Citation Nr: 1342572 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 05-19 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for an eye disability, to include decreased vision, claimed as retinal neuropathy, to include as secondary to service-connected type II diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This case was previously before the Board in May 2007, January 2008, October 2010, February 2012 and May 2013, when it was remanded for additional procedural and substantive development. For the reasons discussed below, the Board finds that there has been substantial compliance with its prior remands. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has recharacterized the issue on appeal as service connection for an eye disability, to include decreased vision, claimed as retinal neuropathy. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The Veteran testified at an August 2007 Travel Board hearing before the undersigned Veterans Law Judge of the Board held at the RO. A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. The only eye disability that the Veteran had in service is refractive error in the left eye, which is not shown by the most probative competent clinical, or competent and credible lay, evidence to have been subjected to a superimposed disease or injury which created additional disability. 2. Any current eye disability other than the left eye refractive error has not been shown by the most probative competent clinical, or competent and credible lay, evidence to be causally related to the Veteran's service, nor is it causally related to, or aggravated by, his service-connected type II diabetes mellitus. CONCLUSION OF LAW An eye disability, to include decreased vision, was not incurred in, or aggravated by, active service, and is not proximately due to, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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 in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned in the award of the benefit sought. The Board finds that the RO's letters dated in October 2004, March 2006, and February 2008 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, 19 Vet. App. at 490. In compliance with the Board's January 2008 remand, in the February 2008 letter, the Veteran was provided notice as to the information and evidence necessary to substantiate the claim for service connection on a secondary basis under the provisions of 38 C.F.R. § 3.310. Even if the Veteran was not provided the necessary notice prior to the initial adjudication of the claim, the Board finds that providing him with adequate notice in the March 2006 and February 2008 letters followed by readjudications of the claim in the September 2006, August 2009, November 2011, March 2013 and September 2013 supplemental statements of the case, "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006). With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA and private treatment records, VA examination reports with addenda, an independent medical opinion, the Veteran's records from the Social Security Administration (SSA), as well as his lay statements in support of his claim. In compliance with the Board's January 2008 and October 2010 remands, private medical records from Dr. Gandhi were obtained and associated with the claims file. Furthermore, the Veteran was provided VA eye examinations in November 2004 and March 2012 and a supplemental opinion was obtained in July 2013. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). After finding that the March 2012 VA medical opinion with a February 2013 addendum was not sufficient, the claim was last remanded by the Board in May 2013 in order to obtain a supplemental medical opinion that addresses the relationship of the Veteran's right eye disability to his service or his service-connected diabetes mellitus. In July 2013, a VA examiner provided the requested opinion. The Board finds that the aggregate of the March 2012, February 2013 and July 2013 VA medical opinions is adequate to decide the claim of service connection because each examiner reviewed an accurate history and provided a nexus opinion on direct incurrence and secondary service connection bases, with adequate bases for the opinions; the Veteran's history and complaints were recorded; the examination reports in November 2004 and March 2012 set forth detailed examination findings. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) Thus, further examination is not necessary regarding the issue on appeal. Based on the foregoing, the Board finds the RO substantially complied with the Board's prior remand directives. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing, the VLJ identified the issue and noted the elements of the claim that were lacking to substantiate the claim for service connection. The VLJ asked questions to ascertain the onset of symptoms, duration of symptoms, and any nexus between current disability and service or a service-connected disability. The Veteran was assisted at the hearing by an accredited representative from the American Legion. The VLJ also asked questions to solicit information regarding any potentially relevant outstanding records. The Veteran indicated during the hearing that there were outstanding VA treatments records. On remand, these records, as well as private medical records identified by the record, were associated with the claims file and VA examinations with addenda were obtained. Thus, the submission of overlooked evidence was not only suggested, but obtained. Otherwise, no pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative that has yet to be obtained. The hearing focused on the evidence necessary to substantiate the Veteran's claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), consistent with Bryant. The Veteran is seeking service connection for an eye disability, to include decreased vision. Specifically, he claims that he currently has diabetes due to his exposure to herbicides in service and that his deteriorating vision is secondary to his diabetes. In this regard, service connection is currently in effect for type II diabetes mellitus. At the August 2007 Board hearing, the Veteran testified that he was legally blind in the left eye at the time of service entrance; however, his vision in the right eye was good. He claimed that his current decreased vision is due to diabetic retinopathy. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Generally, in order to establish service connection for the claimed disorders, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In certain circumstances, lay evidence may also be competent to establish a medical diagnosis or medical etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Secondary service connection may also be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310 (2013). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 488 (1995). Service treatment records include an August 1967 note from a private optometrist, which notes that the Veteran's visual acuity was 20/20 in the right eye and 20/400 in the left eye. It was further noted that the left eye was not correctable and that the Veteran had high hyperopia and amblyopia since childhood. His May 1968 service entrance examination notes diagnoses of a refractive error and amblyopia. A July 1968 service treatment report notes that the Veteran's visual acuity was 20/20 in the right eye and 20/400 in the left eye. Otherwise, service treatment records are negative for any other eye condition. VA medical records dated from January 2004 to May 2004 reflect the Veteran's complaints of blurry or decreased vision in the right eye. It was noted that the Veteran was legally blind and that he had a long history of poor vision in the left eye with severe decrease in vision in the right eye over the previous two years. It was also noted that he had poor visual acuity in the left eye as a child. The ophthalmology note stated that the Veteran had amblyopia in his left eye secondary to hyperopic anisometropia. The Veteran complained of monocular diplopia out of his right eye and severe glare and haloes around bright objects. The assessments were old amblyopia in left eye, factitious field constriction, and cataracts in the right eye with central opacity and induced myopia. The Veteran underwent a cataract extraction in May 2004, with a diagnosis of senile cataract. In an August 2004 VA ophthalmology note, the Veteran complained of episodes of amorosis fugax in the right eye for the past 2 to 3 years. The assessments were status post cataract extraction (CE)/posterior chamber intraocular lens (PCIOL) in the right eye in May 2004, doing well objectively. An August 2004 vocational rehabilitation ophthalmologist report reflects diagnoses of refractive amblyopia in the left eye, unknown etiology of decreased visual acuity status post cataract surgery in the right eye, and NS cataract in the left eye. The Veteran was provided a VA eye examination in November 2004. The claims file was not available for review. The Veteran reported blurry vision in both eyes and occasional episodes of complete "blacking out" of the vision for 30 to 40 minutes. He indicated that he had always had poor vision in the left eye secondary to amblyopia and that he recently had cataract surgery in the right eye, which did not improve his vision. Following a clinical examination, the diagnoses were amblyopia in the left eye, legally blind; pseudophakic right eye; functional visual loss in the right eye and inconsistent visions by various testing methods; and borderline diabetes mellitus, with no retinopathy for both eyes. A May 2006 SSA disability determination report shows that the Veteran was found disabled for SSA purposes with a primary diagnosis of coronary artery disease, heart failure, and polyarthritis; and secondary diagnoses of diabetes, hypertension, sleep apnea, amblyopia and depression. In March 2012, the Veteran was provided a VA eye examination. The VA examiner indicated that the claims file was reviewed. The examiner stated that the Veteran had never been diagnosed with an eye condition other than congenital or developmental errors of refraction; it was noted that he had left eye refractive amblyopia per the claims file. Visual acuity examination revealed uncorrected distance and near vision of 20/50 in the right eye and 5/200 in the left eye. The examiner noted that the Veteran had preoperative cataract in the left eye and postoperative cataract extraction in the right eye. The examiner further noted that the Veteran had refractive amblyopia which was the cause of the 20/200 visual acuity in the left eye. In a February 2013 addendum, the VA examiner opined that the Veteran's visual impairment in the left eye was caused by refractive amblyopia and was not caused or aggravated by any metabolic disorder. In this regard, the examiner noted that an examination dated May 6, 1968 showed the Veteran had 20/400 vision in the left eye with a diagnosis of refractive error amblyopia (a congenital defect). With regard to the right eye, the examiner opined that the Veteran had no visual impairment in the right eye, and that the pseudophakia and cataract were not visually significant and were not caused or aggravated by any metabolic disorder or military service. The examiner concluded that the Veteran had no visual or ocular condition caused or aggravated by military service. A February 2013 independent medical opinion stated that it is less likely as not that the Veteran's amblyopia in the left eye was proximately due to or aggravated by his diabetes mellitus or exposure to herbicides because amblyopia is a congenital condition in which the eye functions slightly out of focus and it is the most common eye condition seen in babies and small children; it is often referred to as 'lazy eye.' The opinion further stated that there was no medically based scientific evidence to link this eye condition with the diabetes mellitus or exposure to herbicides. A supplemental VA medical opinion was obtained in July 2013. The VA examiner opined that it is at least as likely as not that any visual impairment, including pseudophakia and cataract diagnosed in 2004, was not caused by active service; and was not caused or aggravated by service-connected type II diabetes mellitus. In support of this opinion, the examiner noted that the Veteran had refractive amblyopia in the left eye, which was not caused by or aggravated by any metabolic disorder, diabetes mellitus, or military service, because a May 1968 examination showed that he had 20/400 vision in the left eye with a diagnosis of "refractive error amblyopia," a congenital condition. With regard to the right eye, the examiner noted that in April 2004, the Veteran had nuclear sclerotic cataract in the right eye. However, the examiner noted that this type of cataract is not caused by or aggravated by any metabolic disorder, diabetes mellitus, or military service; it is caused by the normal aging process and a lifetime of normal daily exposure to natural sunlight. The examiner added that pseudophakia resulted from the cataract and opined that pseudophakia was not caused by or aggravated by any metabolic disorder, diabetes mellitus, or military service. Therefore, the examiner concluded that the Veteran has no visual or ocular condition caused by or aggravated by any metabolic disorder, diabetes mellitus, or military service. After considering the totality of the evidence of record, the Board concludes that service connection is not warranted for an eye disability, to include decreased vision. The Veteran's refractive error in the left eye is the only eye disability shown in service. In this regard, it is significant to point out the March 2012 VA examiner's opinion that the Veteran's visual impairment in the left eye was caused by refractive amblyopia. For purposes of entitlement to benefits, the law provides that refractive errors of the eyes are congenital or developmental defects and not disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9 (2013). In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia, and astigmatism, 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. Id. Thus, VA regulations specifically prohibit service connection for refractory errors of the eyes unless such defect was subjected to a superimposed disease or injury which created additional disability. See 38 C.F.R. §§ 3.303(c), 4.9; VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (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); Sabonis v. Brown, 6 Vet. App. 426 (1994). It is not disputed that the Veteran had decreased vision and refractive amblyopia in the left eye when he entered service. It was specifically noted on his May 1968 service entrance examination. Service treatment records establish that he had refractive error and amblyopia since childhood. Because refractive error and amblyopia is not a disability subject to compensation for VA purposes, service connection for a left eye disability is precluded. In this regard, the aggregate of the March 2012, February 2013 and July 2013 VA medical opinions shows that the Veteran's refractive amblyopia in the left eye was not caused by, or aggravated by, active duty service, to include exposure to herbicides; or was proximately caused by, or aggravated by, service-connected diabetes mellitus. On this basis, the Board also finds that the evidence does not show that the Veteran's refractive amblyopia was subjected to a superimposed disease or injury which created additional disability. Additionally, the Board acknowledges that current eye disability is established with respect to the Veteran's cataract and pseudophakia in the right eye despite the March 2012 VA examiner's finding that the Veteran's cataract and pseudophakia in the right eye was not visually significant. To that effect, VA treatment records reflect that the Veteran underwent cataract surgery for the right eye in May 2004. An April 2004 VA treatment report revealed a diagnosis of "Cataract OD with central opacity and induced myopia." The August 2004 ophthalmology report indicated the Veteran's vision in the right eye, with best correction was 20/400, indicating visual impairment. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement a current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency o the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim); see also Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013) (considering the application of McClain on a recent diagnosis predating the filing of a claim). However, the Veteran's right eye disability first manifested many years after service and is not related to service or to a service-connected disability. Service treatment records are entirely negative for any right eye disability. The first medical evidence of abnormalities in the right eye was in 2004, at which time the Veteran reported deteriorating vision in the right eye for the previous two to three years. Furthermore, the opinion of the VA examiner in July 2013, who reviewed the Veteran's claims file, concluded that the Veteran's nuclear sclerotic cataract and pseudophakia were not caused by, or aggravated by, military service or any metabolic disorder, including diabetes mellitus. In support of this opinion, the examiner stated that the type of the Veteran's cataract is caused by normal aging process and a lifetime of normal daily exposure to natural sunlight and that the pseudophakia resulted from the cataract. The Board finds this VA opinion to be competent, highly probative medical evidence as to whether any current the Veteran's eye disability was caused by his service, or proximately due to or aggravated by service-connected disability. It was based on a thorough review of the Veteran's records and was supported by an adequate rationale consistent with the other medical evidence of record. To that effect, the Board notes that the opinion provided by the July 2013 VA examiner is consistent with the pre-operative/post-operative diagnosis of senile cataract as noted in a May 2004 VA eye surgery report. As noted above, the Veteran contends that his decreased vision is due to retinal neuropathy associated with his service-connected diabetes. The Veteran is certainly competent to testify as to symptoms capable of lay observation, such as decrease in visual acuity. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge); Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature). While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance. In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent. However, the Veteran has not demonstrated that he has expertise in medical matters. As to a diagnosis of retinal neuropathy or a nexus opinion relating his current eye disability to his service or service-connected diabetes, the Board finds that a diagnosis of retinal neuropathy is too complex an issue, one typically determined by persons with medical training in the field of ophthalmology, to lend itself to lay opinion evidence. Thus, the Veteran is not competent to render a medical diagnosis of retinal neuropathy or provide an etiology opinion in this case. Further, the Board attaches far greater probative value to the opinion of the VA examiners, including the November 2004 VA examiner who specifically found that the Veteran had no retinopathy for both eyes. Based on the evidence of record, the Board finds that a preponderance of the evidence is against the claim for service connection for an eye disability on a direct or secondary basis. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for an eye disability, to include decreased vision, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs