veins. Barr, 21 Vet. App at 309 (varicose veins were subject to non-expert diagnosis due to the readily observable defining characteristics of the condition); See also, Jandreau; Charles v. Principi, 16 Vet. App. 370, 374 (2002); and Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The Board also finds the Veteran's statements and testimony are credible. His statements and testimony tend to prove a fact, that is, he noticed that diplopia began in service. The Veteran's competent and credible statements and testimony establishes the in-service incurrence of an injury, disease, or event here the diagnosis of strabismus followed by two attempted surgical repairs, resulting in diplopia. Moreover, the Board finds the Veteran's report of having experienced diplopia since separation from service to be credible as there is no contradictory evidence in the record. As the Veteran's lay statements are competent to describe the onset in service and since service, and with evidence of current disability and evidence of a relationship between the current disability and service on the basis of continued symptoms, all the elements of service connection have been met and service connection is established. See Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (If lay evidence presented by the veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence). Therefore, the evidence also proves a relationship between service and the current diplopia, that is, the statements and testimony establishes the in-service incurrence of an injury, disease, or event (surgical repair for strabismus) that resulted in the Veteran's current double vision or diplopia. Accordingly, the Board finds the diplopia began in service and the claim for service connection for strabismus, status-post surgical repair, including diplopia, must be granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for strabismus, status-post surgical repair, including diplopia, is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs