Citation Nr: 1718167 Decision Date: 05/24/17 Archive Date: 06/05/17 DOCKET NO. 10-40 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for bilateral eye disabilities, to include cataracts and retinal detachment. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1970 to December 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Milwaukee, Wisconsin, Department of Veterans Affairs (VA) Regional Office (RO). In May 2013, a hearing was held before the undersigned. A transcript is associated with the claims file. In December 2013 and July 2016, the Board remanded the appeal for further development. FINDINGS OF FACT No eye disease or disability has been shown to have been manifested as a result of the Veteran's period of active service. CONCLUSION OF LAW The criteria to establish service connection for bilateral eye disabilities, to include cataracts and retinal detachment, are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.308, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify & Assist There has been no allegation of any deficiency in VA's compliance with its statutory and regulatory duties to provide notice and to assist the Veteran in substantiating his claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In relevant part, 38 U.S.C.A. § 1154 (a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board must fully consider the lay evidence of record. Davidson, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno, 6 Vet. App. at 470 (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient to establish a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F. 3d at 1376-77. When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. 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 claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). III. Analysis The Veteran asserts that a bilateral eye disability is the result of cleaning chemicals getting into his eyes during his active service. As outlined below, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from an eye disability that manifested during, or as a result of, active military service. As such, the Board finds that service connection for a bilateral eye disability is not warranted. Service treatment records include a March 1970 pre-induction report of medical history in which the Veteran indicated he had eye trouble and wore glasses/contact lenses. The examining physician reported an eye refraction error. On pre-induction report of medical examination, a general clinical evaluation of the eyes was normal. His uncorrected distant visual acuity was recorded as 20/25, bilaterally. In the report, the service examiner also provided a "PULHES" medical profile. The PULHES medical profile system is designed to reflect the overall physical and psychiatric condition of an individual on a scale of one (high level of fitness) to four (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities" (to include the cervical spine), the "L" is indicative of "lower extremities" (to include the lumbar spine and hips), the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition." See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). After examination, the service examiner noted that the Veteran's PUHLES profile for the "E" category at entrance was a "two," indicating some deficiency in the Veteran's eyes. On December 1972 discharge and reenlistment report of medical examination, his uncorrected distant visual acuity was reported as defective vision in the right eye (OD) as 20/25 and in the left eye as 20/30. It was noted to be "NCD", otherwise meaning "not considered disabling." It was reported as an eye refraction error. A general clinical evaluation of the eyes was normal. In November 1977, the Veteran was seen for a routine eye screening. In December 1977, he was seen in the optometry department with a history of problems judging distance at night and blurred vision when reading. The diagnosis was hyperopia, astigmatism, and esophoria. On October 1978 Separation Report of Medical Examination, a general clinical evaluation of the eyes was normal. Although the recorded distant visual acuity is illegible, in the physician's summary the examiner reported that the Veteran's distant visual acuity was not considered disabling. The Veteran's service treatment records are negative for any complaints of, or treatment for, cataracts, retinal detachment, or any eye injuries related to cleaning chemicals. Post-service records do not contain any notation indicating treatment for a bilateral eye disorder until years after service. Treatment records from Dr. R. W. Claussen reveal that the Veteran underwent phacoemulsification of a cataract in the left eye in August 2002 and laser photocoagulation to a retinal tear right eye in November 2003. See Dr. R.W. Claussen treatment records from Tristate Surgery Center and Medical Associates. Treatment records form Dr. T.S. Thomassen and Mercy Health System showed that phacoemulsification of a cataract in right eye was completed in December 2007. VA treatment records include an Ophthalmology Consult dated in December 2009 that documented right eye posterior vitreous detachment, bilateral vitreous syneresis, and bilateral lens implants. Additional Ophthalmology Outpatient Notes dated in October 2010, November 2011, June 2012, April 2013, October 2013, July 2014, October 2014, and June 2016 included an assessment of suspected primary open angle glaucoma (PAOG), old posterior vitreous detachment, intermittent alternating estropia, esphoria at near, complex hyperopic astigmatism in the right eye, astigmatism in the left eye, hyperopia with presbyopia in the left eye, pseudophakia in both eyes, epiretinal membrane greater in the right eye than the left eye, cataract extraction in both eyes, and history of retinal hole status post laser retinopexy in the right eye (around 2003 or 2004). During his March 2013 hearing, the Veteran testified that he had a bilateral eye injury during service when he was doused with a chemical used to clean corrosion off of electronic equipment. While he noted that he did not receive in service treatment for an eye disability, he reported that he was told by a post service treating clinician that the cleaning chemical might have led to the development of cataracts. In light of the Veteran's testimony, in December 2013, the Board remanded his claim to provide him with a VA examination. The Veteran was afforded a VA eye examination in February 2014. During the examination, he was diagnosed with posterior vitreous detachment, bilaterally; right eye retinal hole; and epiretinal membrane bilaterally; suspected glaucoma, bilaterally, and pseudophakia, bilaterally. An internal eye examination revealed abnormalities in the macula described as epiretinal membrane, bilaterally; in the vessels, described a laser scars temporally, no retinal tears or detachments, in the right eye; and in the vitreous, described as posterior vitreous detachment, bilaterally. After examination, the examiner reported that there was no evidence of glaucoma. The examiner reported that the Veteran had a visual field defect; however, the examiner indicated that there was no decrease in visual acuity or other visual impairment attributable to the Veteran's cataract and other lens conditions or his retinal conditions (maculopathy). The examiner noted that other eye conditions were reported as ocular hypertension; history of retinal tear, status post laser retinopexy in the right eye with laser scars, but no sign of retinal tear or detachment on examination; and posterior vitreous detachment in both eyes with no evidence of retinal tear or detachment on examination. The examiner indicated that the Veteran did not have scarring or disfigurement attributable to any eye condition. With regard to the history of bilateral eye cataracts, the examiner noted that there was no description in the record of the cataractous lenses prior to cataract surgery; therefore she was unable to comment on their relationship to possible in-service chemical injury. However, she added that there were no surface ocular problems including scars, adhesions, corneal injuries, or anterior segment injuries to suggest damage from a prior chemical exposure. Regarding ocular hypertension, the Veteran's elevated intraocular pressure was not related to any chemical exposure in either eye as there was no evidence of injury to either eye (such as conjunctival/scleral scarring, anterior chamber inflammation or synechia, corneal scars). Regarding epiretinal membrane, either eye, that examiner stated that it was mild and most likely related to the age related change of posterior vitreous detachment, which caused a gliotic reaction on the surface of the macula where the vitreous was previously attached. The examiner opined that this was likely an age related change and not related to any chemical exposure to either eye. Regarding posterior vitreous detachment, either eye, the examiner opined that this was likely an age related change given the patient's age of 64 and evidence of complete vitreous separation in either eye. The examiner added that chemical exposure of either eye is unlikely to result in posterior vitreous detachment. Regarding, the Veteran's history of retinal tear status post laser retinopexy, right eye, the examiner reported that the retinal appeared flat and detached on examination today. The examiner opined that this finding was likely related to the process of the posterior vitreous detachment and refractive error. There was not a history of trauma to the eye. The examiner explained that a retinal tear is unlikely related to a chemical exposure of either eye. To summarize, the examiner opined that none of the Veteran's current eye conditions had their onset during service or were related to any service event, including the Veteran's self-reported chemical exposure to the eyes. In July 2016, the Veteran remanded the Veteran's claim to obtain any treatment records that documented the Veteran's eye health prior to his caract surgeries in 2002 and 2007 to assist the examiner in determining if the Veteran's cataracts status post surgery with intraocular lens placement was due to service. A July 2016 VA Report of General Information clarified that VA treatment records pertaining to the Veteran's eyes, especially cataracts, prior to the 2002 and 2007 surgeries did not exist and his earliest date of enrollment at a VA facility was April 29, 2009. In July 2016 correspondence from VA, the Veteran was specifically asked to complete and return the enclosed VA Form 21-4142, Authorization to Disclose Information the Department of Veterans Affairs (VA) and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA), so that VA could obtain treatment from non-VA providers for his bilateral eye disabilities prior to his 2002 and 2007 cataract surgeries to include records from the Tri-State Surgery Center, Mercy Health System, and Medical Associates Clinic on his behalf or to submit the records himself. To date, neither the Veteran nor his representative has responded to this request. In a September 2016 addendum, the examiner reviewed the Veteran's records and opined that the cataracts status post-surgery intraocular lens, were less likely as not (less than 50/50 probability) caused by or a result of the incident when the Veteran's eyes were doused with a cleaning chemical or any service event. The examiner reasoned that on review of the Veteran's medical record there were no surface ocular problems including scars, adhesions, corneal injuries, or anterior segment injuries to suggest damage from a prior chemical exposure or any service event that would have caused his cataracts. Therefore, it was less likely as not his surgically repaired cataracts had their onset during service or were related to any in-service disease or injury to include the incident when the veteran's eyes were doused with the cleaning chemical. Regarding the Veteran's defective uncorrected distant visual acuity reported on his entrance and separation examinations and service treatment records, while service connection may be granted for superimposed disability on a constitutional or developmental abnormality, there is no evidence that such occurred in this case. Cf. VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); see also Carpenter v. Brown 8Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). As a matter of law, the claim for service connection for vision problems related to a refractive error, must be denied. Further, in February 2014, the VA examiner found that there was no decrease in visual acuity or other visual impairment attributable to the Veteran's cataract and other lens conditions or his retinal conditions (maculopathy). With respect to direct service connection for an eye disorder other than refractive error, treatments for bilateral cataracts and right eye retinal detachment began approximately 25 years after the Veteran's service discharge and none of this medical evidence shows a nexus between these conditions and an injury or disease during service. In this case, the February 2014 and September 2016 examiners are Ophthalmology Residents who are qualified through education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). In February 2014, the examiner thoroughly reviewed the claims file and interviewed and examined the Veteran. She supported her opinion through citation to the Veteran's pertinent medical history, explaining her basis for finding that the current eye disabilities were not the result of the Veteran's service, or chemical exposure. The examiner has explained that there is no evidence of conjunctival/scleral scarring, anterior chamber inflammation or synechia, corneal scars, to which his bilateral eye cataracts and ocular hypertension could be attributed. However, she added that since there was no description in the record of the cataractous lenses prior to cataract surgery; she was unable to comment on their relationship to possible in-service chemical injury. The examiner also found that that the epiretinal membrane was less likely related to chemical exposure, but rather most likely related to the age related change of posterior vitreous detachment, which caused a gliotic reaction on the surface of the macula where the vitreous was previously attached. Furthermore, the examiner opined that none of the Veteran's current eye conditions had their onset during service or were related to any service event, including the Veteran's self-reported chemical exposure to the eyes. Development was ordered in an attempt to obtain treatment records prior to the cataract surgeries, but the Veteran did not submit any additional records or authorize VA to obtain them, the claims file was then forwarded to another VA examiner for an addendum opinion regarding the bilateral cataracts. The September 2016 VA examiner thoroughly reviewed the claims file and supported his opinion through citation to the Veteran's pertinent medical history, explaining his basis for finding that the cataracts status post-surgery intraocular lens, of either eye was not related to any in-service event, including when the Veteran's eyes doused with a cleaning chemical. The examiner reasoned that on review of the Veteran's medical record there were no surface ocular problems including scars, adhesions, corneal injuries, or anterior segment injuries to suggest damage from a prior chemical exposure or any service event that would have caused his cataracts. For these reasons, the Board finds the February 2014 and September 2016 VA examiners' opinions to be highly probative as to the issue of whether the Veteran has a bilateral eye disability that is related to active service. Though there are private and VA treatment records pertaining to the Veteran's disability, none offer an etiological opinion linking the Veteran's eye disabilities to military service. Thus, the private treatment records and VA treatment records also do not support a finding of nexus between the Veteran's current bilateral eye disability and active service. The only contrary opinion of record comes from the Veteran himself who believes there is a link between service and his current bilateral eye disabilities. A lay person may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions such as a dislocated shoulder. See Jandreau, 492 F.3d at 1372 (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As a lay person, however, the Veteran is not competent to offer testimony on the complex medical question of the etiology of his eye disabilities. The Veteran has suggested that his impaired vision began in service and continued since. The record does show refractive errors that were identified in service and since; but the Veteran lacks the medical expertise to diagnose his symptoms as manifestations of the acquired eye disabilities diagnosed long after service. The Veteran's opinion is therefore of less probative value than that of the medical expert who has the requisite training to provide such an opinion. In summary, the preponderance of the evidence is against finding a link between the Veteran's current acquired bilateral eye disabilities, to include cataracts and retinal detachment, and his active service. Here, the most probative evidence shows that the Veteran's current bilateral eye disabilities are not related etiologically to service. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107 (b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral eye disabilities, to include cataracts and retinal detachment, is denied ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs