Citation Nr: 1338719 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 12-08 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for an eye condition other than amblyopia of the right eye. 2. Entitlement to service connection for amblyopia of the right eye. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to December 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. Defective vision was noted on the May 1965 entrance examination. 2. Defective vision in the right and left eyes did not increase in severity during service. 3. There is no credible evidence of an acute eye injury in service. 4. Cataracts and retinoschisis were not manifested in service and are not shown to be related to service by competent evidence. 5. Refractive errors, to include presbyopia, anisometropia, myopia, and astigmatism are not diseases or injuries within the meaning of applicable legislation. 6. To the extent that any of the eye disabilities noted are congenital or developmental in nature, they are not shown to have pathology superimposed from disease or injury in service. 7. The Veteran's current right eye amblyopia commenced during active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for an eye condition other than amblyopia of the right eye are not met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2013). 2. The criteria for service connection for right eye amblyopia are met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter dated in January 2010. As for the content of the VCAA notice, the document provided the Veteran with notice regarding what information and evidence was needed to substantiate his service connection claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the Veteran's service treatment records and VA and private treatment records. A VA examination was not conducted. For reasons explained in greater detail below, the Board does not find the Veteran's account of an in-service event, and a right eye injury specifically, to be credible. Therefore, further development for a VA medical examination or for a VA medical opinion under the duty to assist is not required. Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. Principles and Theories of Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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 (obvious or manifest) 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). 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; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306. 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 C.F.R. §§ 3.304, 3.306. 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Congenital or developmental defects and refractive error of the eye are not diseases or injuries within the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2013). Refractive errors are defined to include astigmatism, myopia, hyperopia, and presbyopia. See M21-1MR, Part III, Subpart iv, 4.B.10.d. 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). 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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. 38 C.F.R. § 3.159(a)(1). 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 The Veteran's May 1965 enlistment examination shows he was observed to have heterophoria (abnormal). The report also indicated defective vision was present. The Veteran's distant vision was 20/70 in the right eye and 20/25 in the left eye. Near vision was 20/200 in the right eye and J-2 in the left eye. The Veteran was assigned a "2" in the category of Eyes, on the Physical Profile Serial ("PUHLES"). See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the "PUHLES" 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 fitness for retention in the military service.). On the corresponding Report of Medical History, the Veteran reported a history of eye trouble and that he wore glasses. In August 1965 the Veteran underwent visual acuity testing. The pertinent finding was right eye amblyopia. A February 1974 clinic record shows the Veteran broke his glasses and was evaluated for a new prescription. On a periodic physical examination in September 1974, the Veteran was noted to have distant vision of 20/40 in both eyes, corrected to 20/20 in both eyes. The Veteran was assigned a "1" in the PUHLES category for his eyes. Service treatment records do not include any complaints, findings, or treatment of an acute injury to the right or left eye. The Veteran's June 1975 separation examination shows distant vision was 20/70 in the right eye and 20/25 in the left eye, corrected to 20/25 in the right eye and 20/20 in the left eye. A finding of 'myopia, partially corrected,' was noted on the report. The Veteran was given a "1" in the PUHLES category for his eyes. A June 2008 post-service private record shows the Veteran was complained of and was assessed with decreased vision in the right eye. He was also noted to have abnormal visual acuity with 20/50 vision in the right eye and 20/75 vision in the left eye. VA treatment records from 2011 to the present show complaints of decreased visual acuity and blurriness. On evaluation in February 2011, the Veteran denied having sustained a prior eye injury. On examination, visual acuity, corrected with glasses was recorded as 20/50 in the right eye and 20/30 in the left eye. On evaluation in November 2011 visual acuity was recorded as 20/40 in the right eye and 20/30 in the left eye. On evaluation in February 2012 visual acuity, corrected with glasses was recorded as 20/50 in the right eye and 20/25-1 in the left eye. Pertinent diagnoses in the VA records include mixed, moderate cataracts; retinoschisis, refractive error, astigmatism, anisometropia, amblyopia and presbyopia. In the Veteran's February 2011, Notice of Disagreement, he reported that he injured his right eye in service. He indicated that while firing a M16A1 rifle, brass and heat hit his right eye causing trauma. Analysis The evidence reflects that the Veteran is currently diagnosed as having decreased visual acuity of both eyes. He is also currently diagnosed with cataracts, retinoschisis, refractive error, astigmatism, anisometropia, amblyopia of the right eye and presbyopia. Decreased Visual Acuity As defective vision was noted at service entrance, the presumption of soundness does not attach. 38 U.S.C.A. § 1111. If a pre-existing disorder is noted upon entry into service, a veteran cannot bring a claim for service connection for that disorder, but may bring a claim for aggravation of that disorder. In that case, 38 U.S.C.A. § 1153 applies and the burden falls on the veteran to establish aggravation with regard to his claimed disability. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under 38 U.S.C.A. § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153 (West 2002); see also 38 C.F.R. § 3.306 (2012); Jensen, 19 F.3d at 1417. On the question of aggravation, there is simply no competent and/or credible evidence that the pre-existing defective vision of the eyes underwent any permanent increase in severity during the Veteran's period of active service. There were no complaints or treatment for eye trouble in service. The service records only reflect that the Veteran received an evaluation for a new pair of glasses after his broke. The Veteran's current report of an eye injury in service is simply not credible. An eye injury is not shown in the service records and the Veteran denied having sustained injury to his eyes to VA medical personnel in February 2011. Due to the inconsistency between the service records, the Veteran's February 2011 statements and his current report of an eye injury, the Board finds his assertion is not credible. As the assertion is not credible, it has no probative value. It is further noted that the separation examination showed distant vision was 20/70 in the right eye and 20/25 in the left eye, corrected to 20/25 in the right eye and 20/20 in the left eye. This is the same visual acuity that was present upon entrance into service. Furthermore, the Veteran was given a "1" in the PUHLES category for his eyes at separation which was an improvement from the "2" that was assigned upon entrance into service. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). The Board finds that the probative evidence of record demonstrates that the Veteran's pre-existing defective vision underwent no increase in severity during service. In other words, it was not aggravated by service. See Wagner v. Principi, supra; see also VAOPGCPREC 3-2004. For this reason, service connection for an eye condition manifested as defective vision, on the basis of aggravation of a pre-existing disorder of defective vision, is not warranted. Cataracts and Retinoschisis With respect to the current diagnoses of cataracts and retinoschisis, the Veteran essentially contends that these disabilities are related to military service. However, the service treatment records are negative for findings of cataracts or retinoschisis. The first evidence of such disorders was not shown in the record until in 2008, which is 33 years after service discharge. The Veteran also has not identified or provided competent lay or medical evidence which supports his contention that these disabilities are related to military service. The Veteran is competent to describe his current eye symptoms of impaired visual acuity and blurred vision because these are readily observable through the lay senses. 38 C.F.R. § 3.159; see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, a determination as to the etiology of the current cataracts and retinoschisis is a complex medical question that requires medical expertise. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also, Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer). This is particularly so where there is a span of over 33 years between military service and the clinical evidence of pertinent symptomatology. No factual foundation has been established to show the Veteran is qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between his current cataracts and retinoschisis and his active service. Therefore, any lay opinion proffered by the Veteran to establish causal nexus is not competent evidence. The Veteran was not provided with a VA examination to determine the etiology of these particular disorders. However, as there is no evidence of a cataracts, retinoschisis, or any type of acute eye injury in service; no competent evidence showing that the cataracts and retinoschisis may be linked to any aspect of active service; and no reported continuity of symptomatology, an examination is not necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Significantly, the Board does not find the Veteran's account of an in-service eye injury credible. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). As there is no credible lay evidence or competent medical evidence in favor of the claim, service connection for an eye condition - characterized as cataracts and retinoschisis - is not warranted. Refractive Error, Astigmatism, Anisometropia and Presbyopia With respect to the remaining eye conditions of refractive error, astigmatism, anisometropia and presbyopia, the Board notes that congenital or developmental defects and refractive errors of the eye are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Therefore, the current refractive errors affecting the Veteran's eyes - astigmatism, anisometropia and presbyopia- are not considered disabilities for VA purposes and cannot serve as a basis for awarding service connection. To the extent that any of the Veteran's current eye disabilities are congenital or developmental defects, absent evidence of aggravation during service by a superimposed disease or injury in service, there can be no entitlement to service connection. Here, there is no evidence of an acute eye injury or superimposed disease shown in service. As noted, the service treatment records contain a finding of 'myopia, partially corrected.' Myopia is a refractive disorder. See, Dorland's Illustrated Medical Dictionary (28th Ed. 1994) at 1094. The Veteran's report of having sustained an injury to his right eye in service from firing a rifle is not credible for the reasons already noted. Therefore, service connection for an eye condition - characterized as refractive errors of the eye to include astigmatism, anisometropia, and presbyopia - is not warranted. See 38 C.F.R. §§ 3.303(c), 4.9; Monroe v. Brown, 4 Vet. App. 513 (1993); Carpenter v. Brown, 8 Vet. App. 240 (1995). The preponderance of the evidence is against the claim of an eye disability other than amblyopia, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Right Eye Amblyopia With respect to amblyopia of the right eye, the Board observes that such disability was not noted on the Veteran's entrance examination, thus negating it any question of pre-service existence and aggravation of a pre-existing disability. Nevertheless, it was diagnosed in an August 1965 service treatment record. Moreover, current VA treatment records, including a February 2012 treatment record, show a diagnosis of amblyopia in the right eye. After resolving any benefit of the doubt in favor of the Veteran, the Board finds that entitlement to service connection for amblyopia of the right eye is warranted. To this extent, the claim is granted. ORDER Service connection for an eye condition other than amblyopia of the right eye is denied. Service connection for amblyopia of the right eye is granted. To this extent the claim is granted. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs