Citation Nr: 1338164 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-39 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for right amblyopia, bilateral optic nerve head drusen, bilateral nuclear sclerotic cataracts, and bilateral presbyopia, to include as secondary to service-connected diabetes mellitus Type II. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran had active service from February 1969 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This matter was previously remanded in May 2011 and January 2013. In July 2013, the Board again remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a VA medical opinion. The action specified in the July 2013 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). It is noted that the Veteran appealed the matters of higher initial ratings for bilateral upper extremity peripheral neuropathy to the United States Court of Appeals for Veterans Claims (CAVC). In a July 2013 decision, the Board reviewed the appeal and determined that a higher rating of 20 percent was warranted for right and left upper extremity peripheral neuropathy prior to March 18, 2013, and determined that a higher rating in excess of 40 percent was not warranted as of March 18, 2013 for right upper extremity peripheral neuropathy and a higher rating in excess of 30 percent was not warranted as of March 18, 2013 for left upper extremity peripheral neuropathy. This matter is no longer pending before the Board. FINDING OF FACT The Veteran's right amblyopia, bilateral optic nerve head drusen, bilateral nuclear sclerotic cataracts, and bilateral presbyopia are not related to a disease or injury in service; the Veteran did not sustain superimposed injury or disease during service; and any current eye disabilities are not caused or permanently aggravated by service-connected diabetes mellitus Type II. CONCLUSION OF LAW The criteria for entitlement to service connection for right amblyopia, bilateral optic nerve head drusen, bilateral nuclear sclerotic cataracts, and bilateral presbyopia, to include as secondary to service-connected diabetes mellitus Type II, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires competent and credible 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 current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic, the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). The Veteran's claimed eye disabilities are not recognized as a chronic condition by 38 C.F.R. § 3.309(a). Service connection may 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) (2013). Service connection is also permissible on a secondary basis for disability that is proximately due to, the result of, or chronically aggravated by a service-connected condition. 38 C.F.R. § 3.310(a) and (b) (2013). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). A veteran who served during a period of war, or after December 31, 1946, 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 evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (2013). For defects, infirmities, or disorders not noted when the veteran is examined, accepted and enrolled for service, the burden lies with the government to show, by clear and unmistakable evidence, that the defect, infirmity, or disorder both pre-existed and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or that (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006). The claimant is not required to show that the disease or injury increased in severity during service before VA meets both of these burdens. See VAOPGCPREC 3-2003. Service connection is not allowed for a congenital defect or for aggravation of a congenital defect as congenital defects are not considered to be injuries or diseases within the meaning of the statue. 38 C.F.R. § 3.303(c). However, service connection is possible if a disease or injury is superimposed over the congenital or developmental defect during service and there is a resultant disability. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991); VAOPGCPREC 82-90. "Congenital defects" are treated differently than "congenital diseases" in the context of VA disability compensation. A defect differs from a disease in that the former is "more or less stationary in nature" while the latter is "capable of improving or deteriorating." See Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); VA Gen. Couns. Prec. 82-90 at 2. More importantly "congenital defects" are excluded from the list of qualified diseases or injuries. Therefore, VA disability compensation may only be awarded in the event that an additional, service-connected disability is superimposed upon a congenital defect. Id. In contrast, "congenital diseases" are directly compensable and VA disability compensation may be awarded if a congenital disease is aggravated by a claimant's military service. Id. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation." 38 C.F.R. § 3.303(c). Refractive errors are defined to include astigmatism, myopia, hyperopia, and presbyopia. See M21-1MR, Part III, Subpart iv, 4.B.10.d. The Veteran is seeking entitlement to service connection for a number of eye conditions, which he has argued were either caused or permanently aggravated by his active military service, to include his service connected diabetes mellitus. The Veteran's service treatment records show that the Veteran entered service with bilateral refractive error for which he was assigned a physical profile. He also reported a history of wearing contact lenses. No other eye disability or defect was noted at the time of his October 1968 pre-induction physical. Congenital or developmental "defects" 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"). Thus, the presumption of soundness does not apply to any refractive error and it is found to pre-exist service. During active duty, in an April 1969 ophthalmologic consultation report, a finding of esphoria was noted. No visual defect or other disability is noted on the Veteran's September 1970 separation physical. The Veteran's vision was 20/20 bilaterally. Post-service, the Board can find no evidence that the Veteran complained of eye problems within one year of service or for many years after service. At an April 2009 VA examination, the Veteran was diagnosed with amblyopia of the right eye limiting best corrected visual acuity to 20/40, which was characterized as long standing since childhood. The Veteran was also diagnosed with bilateral optic nerve head drusen, characterized as unrelated to the Veteran's diabetes mellitus, and age related presbyopia and moderate nuclear sclerotic cataracts. In May 2012, the Veteran was afforded a VA examination to determine if the Veteran's amblyopia was related to service or pre-existed service or if any other of his claimed eye disorders (bilateral optic nerve head drusen, bilateral nuclear sclerotic cataracts, and bilateral presbyopia) were related to service. The examiner explained that amblyopia, also known as, "lazy eye", is a developmental disorder resulting in permanently reduced vision. It develops secondary to uncorrected refractive error, misalignment of the eyes, or deprivation of vision during childhood. Consequently, it is "unrelated to any issues during the time he was in service." However, the May 2012 VA examiner was not requested to address whether any of the Veteran's several eye disabilities are related to or aggravated by his service connected diabetes mellitus Type II. In March 2013, a VA examiner opined that the Veteran's right amblyopia, bilateral optic nerve head drusen, bilateral nuclear sclerotic cataracts, and bilateral presbyopia were not related to his diabetes mellitus Type II. However, the examiner did not sufficiently address the issue of whether such were aggravated by his diabetes mellitus Type II. In a July 2013 addendum, a VA examiner opined that: The patient has nuclear sclerotic cataract in his left eye and had a history of nuclear sclerotic cataract in the right eye, which has since been removed surgically. Diabetic cataracts are primarily cortical or posterior subcapsular in nature. This patient has no significant cortical or subcapsular cataract mentioned on his last exam. Diabetes can accelerate the progression of age related nuclear sclerotic cataracts. This is not the case for this patient whom judging by the records has or had nuclear sclerotic changes at the expected level for his age therefore it is less likely than not that diabetes aggravated this patient's cataracts. Amblyopia is a developmental defect of the central visual pathway of the brain. This has nothing to do with diabetes, it is developmental. Presbyopia is an age related loss of accommodation that happens universally to everyone at some point in their lives. Diabetes does not cause or aggravate this condition in any way. Optic nerve drusen are depositions of mucopolysaccharides and proteinaceous material that accumulate anterior to the lamina cribosa within the optic nerve head. There is no known association for optic nerve drusen with diabetes and diabetes does not aggravate this condition. This is likely a developmental or genetic condition. Based on all the above, service connection cannot be granted for any eye condition. The overwhelming weight of the evidence shows that the Veteran's claimed eye conditions were not incurred in or aggravated by service nor were they caused or permanently aggravated by the Veteran's service connection diabetes mellitus. The Veteran's amblyopia of the right eye and bilateral presbyopia have been characterized as congenital defects by the VA examiners, and there is no evidence that the Veteran suffered a superimposed injury or disease during his active service. As such, service connection for amblyopia of the right eye and bilateral presbyopia is not warranted. It was pointed out by the July 2013 VA examiner that amblyopia has nothing to do with service-connected diabetes mellitus. Similarly, presbyopia was described as not being caused or aggravated by service-connected diabetes mellitus. The July 2013 VA examiner also explained that the Veteran's bilateral optic nerve drusen is also most likely a developmental or genetic condition and that this condition is not known to be associated with or aggravated by diabetes mellitus. Whether deemed a congenital defect or disease, service connection for bilateral optic nerve drusen is not warranted as there is no evidence of a superimposed injury or disease in service or evidence that it had its onset in service or became aggravated therein. Secondary service connection is not warranted given the absence of evidence establishing that a service-connected disability caused or aggravated the condition. The VA examiners have also explained that the extent of Veteran's nuclear sclerotic cataracts was consistent with his age, and that it was less likely than not that the disability was permanently aggravated by his service connected diabetes mellitus. There is no evidence that this condition had onset in service or was caused by service-connected diabetes mellitus. It was observed that diabetic cataracts were primarily cortical or posterior subcapsular in nature, and that the Veteran's condition was not significant for either. While the Veteran himself believes that his eye conditions are related to his military service, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has eye problems due to his service connected diabetes mellitus is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disabilities is not competent evidence and is entitled to low probative weight. The Veteran has not submitted any competent medical evidence showing a relationship between his military service, including his service connected diabetes mellitus, and his claimed eye conditions. For all the above reasons, entitlement to service connection for right amblyopia, bilateral optic nerve head drusen, bilateral nuclear sclerotic cataracts, and bilateral presbyopia, to include as secondary to service-connected diabetes mellitus Type II, is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it 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. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in June 2009. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed conditions. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). ORDER Entitlement to service connection for right amblyopia, bilateral optic nerve head drusen, bilateral nuclear sclerotic cataracts, and bilateral presbyopia, to include as secondary to service-connected diabetes mellitus Type II, is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs