Citation Nr: 1334561 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-39 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an eye disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1960 to January 1968. He had subsequent Reserve service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In his September 2010 appeal, the Veteran requested a Board hearing via videoconference. In an October 2010 letter he withdrew his request for a hearing. The Board has reviewed the Veteran's Virtual VA file and finds that there are no additional records contained therein which are relevant to the present claim. FINDINGS OF FACT 1. Except for prescription glasses the Veteran's eye examination at service entrance was normal. 2. There is clear and unmistakable evidence demonstrating that congenital hypertropia existed at the time of the Veteran's entry into active military service; however, the evidence does not clearly and unmistakably show that his pre-existing disability was not worsened in service by a superimposed injury. 3. Strabismus and diplopia are related to active service. CONCLUSION OF LAW The criteria for service connection for strabismus and diplopia have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the favorable disposition of the claim of entitlement to service connection, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. II. Background History On his November 1960 report of medical history upon service entrance, the Veteran indicated that he wore prescription glasses, but had no trouble with his eyes. On the Veteran's November 1960 enlistment examination report, evaluation of his eyes was normal. According to a December 1960 service treatment record (STR), the Veteran was diagnosed with diplopia and hypertropia which the examiner noted were "E.P.T.S." or existing prior to service. According to a June 1961 STR, the Veteran was "shot in the face with a blank cartridge" from an M-1 rifle during training. Diagnoses were bilateral corneal abrasion, Commotio Retinae, bilateral traumatic iridocyclitis, traumatic keratitis, heterotropia, left hypertropia secondary to left superior oblique palsy, and bilateral compound myopic astigmatism. A November 1961 STR reflects that the Veteran experienced an apparent drop in his correctible visual acuity and that he compensated for his hypertropia by tilting his head. It was also noted that the Veteran's treatment "did not seem as effective as it should." According to a June 1962 STR, the Veteran sought additional treatment because he felt that his new glasses did not fully correct his left hypertropia. Consequently, in July 1962, the Veteran underwent surgery for a tenotomy of the eye tendon of the left inferior oblique muscle. Post surgery, the Veteran was diagnosed with heterotropia and congenital left hypertropia. Thereafter, an August 1965 STR shows that the Veteran was hit in the eye with cooking grease while on duty and experienced a corneal stain on his right eye. He was treated at a hospital with ointment and homatropine and discharged with a traumatic right eye corneal abrasion. The Veteran noted that he experienced eye trouble on his December 1967 report of medical history upon discharge from service. On his December 1967 service discharge examination report, evaluation of the Veteran's eyes was normal. Post-service VA treatment records from October 2007 to August 2008 show an active prescription for eye ointments. In October 2008, VA received the Veteran's claim of entitlement to service connection for his left eye injury. In June 2009, the Veteran underwent a VA Compensation and Pension (C&P) examination of his eyes. During this examination, he complained of diplopia for the last five years. The examiner noted that the Veteran had diplopia in all fields of gaze and in all distances; there were incipient cataracts in each eye; and there was no evidence of any injury to either eye. The examiner was unable to determine the etiology of the Veteran's diplopia because he had no access to the Veteran's claims file or medical records. The examiner diagnosed the Veteran with diplopia, incipient cataracts, and noted that the Veteran underwent strabismus surgery in 1962. After a review of the Veteran's claims file, the VA examiner in an October 2009 addendum noted that the Veteran had congenital hypertropia, and that his cataracts were age-related. The examiner also stated that the Veteran had residuals of congenital strabismus, as his 1962 surgery had not completely corrected his congenital hypertropia. The examiner stated that the Veteran's "problems [were] not related to any injury in military service." III. Legal Criteria and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, the VA must show by clear and unmistakable evidence both (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3- 2003; see also Wagner v. Principi, 370 F.3d 1089, 196 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306. Congenital or developmental "defects" are not diseases or injuries within the meaning of applicable legislation concerning service connection. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2013); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). As a result, they automatically rebut the presumption of soundness and are therefore considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9; see also Quirin v. Shinseki, 22 Vet. App. 390, 394, 396, 397 (2009); Terry v. Principi, 340 F.3d 1378, at 1385-86 (Fed. Cir. 2003) (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). Service connection for a congenital disability, however, may be awarded if it is shown that such congenital defect was aggravated through superimposed injury during active service. See VAOPGCPREC 82-90 (July 18, 1990). As previously noted, the Veteran's November 1960 enlistment examination did not note any eye defects. The record, however, clearly shows that the Veteran was diagnosed with congenital hypertropia, one month into service. Additionally, in the October 2009 VA addendum, the examiner stated that the Veteran has congenital hypertropia, in pertinent part. The medical evidence thus clearly and unmistakably establishes that the Veteran's congenital hypertropia pre-existed service. According to Dorland's Illustrated Medical Dictionary, hypertropia is vertical strabismus, in which there is permanent upward deviation of the visual axis of an eye, and is a refraction of the eye. See Dorland's Illustrated Medical Dictionary 898, 1617(32nd ed. 2012). Refractive errors are specifically cited in VA regulations as defects rather than diseases. 38 C.F.R. § 3.303(c) ("Congenital or developmental defects, refractive error of the eye... are not diseases or injuries within the meaning of the applicable legislation."). In the case of a congenital defect, service connection is only possible when the record contains evidence of a superimposed in-service injury or disease that caused additional disability. See 55 Fed. Reg. 45711 (Oct. 30, 1990) (citing to VAOPGCPREC 82-90 (July 18, 1990)). The Board is unable to show by clear and unmistakable evidence that the Veteran's residual congenital strabismus was not subjected to a superimposed in-service injury. The Veteran's STRs show a worsening of his eyes. In his report of medical history for his entrance examination in November 1960, the Veteran checked that he had worn glasses, but that otherwise, his eyes were ok. The enlistment examination noted no problems with the Veteran's eyes. While it was determined that the Veteran's hypertropia existed prior to service in December 1960, it was not until after his June 1961 eye injury during service that the Veteran started to complain about eye problems. A September 1961 consultation sheet noted that there was an apparent drop in the Veteran's correctible visual acuity in the last year. The examiner wrote that the Veteran's prescription did not seem as effective as it should have been. In November 1961, the Veteran had two eye consultations. In the first, he complained about the gradual loss of his eyesight, and how his glasses were not as effective as they used to be. In the second, he reiterated that his vision was failing for the last year and had not been wearing his glasses for the last 3 months because of his eye condition. In July 1962, the Veteran complained that his new glasses did not fully correct his left hypertropia and he underwent left eye surgery to remedy the problem. In August 1965, the Veteran injured his eyes a second time and spent 2 days in the hospital. In the October 2009 addendum, the VA examiner determined that the Veteran's eye problems were not related to any injury in military service. However, the examiner did not address whether the Veteran's congenital eye defect was subjected to a superimposed injury during service. While the VA examiner mentioned that the Veteran experienced an eye injury in June 1961 and underwent eye surgery in July 1962, neither the June 2009 examination nor the October 2009 addendum addressed what, if any, impact the Veteran's 1961 eye injury, his 1962 surgery, or his second eye injury in August 1965 had on the Veteran's congenital eye disability as a superimposing injury during service. Based on this chronology of events, the lack of a VA medical opinion addressing the issue of a superimposing injury aggravating the Veteran's congenital eye defect, and the lack of clear and unmistakable evidence that the Veteran's congenital strabismus was not subjected to a superimposed in-service injury, the benefit of the doubt must be resolved in the Veteran's favor. The Veteran is also currently diagnosed with diplopia and cataracts. Additionally, the Veteran has reported that he developed diplopia immediately following the July 1962 eye surgery during service and ever since. When asked to determine the etiology of the Veteran's diplopia, the June 2009 VA examiner indicated that its etiology was unknown. Lay evidence can 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As a result the Veteran, as a layperson, is competent to report having experienced diplopia, or double vision, during service and ever since, as such condition is readily observable. 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). The Board has no reason to doubt the credibility of the Veteran's statement. Therefore, the Board concludes that service connection for diplopia is also warranted. However, service connection for incipient cataracts is not warranted. The October 2009 VA examiner indicated that the Veteran's incipient cataracts are not related to service, but attributable to the normal aging process. Given that evidence, in conjunction with the other evidence of record, the Board is unable to show by clear and unmistakable evidence that the Veteran's residual congenital strabismus was not aggravated by service. Although the Veteran is currently diagnosed with cataracts, this is age related, and not related to service. For this reason, the Board finds that the Veteran should be presumed to have been in sound condition when he entered service and that his residual congenital strabismus was aggravated by service. Diplopia was first manifest during service and has continued since. Thus service connection for strabismus and diplopia is warranted. ORDER Service connection for strabismus and diplopia is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs