Citation Nr: 1623847 Decision Date: 06/14/16 Archive Date: 06/29/16 DOCKET NO. 10-47 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for bilateral eye disability, to include astigmatism in both eyes, loss of sight in the left eye, tired eyes and watery vision, to include as secondary to service-connected traumatic brain injury (TBI). ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran had service from June 1967 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In June 2013, the Board reopened this matter and remanded it for further evidentiary development. In November 2014 and August 2015, the Board again remanded this matter for further evidentiary development. As will be discussed in greater detail below, substantial compliance with the Board's remand directives has been achieved. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT A bilateral eye disability, to include astigmatism in both eyes, loss of sight in the left eye, tired eyes and watery vision, was not incurred in service or otherwise related to service; an eye disability was not caused or aggravated by service-connected TBI. CONCLUSION OF LAW The criteria for service connection for a bilateral eye disability are not met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits pursuant to 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. VA's duty to notify has been satisfied through a notice letter dated May 2009 to the Veteran, which fully addressed all notice elements. Specifically, this letter informed the Veteran of what evidence was required to substantiate her claim for service connection, of the Veteran's and VA's respective duties for obtaining evidence, and the process by which disability ratings and effective dates are assigned. The Board, therefore, finds that all notices required by the Veteran Claims Assistance Act (VCAA) and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notices. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate her claims, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records are associated with the claims file. All post-service treatment records and reports identified by the Veteran have also been obtained. The Veteran was afforded a VA examination in November 2011 to determine the nature an etiology of any eye disability. The examiner diagnosed left eye blindness and bilateral glaucoma. The examiner opined that it was less likely than not that left eye blindness was related to service. The examiner provided a thorough rationale to support that opinion. The Veteran was then afforded a VA examination in July 2013. There, the examiner addressed the issue of aggravation. The examiner provided a supporting rationale to that opinion. In March 2015, the examiner provided an addendum opinion that glaucoma was not caused by or the result of a TBI and provided a rationale to support that opinion. Those opinions are clearly stated and supported by thorough, cogent rationales. Thus, the Board considers them adequate for determining the issue on appeal. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board notes that an opinion regarding whether glaucoma is directly related to service has not been rendered. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4). Under McLendon, in disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. In this case, however, as shown in the discussion below, there is no indication or argument that glaucoma may be associated with service, to include exposure to blasts therein. The Board also concludes that substantial compliance with the previous remand directives has been achieved. See Stegall, 11 Vet. App. at 271. Opinions with respect to whether glaucoma and left eye blindness have been caused or aggravated by the Veteran's service-connected TBI have been rendered. Further, VA examiners have provided thorough, cogent rationales to support those opinions. Finally, the Board notes that the August 2015 Board remand sought an opinion as to whether watery eyes, tired eyes or astigmatism was secondary to TBI. While an opinion was rendered in December 2015, any deficiency with regard to that opinion is deemed harmless. Indeed, as will be discussed in greater detail below, astigmatism is not considered a disease or injury for VA compensation purposes. Thus, service connection cannot be awarded for astigmatism as a matter of law. Further, while the Veteran has reported watery and tired eyes, those have not been shown to be disabilities apart from the Veteran's diagnosed disabilities, as will be explained in greater detail below. Thus, any deficiency with regard to the August 2015 remand is deemed harmless. Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (remand is not warranted when it would result in unnecessarily imposing additional burdens on the Board and Secretary with no benefit flowing to the Veteran). Given the above, the Board concludes that substantial compliance with the past remand directive has been achieved. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Merits Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service." 38 U.S.C.A. § 1154(b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected"). Further, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(b). During the pendency of the appeal, the evidence of record shows diagnoses of left eye blindness and bilateral glaucoma. See November 2009 VA Examination Report. While the Veteran has noted symptoms of watery eyes and tired eyes, see November 2008 Statement of Veteran, there is no evidence that those symptoms are wholly separate from any diagnosed eye disability. The Board finds it probative that no VA examiner who has examined the Veteran has diagnosed any eye disability separate from either left eye blindness or glaucoma. Specifically, the November 2009 VA examiner considered the Veteran's symptoms of watery and tired eyes but did not offer any diagnosis aside from left eye blindness or glaucoma. Further, no medical professional has diagnosed eye disabilities separate from left eye blindness or glaucoma. To the extent that these are symptoms due to the glaucoma, they are encompassed within the Board's analysis in denying service connection for glaucoma. To the extent that these symptoms are not due to glaucoma, the Board notes that a "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect." 38 U.S.C.A. § 1701(1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service connected disabilities"). However, in order for a veteran to qualify for entitlement to compensation under the pertinent statutes and regulations pertaining to direct service connection, a veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in service. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361-1362 (Fed. Cir. 2001). The analysis below reflects that there is no disease or injury underlying the symptoms of watery and tired eyes, other than, potentially, glaucoma. As these symptoms are not due to disease or injury, they cannot be due to disease or injury in service, and entitlement to service connection is not warranted for them. Finally, regarding diagnosed disabilities, the evidence reflects that the Veteran may have bilateral astigmatism. However, astigmatism is a refractive error. Refractive errors are not considered diseases or injuries for VA purposes, and provide no basis for service connection. 38 C.F.R. §§ 3.303(c), 4.9; Beno v. Principi, 3 Vet. App. 439, 441 (1992). In the absence of a superimposed disease or injury, service connection may not be allowed for refractive error of the eyes even if visual acuity decreased in service, as those are not a diseases or injuries within the meaning of applicable legislation relating to service connection. See id.; see also VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45,711 (1990). Thus, regarding the disabilities for which service connection is sought, the Veteran's claim is properly characterized as for left eye blindness and bilateral glaucoma, for the reasons expressed above as service connection cannot be awarded for mere symptoms (tired and watery eyes) or refractive errors (astigmatism). Regarding secondary service connection, the evidence is against the Veteran's claim. For left eye blindness, the September 2013 VA examiner explained that it was less likely than not that blindness was caused or permanently aggravated by the Veteran's TBI. This opinion was not a model of clarity as it referred to the TBI as not permanently aggravated by the left eye optic atrophy. However, the rationale indicated that there was "no sound clinical or literature evidence that can be considered causal involving TBI and central retinal artery occlusion." This statement indicating a complete lack of relationship is broad enough to encompass aggravation of the left eye disability by the service connected TBI. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). For glaucoma, in a March 2015 addendum opinion, the examiner opined that it was less likely than not that glaucoma was caused by or the result of the Veteran's TBI. As rationale, the examiner stated that there was no evidence in the literature that open angle glaucoma suspicion was in any way related to TBI. Essentially, the VA examiner has opined that there is no medical basis whatsoever for attributing left eye blindness or glaucoma to the Veteran's service-connected TBI. See September 2013 VA Examination Report; March 2015 Addendum Opinion. The Board concludes that the VA examiner's opinions regarding secondary service connection are highly probative as the examiner provided clear opinions and explained that there was essentially no medical basis for any relationship between left eye blindness or glaucoma to the Veteran's service-connected TBI. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (Board charged with assessing the probative value of all evidence of record). While the Veteran has argued that his eye disabilities are secondary to his service-connected TBI, these statements relate to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) ("sometimes 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"). To the extent that the Veteran's statements are competent, the Board finds that the specific, reasoned opinion of the trained health care provider who conducted the September 2013 VA examination and provided the March 2015 addendum are of greater probative weight than the Veteran's more general lay assertions. Likewise, the evidence is against a finding that the Veteran's eye disabilities are otherwise related to service. See Combee v. Principi, 4 Vet. App. 78 (1993). In this respect, the Veteran appears to contend that his eye disabilities are related to blasts he experienced in service, somewhat related to his argument that eye disabilities are secondary to service-connected TBI. See November 2008 Statement of Veteran. Service treatment records note eye complaints during service. In March 1978, the Veteran complained of eye irritation from excessive chlorine in the eyes. In May 1979, the Veteran complained of itching in the right eye and an assessment of scleritis was made. That same month, the Veteran noted blurred and watery vision. Upon separation, the Veteran's eyes were clinically evaluated as normal. See July 1979 Report of Medical Examination. Right distant vision was 20/25 and left distant vision was 20/20. Defective distant vision was noted upon separation. Regarding left eye loss of vision, the November 2009 VA examiner concluded that disability was less likely than not related to service. The examiner stated that the Veteran's vison loss was not related to exposure to blasts in 1968. The examiner explained that loss of vision began in 2008 and was the result of a central retinal artery occlusion which was caused by a plaque embolism that lodged in the Veteran's central retinal artery and that plaque is formed by high cholesterol and high blood pressure. The examiner expressly considered service treatment records noting astigmatism, watery eyes, blurred vision and headaches in service. The Board considers this opinion highly probative as the examiner thoroughly explained why left eye loss of vision was related to high cholesterol and high blood pressure, not any event in service, including exposure to blasts. See Caluza, 7 Vet. App. at 506. Again, while the Veteran has argued that his left eye vision loss is related to service, he is not competent to offer such an etiological opinion. See Jandreau, 492 F.3d at 1377, n. 4. Further, to the extent that his statements are competent, they are outweighed by the highly probative opinion of the November 2009 VA examiner, which is discussed above. Regarding glaucoma, the Veteran has made no argument that glaucoma is related to service. There is no evidence of glaucoma in service or for many years thereafter. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (stating that evidence of a prolonged period without medical complaint is one factor that may be considered in analyzing a service connection claim). As there is no evidence or argument associating glaucoma with service, to include exposure to blasts, service connection is not warranted under this theory. The Board notes the Veteran's combat service. See Form DD-214. This alone, however, does create a presumption that service connection is automatically warranted. See Collette, 82 F.32 at 392. Indeed, in this case, the Veteran does not contend that he experienced left eye blindness or glaucoma during combat. Rather, the evidence indicates that these disabilities developed many years following service (and combat). In that instance, some competent and probative medical evidence would be required to show a nexus between the disability and service. See id. Here, the Veteran has offered no such medical evidence supporting a finding that left eye blindness or glaucoma is related to service. For the foregoing reasons, astigmatism is not a disability for which service connection can be awarded; tired and watery eyes are symptoms that have not been attributed to disease or injury other than glaucoma or left eye blindness; and the weight of the evidence is against a finding that either left eye blindness or glaucoma is secondary to service-connected TBI, or otherwise related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and entitlement to service connection for bilateral eye disability, to include astigmatism in both eyes, loss of sight in the left eye, tired eyes and watery vision, to include as secondary to service-connected TBI, is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral eye disability, to include astigmatism in both eyes, loss of sight in the left eye, tired eyes and watery vision, to include as secondary to service-connected TBI, is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs