Citation Nr: 1333047 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 07-16 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a right eye disability. 2. Entitlement to service connection for a skin disease. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from June 1984 to May 2004. This matter came to the Board of Veterans' Appeals (Board) from a June 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for dissociated vertical deviation, status post strabismus surgery with mild right amblyopia and idiopathic urticaria. The Veteran testified before the undersigned at an October 2009 hearing in Washington D.C. A transcript of the hearing has been associated with his claims folder. In January 2010 and February 2012, the Board remanded these matters for further development. FINDINGS OF FACT 1. The Veteran's decreased visual acuity is due to refractive error and is not a disability for the purposes of entitlement to VA compensation benefits. 2. The Veteran's right eye disabilities, to include monofixation, right amblyopia, right esotropia and possible dissociated vertical deviation, and status post strabismus surgery, are congenital defects and were not subject to a superimposed injury to the eye during service. 3. Current actinic damage to the skin, tinea pedis, and dermatitis medicamentosa had their onset in active service. CONCLUSIONS OF LAW 1. Service connection for decreased visual acuity due to refractive error is precluded by governing regulations. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 4.9 (2013). 2. Right eye disabilities, to include monofixation, right amblyopia, right esotropia and possible dissociated vertical deviation, and status post strabismus surgery, were not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 4.9. 3. A skin disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In light of the favorable decision as it relates to the issue of the grant of entitlement to service connection for a skin disease, no further notice or assistance is necessary. With regard to the claim of service connection for right eye disability, the Veteran was sent a letter in November 2005 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. In the June 2006 notice letter accompanying the rating decision, the Veteran was given notice of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, as detailed, fully compliant notice was with the rating decision, and the claim was thereafter readjudicated in a statement of the case and subsequent supplemental statements of the case. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes aiding him in the procurement of relevant evidence that could substantiate the claim, such as service and post-service 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). Sufficient VA examinations were not obtained as a result of the Board Remands; however, such deficiencies were cured in the VHA opinions obtained, which will be discussed in detail below. The Board notes that the June 2013 VHA ophthalmologist noted that his opinions provided were the most exhaustive and definitive explanation possible given the medical documentation available. The VHA examiner stated that if any further information was needed, then an ophthalmologist possessing fellowship training for a sub-specialization in strabismus surgery should be consulted. The Board finds, however, that the June 2013 VHA ophthalmology opinion is comprehensive and sufficient with regard to the right eye disability issue on appeal. The claims file contains the Veteran's service treatment records, as well as post-service treatment records. Moreover, his statements in support of the claim are of record, including testimony provided at the Board hearing before the undersigned. The Board has carefully reviewed the Veteran's statements and submissions and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The United States Court of Appeals for Veterans Claims has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). The Court has held that identification of the issues encompassed repeating the elements of the claim that had not yet been substantiated. At the Veteran's hearing the issues were identified, including the evidence needed to substantiate the claim. There was a discussion of possible evidence that could substantiate the claims. Following the hearing the Board remanded the Veteran's appeal in oder to obtain records that had been suggested by the hearing testimony. The Board's initial remand included instructions to seek service department treatment records and records of the Veteran's eye treatment prior to surgery. The agency of original jurisdiction (AOJ) obtained the service department records; but the Veteran did not provide releases to obtain records of treatment prior to service and those records could not be obtained. The AOJ attempted to provide the Veteran with an adequate examination in accordance with the Board remand. The examination was provided, but was inadequate. The Board's second remand sought to obtain clarification from the examiner. An adequate was not received, but as just noted the Board corrected the deficiency by obtaining an expert opinion through the Veterans Health Administration (VHA) as noted above. It thereby insured compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Criteria & Analysis Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements for chronic diseases is through a demonstration of continuity of symptomatology. This route to service connection is not available in this case, because the claimed conditions are not listed as chronic diseases. 38 U.S.C.A. § 1101(a) (West 2002); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Court emphasized that lay testimony is competent if it pertains to matters that the witness has actually observed and is within the realm of the witness's personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also 38 C.F.R. § 3.159(a)(2) (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 the facts or circumstances and conveys matters that can be observed and described by a lay person). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Right eye disability Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such 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, 1137 (West 2002); 38 C.F.R. § 3.306(a). Aggravation may 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 U.S.C.A. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). Service connection for congenital or developmental defects is precluded by 38 C.F.R. §§ 3.303(c), 4.9. Quirin v. Shinseki, 22 Vet. App. 390 (2009); VAOPGCPREC. 82-90, 55 Fed. Reg. 45711 (1990); VAOPGCPREC 67-90, 55 Fed. Reg. 43253 (1990). The General Counsel defined defects as "structural or inherent abnormalities or conditions that are more or less stationary in nature." VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (1990). However, congenital or development defects may be service-connected where a superimposed injury occurs during, or as a result of, active service. VAOPGCPREC 82-90. The Veteran reported on a November 1983 Report of Medical History for purposes of entrance into service that he underwent 3 eye operations between the ages of 5 and 6 for a "lazy eye." However, his November 1983 entrance examination reveals that there were no eye abnormalities at the time he entered service. Thus, he is legally presumed to have been in sound condition at service entrance. Clear and unmistakable evidence that the disability both existed prior to service and was not aggravated in service would be needed to rebut the presumption. 38 U.S.C.A. § 1111. Service treatment records indicate that the Veteran's uncorrected right eye visual acuity was recorded as between 20/30 and 20/100 distant and 20/ 20 and 20/25 near throughout service. He was diagnosed as having defective distant visual acuity (i.e. myopia), esotropia, amblyopia, and monofixation. A March 2006 VA examination report reflects diagnoses of disassociated vertical deviation (DVD), status post strabismus surgery, mild amblyopia (lazy), and refractive error, both eyes. The Veteran reported during the October 2009 hearing that his visual acuity worsened during service. He contended that such worsening was due to reading on computers and exposure to chemicals during chemical warfare training. An August 2010 VA examination report reflects diagnoses of strabismus in childhood (congenital in nature), status post strabismus surgery times three with residual small angle right esotropia with DVD and mild amblyopia. It was also noted that he had conjunctival scarring at the nasal canthus of the left eye. The August 2010 VA optometrist opined that esotropia did not worsen during service. The opinion is inadequate because the examiner did not provide any explanation or reasoning for the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Also, the examiner suggested that the currently diagnosed esotropia pre-existed service in that he opined that the esotropia did not worsen during service, but did not indicate whether it clearly and unmistakably pre-existed service and was not aggravated. See 38 U.S.C.A. § 1111. A March 2012 VA examination report reflects diagnoses of mild amblyopia; status post strabismus surgery times three with right eye hypotropia and esotropia; DVD; and, right eye conjunctiva scar due to strabismus surgery. The March 2012 examiner opined that these conditions pre-existed service and were not aggravated by active service beyond the normal progression of the disease. The examiner, however, did not provide an appropriate rationale for the opinions proffered, thus such opinions are inadequate. Nieves-Rodriguez, 22 Vet. App. at 304. In an opinion received in May 2013, a VHA ophthalmologist, opined that the Veteran's current eye conditions of monofixation, refractive error both eyes, right amblyopia, right esotropia and possible dissociated vertical deviation, status post strabismus surgery times three between ages 5 and 6, according to the medical record are congenital defects. The examiner opined that the current eye conditions are congenital, not aggravated in service. The examiner opined that the congenital eye conditions clearly and unmistakably pre-existed service per the medical record. The examiner opined that the congenital eye conditions did not have onset in service and were not a result of a disease or injury in service. The examiner opined that the progression the Veteran describes is consistent with the natural disease progression of his congenital conditions. As the VHA examiner did not provide a rationale for the above opinions, an addendum opinion was requested. In June 2013, the same VHA examiner provided further explanation. The examiner explained that a congenital condition was present at birth. Ideally, the congenital condition would have been identified, and treated at or near birth, or early in life. Based upon the available documentation, the Veteran had esotropia. Esotropia was a congenital condition of eye misalignment where the eyes were crossed, and therefore did not fixate on the same point in space. Since crossed eyes early in life often did not allow proper and full development of vision in both eyes, it is a common cause of subsequent amblyopia. Amblyopia, described as reduced visual acuity in an otherwise normal eye, is another documented congenital condition identified in the Veteran's record. Amblyopia can occur if the eyes are misaligned and do not fixate on a point in space, because the brain's visual pathways continue to develop throughout the first decade of life. The co-existence therefore of both amblyopia and esotropia, in the right eye per the documentation, is consistent with these congenital conditions. Per the records, a strabismus surgery was performed three times. This is consistent with the history of right esotropia and right amblyopia. The examiner added "by way of further explanation" that strabismus surgery for esotropia could often correct misaligned eyes, allowing binocular fixation on a visual target, and allow the vision to develop properly. In some but not all cases, this and other treatments when done early in life, could avoid amblyopia. In this case, per the available records, the right amblyopia persisted despite the three surgeries. It was common in strabismus surgery to have one or both eyes operated on to correct a misalignment, which explains the notation in the letter that both the right and left eyes have conjunctival scarring presumably from these surgeries. The ophthalmologist referred to the enlistment standard form (SF) 93 dated November 12, 1983 in which the Veteran provided the history the history of 3 eye operations at age 5 or 6 for a "lazy" eye at the Army hospital at Ft. Sill, Okla. The examiner commented that the first was corrective and the other 2 were cosmetic. The examiner noted that this was consistent with esotropia preexisting enlistment. It was noteworthy to the examiner that the records did not inlcude the visual acuity at the time of the entrance examination. The examiner also noted an ophthalmology consultation (SF 513) during service, accompanying the SF 88 dated February 9, 1989 documenting the existence of 8 prism diopters of esotropia, also called "heterotropia" on the form, consistent with the conditions right esotropia and right amblyopia. Also, dissociated vertical deviation (DVD) was noted. Combining the available evidence, the esotropia did pre-exist enlistment per SF 93 history given by the Veteran, the condition existed during service, and there are no data to support an exacerbation of the condition during service. Regarding visual acuity, the examiner noted that available periodic physical examinations for military service in the Veteran's records (SF 88 and SF 93 forms) through 1996 and SF 600 entries dated February 9, 1989 and August 30, 1990 document 20/25 best corrected visual acuity in the right eye, again, consistent with amblyopia, right eye. Regarding refractive error, the examiner stated that the above mentioned documents also contained evidence of myopic (near-sighted) refractive error both eyes. It is normal and common for refractive errors to progress throughout life, as the eye ages and changes. Uncorrected visual acuity was not, according to the examiner, a standard by which a pathologic condition can be identified, since uncorrected acuity by definition will change as the refractive error changes. Rather, best corrected visual acuity in the available records, which is an acceptable standard, did not worsen but remained stable throughout the military service of the Veteran. The examiner noted that an eye examination dated March 2, 2006 (after separation) provided the following: best corrected visual acuity stable in eyes, amblyopia right eye, and persistence of hyperphoria (DVD) left eye. There was no documentation on that examination of worsening of any of the congenital eye conditions. Initially, the Board notes that refractive error is not a disease or injury within the meaning of the applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. Thus, service connection must be denied for this disability as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Additionally, based on a review of the service treatment records, post-service examinations on file, and the June 2013 VHA examiner's report, the Board concludes that there is a clear preponderance of evidence against a finding that an eye disability manifested during service. As detailed in the June 2013 VHA examiner's report, based on review of the entirety of the claims folder, to include the service treatment records, the examiner concluded that the Veteran's monofixation, right amblyopia, right esotropia and possible DVD, status post strabismus surgery times three, are congenital defects. Congenital or developmental defects may not be service-connected because they are not diseases or injuries under the law. Thus, as a congenital deformity, direct service connection could not be awarded. See 38 C.F.R. § 4.9. VA regulations specifically prohibit service connection for a congenital defect, unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (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). While the Veteran asserts that his eye conditions were worsened in service due to reading on computers and exposure to chemicals during chemical warfare training, the evidence of record does not support a finding that the Veteran sustained a superimposed disease or injury which created additional disability. Notwithstanding the fact that the evidence does not reflect a superimposed disease or injury to the eyes during service, as the VHA examiner explained, after review of the records, there is no data to support a worsening or exacerbation of his congenital conditions during service. The Board accepts the opinion from the VHA examiner dated in June 2013 as being the most probative medical evidence on the subject, as such, was based on a review of all historical records and contains detailed rationale. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). Given the depth of the examiner's report, and the fact that the opinion was based on a review of the applicable record, the Board finds such opinion to be probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). Moreover, there is no contrary opinion of record. The evidence of record does not support a finding that the Veteran's congenital eye defects were subject to a superimposed injury or disease during service. In the absence of proof of eye disabilities, other than congenital defects, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. In the absence of any competent evidence of chronic eye disabilities, the Board must conclude the Veteran does not currently suffer from such disabilities. The Board has given consideration to the lay contentions of the Veteran and while he is competent to relay his recollections of what occurred during service and his right eye symptoms, he does not have the medical expertise to diagnose his disabilities and opine on any etiological relationship to service. The etiology of his claimed right eye disability is medical in nature and requires the opinion of a medical professional with medical expertise to resolve the nature and etiology of his conditions. In view of the aforementioned, since the competent evidence shows that the Veteran has congenital eye defects and no chronic eye disabilities as a result of a superimposed disease or injury in service, there is no basis for granting service connection for an eye disability in this case. There is no basis for reasonable doubt so as to resolve this matter in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Thus, the Veteran's claim of service connection for right eye disability is denied. Skin disease The elements for service connection for a skin disease have been demonstrated. Service treatment records reveal that in May 1993 he was treated for left forearm redness and was diagnosed as having early cellulitis. In September and November 2000 he was treated for a red, itchy rash on his hands, arms, abdomen, back, and lower legs. Diagnoses of urticaria were provided. Also, he was treated for acne on numerous occasions between August 1986 and April 1995. In August 2010, the Veteran underwent a VA examination. The examiner noted that the examiner stated that the urticaria the Veteran had in the past is apparently related to Motrin. The examiner stated that it would be mere speculation to state that urticaria was due to military service. In December 2010, the same VA examiner conducted another examination. The examiner noted that the Veteran had had an allergic urticarial reaction to Motrin in 1998, but no episodes since. He also had had urticaria when exposed to mold in 1998. On physical examination, there was no presence of urticaria. He exhibited dermatographism. The physician who conducted the August and December 2010 VA examinations did not provide any opinions as to the etiology of the current actinically damaged skin and tinea pedis. An adequate medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez, 22 Vet. App. at 304. In April 2013, a VHA dermatologist reviewed the record. With regard to actinically damaged skin, the examiner stated that for virtually everyone, actinic damage to the skin has its onset in early childhood and continues through a person's lifetime. The examiner opined that it is not likely that the Veteran's actinic damage had its onset in service. However, the actinic damage might have been exacerbated by environmental or occupational exposures during service, particularly if he was in very sunny climates. With regard to tinea pedis, the examiner explained that this was an extremely common condition which can occur more frequently in moist or damp conditions. There is no documentation of tinea pedis in the Veteran's notes during his time of service. However, given how common tinea pedis occurs and the long duration of the Veteran's service, it is at least as likely as not that his tinea pedis had its onset in service. With regard to dermatitis medicamentosa, the examiner explained that there is clear documentation that the Veteran had multiple episodes of urticaria thought to be due to ingestion of ibuprofen (Motrin) during his time of service in the fall of 2000, including an emergency room note. The examiner opined that it was at least as likely as not that his dermatitis medicamentosa, or drug rash, had its onset in service. In light of the Veteran's reports, the positive medical opinions from the VHA dermatologist, upon review of the claims folders, and resolving all doubt in the Veteran's favor, the Board concludes that service connection is warranted for a skin disease, diagnosed as actinic damage to skin, tinea pedis, and dermatitis medicamentosa. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for right eye disabilities, to include monofixation, refractive error, right amblyopia, right esotropia and possible dissociated vertical deviation, and status post strabismus surgery, are denied. Entitlement to service connection for a skin disease, diagnosed as actinic damage to skin, tinea pedis, and dermatitis medicamentosa, is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs