Citation Nr: 1334087 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 06-01 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for defective visual acuity in the right eye. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION Active service from September 1963 to August 1966 has been documented. The Veteran had over 9 months of additional active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the VA Regional Office (RO) in Oakland, California. The Veteran withdrew his hearing request in July 2006. The case was remanded by the Board in January 2010 for further development. In September 2011, the Board denied entitlement to service connection for defective visual acuity in the right eye. The Veteran appealed, and in a Joint Motion for Remand, the Secretary and the Veteran moved for the United States Court of Appeals for Veterans Claims (Court) to issue an order vacating that part of the Board's decision that denied service connection for defective visual acuity in the right eye. In September 2012, the Court vacated the September 2011 decision and remanded the case to the Board for further proceedings consistent with the Joint Motion for Remand. In March 2013, the Board requested a medical opinion through Veterans Heath Administration (VHA) directives to determine the etiology of the Veteran's decreased visual acuity in the right eye. The Veteran was provided a copy of the opinion with an opportunity to present further argument and/or evidence. FINDING OF FACT Defective visual acuity in the right eye was not incurred in or aggravated by service, or otherwise related to service or service connected disability. CONCLUSION OF LAW The criteria for service connection for defective visual acuity in the right eye have not been met. 38 U.S.C.A. §§ 1110, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.310 (2013). Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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. Letters in August 2004, March 2006, and February 2010 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a June 2011 supplemental statement of the case. Mayfield v. Nicholson, 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, 556 U.S. 396 (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). A March 2010 memorandum reflects that the Veteran's available service treatment records, as well as VA medical treatment records have been obtained. The RO's attempts to obtain private records were unsuccessful. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The record, to include the August 1997 VA general examination report, reflects the Veteran is in receipt of Social Security Administration (SSA) disability benefits due to heart surgery. The Board acknowledges that normally VA has a duty to attempt to obtain SSA records when it has actual notice that the Veteran is in receipt of SSA disability benefits. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), however, the Federal Circuit acknowledged that VA's duty to assist was limited to obtaining relevant SSA records. The Federal Circuit rejected the appellant's argument in Golz that SSA records are always relevant and VA always is required to obtain them. The Federal Circuit then defined relevant records as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim." Id. at 1321 (emphasis added). The Federal Circuit also stated, "[n]ot all medical records for a Veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim." Id. The Federal Circuit concluded in Golz, "[t]here must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant." Id. at 1323. The SSA records pertaining to disability due to a heart disability are not relevant to the claim on appeal. A VA examination was conducted in June 2010, an addendum was obtained in April 2011, and a VHA opinion was obtained in May 2013. The Veteran has not argued, and the record does not reflect, that the examination and/or opinions were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The claim file was reviewed in conjunction with the May 2013 VHA opinion and the rationale provided is based on objective findings, reliable principles, and sound reasoning. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is competent to report the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When an issue is raised as to whether the disorder claimed by the Veteran pre-existed service, the governing law provides that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). This statutory provision is referred to as the "presumption of soundness." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the Veteran's entrance examination report, this presumption of soundness operates to shield the Veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby, 1 Vet. App. at 227; see also 38 C.F.R. § 3.304(b) ("Only such conditions as are recorded in examination reports are considered as noted."). This presumption is only rebutted where the evidence clearly and unmistakably shows that the Veteran's disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran asserts his defective visual acuity in the right eye is related to service. A November 2007 VA treatment record notes he is blind in the right eye secondary to large staphyloma macular scarring. The December 1961 optometry evaluation at the Marine Corps Reserve Depot in San Diego reflects vision in the right eye was 20/200, and vision in the left eye was 20/20. There was no mention as to corrected vision. A left hand shooter's permit was issued, and notation was made of "amblyopia cause unknown." The September 1963 reenlistment examination report notes refractive error. Vision in the right eye was 20/400 correctible to 20/70. Left eye vision was 20/30 correctible to 20/20. No diplopia was noted. His eyes were assigned a profile of "2." See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the 'PULHES' profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). A June 1964 service treatment record reflects a vague visual complaint, with notation of possible amblyopia in the left eye, and anisometropia. The June 1966 separation examination report reflects the Veteran was in good health, clinical evaluation referred to no visual difficulty, and his eyes were assigned a profile of "1." See Odiorne. The May 2013 VHA medical expert opinion notes the following: There is not a consistent agreement between the reviewed eye exam reports concerning the specific reason for the patient[']s reduced visual acuity of his right eye. Concerning whether his macular scar is from histoplasmosis, this is an acquired condition that can cause reduced vision, however, it is not clear as to when the patient developed the macular scar. A staphyloma is congenital in nature and if this is the cause of the patient[']s reduced visual acuity, this would be present from birth. End-stage glaucoma will also reduce visual acuity, but this was only mentioned in the exam from 8/6/97, and not in subsequent exam reports. In other words, if the patient had normal visual acuity as a child, but developed a macular scar from acquired histoplasmosis, then this would aggravate the patient[']s visual acuity. However, if the cause is from a congenital staphyloma, then his vision would be reduced from birth. With respect to the issue of whether the Veteran's defective visual acuity in the right eye is due to acquired histoplasmosis with macular scarring existing prior to service entrance, the May 2013 VHA opinion notes that other than the Veteran's historical report of poor vision since early childhood, there is no evidence to support a finding that histoplasmosis, macular scarring or atrophy existed prior to service entrance. Although the June 2010 VA examiner concluded that longstanding macular scarring and extensive atrophy in the right eye since childhood was of unknown etiology, it was noted that other eye care providers presumed it to be secondary to ocular histoplasmosis. The Veteran is competent to report his symptoms and although the June 2010 VA examination report reflects the Veteran stated his vision was 20/200 at age 17, and in August 2004 stated that he began wearing glasses at the age of seven or eight, a bare transcription of lay history is not transformed into competent medical evidence simply because it was transcribed by a medical professional. LeShore v. Brown, 8 Vet. App. 406 (1995). On the accompanying medical history to both the September 1963 reenlistment examination report and the June 1966 separation examination report, he denied wearing or having worn glasses or contact lenses. Regardless, the issue of whether his defective right eye visual acuity is related to service is not a simple medical condition susceptible to lay opinion. Thus, his opinion is not competent with respect to causation. Although defective visual acuity in the right eye was noted at service entrance, the Board finds the evidence does not establish that the underlying pathology, presumed histoplasmosis with macular scarring clearly and unmistakably existed prior to service entrance. Rather, as discussed below, defective visual acuity in the right eye noted at service entrance was attributed to refractive error. Thus, the presumption of soundness attaches with respect to acquired histoplasmosis and resultant macular scarring. Even assuming that defective visual acuity in the right eye due to acquired histoplasmosis with macular scarring existed prior to service entrance, and to the extent that the April 2011 VA opinion to the effect that it is as likely as not that macular scarring was not aggravated by service is in favor of the claim as the Veteran asserts, the objective evidence establishes that defective right eye visual acuity clearly and unmistakably was not aggravated by service. Rather, the record establishes improvement in right eye visual acuity during service, as reflected in the VHA opinion, which notes as follows: A record of visual acuity from June 1964 stated that the patient's uncorrected visual acuity of his right eye was 20/400, but corrected to 20/30. No exam was performed, however. The next documented exam report is from 8/6/97 with best-corrected visual acuity of counting fingers with a documentation of histoplasmosis with a long-standing central scar and end-stage glaucoma of the right eye. In an appeal for service-connection report from 1/20/10, it stated that an evaluation by the optometry department of the Marine Corps in San Diego listed the vision of the right eye as 20/200 (no date specified). In a re-enlistment exam in the Army from September 1963, it is stated that his vision was 20/400 and corrected to 20/70. Specifically looking at the patient[']s best-corrected visual acuities of his right eye, September of 1963 noted his vision as 20/70 (upon entering the service). June 1964 noted the right eye vision to be corrected to 20/30 (improvement from first entering service). The next exam report is August 1997 revealing a dramatic reduction to counting fingers of the right eye. So, while the patient was in the service, there is documentation that his vision improved from September 1963 to June 1964 and there is documentation that it declined to counting fingers on August 1997. Other than the documented visual acuities, there is no documented evidence that the patient[']s presumed histoplasmosis, macular scarring and atrophy were not aggravated by his military service. To the extent that the VHA opinion reflects use of a double negative, i.e., no documented evidence that histoplasmosis, macular scarring or atrophy was not aggravated by service, which could be construed as a favorable opinion regarding aggravation, an overall reading of the opinion makes clear that such was not the intended meaning, particularly in light of the notation that there were no manifestations of histoplasmosis, macular scarring or atrophy during service or until decades after separation, together with the noted improvement in right eye visual acuity during service. The typographical error, therefore, does not materially diminish the otherwise highly probative value of the VHA expert medical opinion. To the extent the Veteran's defective visual acuity in the right eye is congenital in nature, congenital and developmental defects, to include refractive error, are not "diseases or injuries" in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2012). VA's General Counsel has held, however, that service connection may be granted for diseases (but not defects) 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. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. Further, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and, if that superimposed disease or injury occurs during service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90. The September 1963 reenlistment examination report notes defective visual acuity attributable to refractive error, and the presumption of soundness does not attach with respect to refractive error in the right eye. Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). Thus, in the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Although the Veteran was seen in outpatient consultation in June 1964 for a vague visual complaint with notation of anisometropia (a condition in which the two eyes have unequal refractive power, that is, they are in different states of myopia (nearsightedness)), the evidence does not establish superimposed disease or injury. A December 1965 record reflects trauma to the left eye not the right, and on VA examination in June 2010, the Veteran denied a history of trauma or incapacitating periods due to eye disease. Regardless, as reflected above, the objective evidence establishes right eye visual acuity improved during service consistent with the normal June 1966 separation examination report in which the eyes were assigned a profile of "1." The VHA opinion further notes that the defective visual acuity in the right eye is most likely due to histoplasmosis, macular scarring, and atrophy, and not due to service-connected disabilities. Thus, service connection is not warranted on a secondary basis. In sum, defective visual acuity attributed to refractive error existed prior to service entrance, there was no superimposed disease or injury, and visual acuity improved during service and was normal at separation. In addition, presumed histoplasmosis with macular scarring and atrophy was not noted at service entrance, was not manifest during service, and has not been related to service or service-connected disability by competent evidence. In reaching a determination the Board has accorded very significant probative value to the VHA medical expert opinion. The opinion reflects thorough consideration of all the evidence of record, to include the VA opinions, and is consistent with the contemporaneous evidence. Such is far more probative than the Veteran's remote lay assertions. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for defective visual acuity in the right eye is not warranted. ORDER Service connection for defective visual acuity in the right eye is denied. ____________________________________________ M.G. MAZZUCCHELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs