Citation Nr: 1756034 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 12-28 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a right eye disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from July 1958 to July 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Boston, Massachusetts (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's right eye disability, diagnosed as right eye retinal detachment, right amblyopia, and right strabismus with only light vision (right eye disability), pre-existed military service and did not chronically worsen therein. 2. The probative evidence of record does not show that the Veteran's current right eye cataracts are related to his active duty service. CONCLUSIONS OF LAW 1. A pre-existing right eye disability was not aggravated during active military service. 38 U.S.C. §§ 1110, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2017). 2. Right eye cataracts were not incurred in, or aggravated by, active duty service. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Prior to the initial adjudication of the Veteran's claim, a letter dated in September 2008 satisfied the duty to notify provisions. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. 396 (2009). Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, VA medical treatment records, and identified private treatment records have been obtained. 38 U.S.C. § 5103A, 38 C.F.R. § 3.159. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). In addition, the Veteran was provided with a VA examination in July 2017. Review of the examination report reflects that it is adequate in this case, as it was based on a review of the claims file, clinical examination, and interview of the Veteran. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, the opinion provided is based upon an accurate review of the facts in this case and provides sufficient explanation and rationale to support the opinion. Accordingly, the Board finds the July 2017 VA opinion as to the etiology of the Veteran's right eye disability to be adequate. Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran contends that service connection is warranted for a right eye disability, claimed as detached retina. He alleges that his right eye retina detached during military service. Establishing service connection generally requires medical or, in certain circumstances, lay 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and clear and unmistakable evidence demonstrates that the injury or disease was not aggravated by such service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (b) (2017). Here, the Veteran's January 1958 pre-induction examination reflects that the Veteran had defective vision and only light perception in his right eye. Visual acuity was 20/800 in the right eye at that time. A July 1958 induction examination notes that the Veteran had divergent strabismus to less than 20 degrees with only light vision in the right eye. Visual acuity was noted as 20/800 in the right eye. In a report of medical history, completed at that time, the Veteran reported a history of eye trouble with poor eyesight. Although the specific defects of right eye detached retina, right amblyopia, or right strabismus were not noted at service entrance, the pre-induction and entrance examination reflect that the Veteran had light perception only in the right eye. The service treatment records show that the Veteran was referred for an ophthalmologic consultation in April 1959 for a check up and because his eyes felt irritated with extended use. An old retinal detachment with a history of amblyopic right eye since infancy were noted. No further evaluation or treatment of the eyes are shown during the remainder of service. The May 1960 service discharge examination reflects that the Veteran had a history of detached retina of the right eye with light perception only in that eye. The physician's comments indicate that the Veteran reported vision problems that were not noticed until he was in school, and a doctor told him that he had a detached retina. A February 1988 private medical statement indicates that the Veteran had been blind in his right eye all of his life due to a childhood retinal detachment. The diagnosis was history of retinal detachment, right eye. An October 1997 private medical statement also shows that the Veteran had a history of retinal detachment in the right eye from childhood trauma. Thus, the evidence shows that the Veteran's detached retina is shown by the post-service private medical records to be the cause of the Veteran's right eye impaired vision with light perception only. Because the January 1958 pre-induction examination and the July 1958 entrance examination document a right eye impairment with only light vision in the right eye, which is shown by later evidence to have been caused by a retinal detachment, the Board finds that a right eye disability existed prior to acceptance and enrollment for active military service. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994); 38 C.F.R. § 3.304. Thus, the presumption of sound condition does not apply in this case. 38 U.S.C. § 1111. The Board will, therefore, consider whether service connection is warranted on the basis of aggravation of a pre-existing condition. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir 2004) (concluding that "if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder"). A pre-existing disease or injury will be considered to have been aggravated by military 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. § 1153 (2012); 38 C.F.R. § 3.306(a) (2017). It is the veteran who bears the burden of establishing aggravation under 38 U.S.C. § 1153. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir.1994). In other words, the Veteran must submit, or the record must contain, some evidence demonstrating that the pre-existing disability increased in severity during service for the presumption of aggravation to attach. See Wagner, 370 F.3d at 1096; Verdon v. Brown, 8 Vet. App. 529, 538 (1996) (stating that the question of whether a preexisting defect or injury underwent an increase in severity "must be answered in the affirmative before the presumption of aggravation attaches"). Once the presumption of aggravation attaches, it may be rebutted only by clear and unmistakable evidence demonstrating that any increase in disability was due to the natural progress of the disease, which burden is on the government. See Wagner, 370 F.3d at 1096; Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003); 38 C.F.R. § 3.306(b). As noted above, an April 1959 ophthalmologic evaluation notes the Veteran's reports of eye irritation with extended use. The consultation report shows that right eye vision without correction was light perception. The Veteran's separation examination reflects that he had light perception only in the right eye with visual acuity of 20/sub400 at service discharge. The service treatment records do not show deterioration of the Veteran's right eye vision, as he was found to have only light perception in the right eye at service entrance. During service, the records show that he had light perception only. At service discharge, he was again found to have only light perception in the right eye. Further, the service treatment records do not reflect a worsening of visual acuity during service. There is no evidence of any right eye trauma or other eye disease during service, and there is no indication that the Veteran's right eye disability worsened in severity during service. Additionally, the Veteran was assigned a physical profile of "3" for his eyes upon entry into service. See McIntosh v. Brown, 4 Vet. App. 553, 555 (1993) (citations omitted) (under the categories of PULHES, the "E" stands for "eyes"). The number "3" indicated that the Veteran had a medical condition or physical defect which required certain restrictions in assignments. See McIntosh, 4 Vet. App. at 555; Odiorne v. Principi, 3 Vet. App. 456, 457 (1991); Army Regulation (AR) 40-501. At separation from service, the Veteran was again assigned a physical profile of "3" for his eyes, which shows that the severity of the right eye disorder was the same at service entrance and separation. During a November 2003 hearing before the Board, the Veteran testified that he experienced no change in vision during service. He also denied any in-service right eye injury and stated that he did not think anything happened during service to make the right eye condition worse. In an August 2008 statement, the Veteran alleged that the kick/recoil from firing a weapon during service caused damage below his right eye. The service treatment records do not document any complaints of or treatment for a right eye injury caused by firing a weapon during service. Additionally, the Veteran's August 2008 statement is contradictory to his November 2003 testimony where he reported that he did not have a right eye injury during service and could not think of anything that happened during service to make the right eye condition worse. Because the Veteran's August 2008 statement contradicts his prior testimony denying any worsening of a right eye disability during service and is not corroborated by the service treatment records, the Board does not afford the Veteran's August 2008 report of a right eye injury during service to be probative. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2007) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). In July 2017, the Veteran underwent a VA examination. The examiner noted that the Veteran was not a reliable historian with regard to the onset of his right eye disability, and that he was confused. The examiner indicated that the Veteran's son tried to help provide details, but that he did not know. The examiner observed that the claims file indicated that poor vision was discovered when the Veteran entered school and/or around age 10. The Veteran's symptoms included right eye blindness, and the examiner indicated that the symptoms had stayed the same since onset. Visual acuity was 5/200 for right eye corrected and uncorrected near and distance vision. Pupil diameter was 3 millimeters in the right eye, and the right eye pupil was not round and reactive to light. There was an afferent pupillary defect present in the right eye. The examiner indicated that the Veteran had right eye vision limited to no more than light perception and that he was unable to recognize test letters at 1 foot or closer with the right eye. Additionally, the Veteran was not able to perceive objects, hand movements, or count fingers at 3 feet with the right eye. After conducting a full ophthalmologic examination, the VA examiner diagnosed right old retinal detachment, right amblyopia, right strabismus with only light vision, and right eye cataract. The VA examiner reviewed the Veteran's claims file and opined that the Veteran's pre-existing right eye disability did not worsen during military service. The examiner explained that the Veteran's vision at service entrance was light perception only, and that his vision in the 2000's was still light perception only. The examiner further noted that multiple subsequent eye examinations indicated that the Veteran's retinal detachment was old, and that his history was that his retinal detachment was from "childhood trauma" and was discovered when he first entered school, or that it was present since the age of 10. The examiner also stated that the Veteran's right eye cataract was not related to service, because "[c]ataracts are age induced." After thoroughly reviewing the Veteran's claims file, the Board finds that there is no evidence that the Veteran's pre-existing right eye disability underwent an increase in severity during service. Review of the service treatment records shows only a complaint of eye irritation during service. Although the service treatment records reflect the first documentation in the claims file of a detached retina, they indicate that this retinal detachment was old. Post-service medical evidence corroborates this finding, as it states that the Veteran experienced right eye retinal detachment occurred during the Veteran's childhood. Additionally, the service treatment records do not show any complaints of or treatment for any additional symptoms associated with the finding of retinal detachment which might suggest a worsening of the disability. The service treatment records also reflect that the Veteran's visual acuity remained the same throughout his active duty service, and that he had right eye light perception only with visual acuity of 20/800 at service entrance and right eye light perception only with visual acuity of 20/sub400 at service discharge. While the Veteran reported an in-service right eye injury in an August 2008 statement, as discussed above, the Board does not afford this statement probative weight because it contradicts the Veteran's prior statements of record. Last, the July 2017 VA examiner provided a probative medical opinion explaining that the Veteran's pre-existing right eye disability did not worsen during military service. The July 2017 VA opinion was based upon a review of the claims file and provides supporting rationale, and is probative in this case. Without some objective evidence demonstrating a worsening of the underlying pathology of the Veteran's right eye disability in service, the evidence does not support a finding of aggravation, and the presumption of aggravation does not attach. Verdon, 8 Vet. App. at 538. Thus, because the Veteran's right eye disability pre-existed his active military service and was not aggravated therein, the Veteran's claim for entitlement to service connection for a right eye disability, claimed as detached retina, must be denied. See 38 C.F.R. §§ 3.303, 3.304, 3.306; see also Wagner, 370 F.3d 1089. Service connection is also not warranted for right eye cataracts, as there is no competent medical or lay evidence showing that the right eye cataracts are related to the Veteran's military service. The evidence does show a current diagnosis of right eye cataracts. Davidson, 581 F.3d at 1316; Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). However, the evidence does not show a link between the Veteran's current right eye cataracts and his active duty service. The Veteran's service treatment records are negative for any complaints, diagnoses, or treatment for cataracts, and the Veteran has not reported that cataracts began during military service. Moreover, the July 2017 VA examiner opined that the Veteran's right eye cataracts are not related to his active duty service because cataracts are age-related. Further, the first medical evidence of symptoms of cataracts is dated in 2017, over 57 years after the Veteran's discharge from military service. See Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). As the probative evidence of record does not support a finding that the Veteran's right eye cataracts are causally related to, or aggravated by, the Veteran's military service, service connection is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as discussed above, the preponderance of the evidence is against the Veteran's claim; accordingly, doctrine is not for application. See 38 U.S.C. § 5107(b) (2012);Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right eye disability, diagnosed as retinal detachment and cataracts, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs