Citation Nr: 1418350 Decision Date: 04/24/14 Archive Date: 05/02/14 DOCKET NO. 07-13 683A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for fascioscapulohumeral muscular dystrophy (FSHD). 2. Entitlement to service connection for a bilateral eye disability, to include as secondary to service-connected FSHD. 3. Entitlement to an initial compensable rating for bilateral flat feet. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from December 2001 to June 2005. This matter is on appeal from the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO). In January 2010, the Veteran and his wife testified at a Board hearing held before a Veterans Law Judge in Los Angeles, California. A copy of the transcript is of record. In April 2012, the Veteran was informed that the Veterans Law Judge who conducted the hearing is no longer available to consider the appeal as an individual member of the Board, and thus was offered the opportunity to have another hearing before a current member of the Board. The Veteran responded with a request to appear before the Board in Washington, DC. In October 2012, the Veteran and his wife testified at a Board hearing before the undersigned Veterans Law Judge in Washington, DC. A copy of the transcript is of record. The record was held open for 60 days and in October 2012, the Veteran submitted multiple internet articles pertaining to FSHD with a waiver of initial RO review. In a May 2010 decision, the Board, in pertinent part, remanded the claim of entitlement to service connection for a bilateral eye disability for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The issues of an initial rating in excess of 10 percent for FSHD and an initial compensable rating for bilateral flat feet are REMANDED to the RO, via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran has refractive error of bilateral, compound, myopic astigmatism. 2. The current bilateral eye disability is not proximately caused by or aggravated by his service-connected FSHD. CONCLUSIONS OF LAW 1. Refractive error is not a disease or injury within the meaning of the law providing compensation benefits. 38 C.F.R. § 3.303(c) (2013). 2. The criteria for service connection for a bilateral eye disability as secondary to service-connected FSHD have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the duty to notify has been satisfied by April 2005, September 2005, and January 2007 letters. Regarding the duty to assist, the evidence of record includes the Veteran's service treatment records, private treatment records, statements from the Veteran, August 2005 and August 2010 VA examination reports, and a January 2014 Veterans Health Administration (VHA) medical expert opinion. The Veteran was provided a copy of the VHA opinion and an opportunity to respond. He was also provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge in October 2012 and there was compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). There is no indication that additional records exist, and if they did, that they would provide a basis to grant this claim. The Board finds no further assistance to the Veteran with the development of evidence is required. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection for a Bilateral Eye Disability 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). 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 (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995); Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In this decision, the Board has considered the lay evidence as it pertains to the issue. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board has reviewed all of the evidence in the Veteran's file. 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. See 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 the claim on appeal. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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(b); 38 C.F.R. § 3.102. An August 2010 VA ophthalmology examination report notes the Veteran's current diagnosis of refractive error of bilateral, compound, myopic astigmatism. Refractive error is not a disease or injury within the meaning of the law providing compensation benefits. Specifically, congenital or developmental defects, including refractive errors of the eyes, are not "diseases or injuries" for disability compensation purposes under VA law. 38 C.F.R. §§ 3.303(c); Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). Myopia, astigmatism, and presbyopia, are all considered to be forms of refractive error. See VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 4, Section B, Topic 10. Therefore service connection is denied as a matter of law. Service connection may be granted for disability due to aggravation of a constitutional or developmental defect by a superimposed disease or injury. See VAOPGCPREC 82-90. Therefore, the Board will also consider the Veteran's contentions that service connection is warranted for a bilateral eye disability secondary to his service-connected FSHD. At a January 2010 Board hearing, he testified that, upon his diagnosis of muscular dystrophy during service, he was referred to an eye clinic and diagnosed with astigmatism. He also testified at the October 2012 Board hearing that his current eye disability is related to FSHD. Thereafter, the Veteran submitted internet articles pertaining to FSHD and its relationship to the eye. Two articles note the following: Some abnormalities in the blood vessels of the retina . . . are often detected in people with FSHD. Fortunately, very few people have any problems with vision resulting from this, but it should be monitored by an eye doctor. For reasons that aren't clear, the problem is generally more common in infantile-onset FSHD. Symptoms [of FSHD] may include eyelid dropping . . . An eye exam may show changes in the blood vessels in the back of the eye . . . Possible complications [include] vision loss (rare). The Board acknowledges the submission of these internet articles. However, a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). In this case, the Board finds the identified articles carry less probative weight because they are not associated with an opinion by a medical professional to address its application with the Veteran's current eye disability. In a September 2011 VA addendum report, the same VA examiner who conducted the August 2010 VA examination, concluded after reviewing the claims file and medical literature, that: The Veteran does not have pathologic myopia nor does he have muscular dystrophy of Fukuyama. I found no reference associating myopia astigmatism and/or myopia and/or astigmatism with FSHD. In my opinion, the Veteran's minimal, bilateral, compound, myopic astigmatism, that has not changed significantly since 2004, is, more likely than not unrelated to his FSHD and is, at least as likely as not, a developmental error of refraction. In a January 2014 VHA medical expert opinion, Dr. L. E. concluded it is less likely than not that the Veteran's bilateral myopic astigmatism is caused or aggravated by his FSHD. The following rationale was provided: Myopia and astigmatism are errors of refraction. Astigmatism is due to the corneal surface having a non spherical curvature to it requiring correction at a specific axis. The lens of the eye can also have a change in its curvature resulting in lenticular astigmatism which is also corrected with spectacles. Myopia is due to the focal point of the eye being in front of the retina and requiring correction to adjust that focal point to be on the retina for a clear image. FSHD is documented as to affect the facial muscles and especially those around the mouth and eyes. Lid closure can be affected with poor lid closure at night and issues of exposure keratopathy and dry eyes due to poor lid function. The lid function issues are completely unrelated to refractive error. Another eye finding in FSHD involves abnormal vessels in the retina which can lead to vision loss in rare cases. The Veteran does not have any evidence of this as noted by his examinations. Retinal vasculopathy would not affect the corneal curvature of astigmatism and does not result in myopia. Retinal vasculature and refractive error are unrelated. Although FSHD does have eye findings, they are related to lid function and retinal vasculopathy and not to errors of refractions such as the patient's myopic astigmatism. The September 2011 VA addendum and January 2014 VHA medical expert opinions were rendered after a review of the claims file and examination of the Veteran's eyes in August 2010. The opinions are supported with sufficient rationale and based on an accurate factual history. As a result, the Board finds these opinions are adequate and of probative value against the Veteran's claim on appeal. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran is not competent and with the appropriate medical training and expertise to offer an opinion on a medical matter, including the etiology of his eye disability. See Bostain v. West, 11 Vet. App. 124, 127 (1998); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). The question of causation, in this case, involves a complex medical issue that the Veteran is not competent to address. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the evidence of record, the Board finds that the Veteran's current bilateral eye disability is not proximately caused by or aggravated by his service-connected FSHD. Such competent evidence has been provided by the medical opinions of record, and the Board attaches greater probative weight to these conclusions than to his statements. See Cartright, 2 Vet. App. at 25. For these reasons and bases discussed above, the Board finds that the evidence is against the claim for service connection for a bilateral eye disability on direct and secondary bases. As a result, this claim must be denied and the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a bilateral eye disability, to include as secondary to service-connected FSHD, is denied. REMAND In the May 2010 decision, the Board also granted service connection for FSHD and bilateral flat feet. In a May 2010 rating decision, the RO assigned a 10 percent disability rating for FSHD and a noncompensable rating (0 percent) for bilateral flat feet. The Veteran disagreed with the May 2010 decision with regard to these issues in a July 2010 personal statement. Where the record contains a timely notice of disagreement (NOD) as to an issue, but no statement of the case (SOC), the issue must be remanded to the originating agency to issue a SOC and to provide the claimant an opportunity to perfect the appeal. See Manlicon v. West, 12 Vet. App. 238 (1999). In this case, a SOC was not issued for these identified issues, thus the Board finds that a remand is required. Accordingly, the case is REMANDED for the following action: Issue a SOC to the Veteran, addressing the issues of (1) entitlement to an initial rating in excess of 10 percent for FSHD, to include consideration of all applicable diagnostic codes, and (2) entitlement to an initial compensable rating for bilateral flat feet. The Veteran and his representative should be advised of the time limit in which he may file a Substantive Appeal. Then, only if the appeal is timely perfected, should the issue(s) be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs