Citation Nr: 1805042 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 12-29 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for an eye disability, other than bilateral ocular hypertension and bilateral tilted optic discs, to include myopic astigmatism, bilateral nuclear sclerotic cataracts, bilateral posterior vitreous detachments, bilateral pingueculae, dry eye syndrome, and peripheral retinal degeneration. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Casey, Associate Counsel INTRODUCTION The Veteran had active service from September 1960 to October 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In August 2015 and July 2017, the Board remanded the issue for evidentiary development. The directives have been substantially complied with and the matter again is before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT An eye disability, other than bilateral ocular hypertension and bilateral tilted optic discs, was not manifested in service and is not shown to be causally or etiologically related to any disease, injury, or incident in service, including herbicide exposure. CONCLUSION OF LAW The criteria for service connection for an eye disability, other than bilateral ocular hypertension and bilateral tilted optic discs, are not met. 38 U.S.C. §§ 1110, 1113, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309, 4.9 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The record shows that the Veteran suffers from multiple eye impairments. The Veteran has generally asserted that he suffered vision problems during service, which have continued to the present. The Veteran first claimed entitlement to service connection for an eye condition in September 2009. In an August 2015 decision, the Board found the Veteran was entitled to service connection for bilateral ocular hypertension. In a July 2017 decision, the Board determined that the Veteran was not entitled to service connection for bilateral tilted optic discs because this condition was a congenital defect, and there was no additional disability as a result of a superimposed disease or injury incurred during service. The current decision only relates to an eye disability other than bilateral ocular hypertension and bilateral tilted optic discs. The Veteran has been diagnosed with nuclear sclerotic cataracts, bilateral posterior vitreous detachments, bilateral pingueculae, dry eye syndrome, and peripheral retinal degeneration. The Veteran contends that these eye conditions began in service, and has argued that they were caused by exposure to herbicides. Legal Criteria Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) medical 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 present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain designated herbicide agents during such service, absent affirmative evidence to the contrary. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307(a)(6)(iii). In this case, the Veteran has verified service in Vietnam, and is presumed to have been exposed to herbicides. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e) (2017). VA has determined that there is no positive association between exposure to herbicides and any other condition for which the secretary has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 81,332 (Dec. 27, 2010); see also Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange, 77 Fed. Reg. 47,924 (Aug. 10, 2012). In this case, the Veteran has not been diagnosed with any presumptive herbicide-related disease as enumerated under 38 C.F.R. § 3.309 (e), and therefore presumptive service connection based on exposure to herbicides is not warranted. However, despite the presumptive regulations, a claimant may still establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board notes that the Veteran's service treatment records prior to 1979 have been deemed unavailable and in April 2010 the AOJ made a Formal Finding on the Unavailability of Service Treatment Records. In such cases, where service treatment records have been lost or destroyed through no fault of the veteran, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis in this case has been undertaken with the heightened obligation set forth in Cuevas and O'Hare in mind. It is noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). A congenital or developmental defect is not considered a disease or injury for VA purposes. 38 C.F.R. §§ 3.303 (c), 4.9. Therefore, a congenital defect, as distinguished from a disease, generally may not be service-connected as a matter of law. Further, the general presumption of soundness upon entry into service, as set forth in 38 C.F.R. § 3.304 (b), does not apply to congenital defects. However, service connection may be granted if a congenital defect is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability. 38 U.S.C. §§ 1111, 1131; VAOPGCPREC 82-90 (July 18, 1990); see also Quirin v. Shinseki, 22 Vet. App. 390 (2009). The U.S. Court of Appeals for Veterans Claims (Court) has noted that a VA General Counsel opinion on the subject distinguishes the two classes of disabilities on the basis that "a defect differs from a disease in that the former is 'more or less stationary in nature' while the latter is 'capable of improving or deteriorating.'" Quirin, 22 Vet. App. at 394 (quoting VA Gen. Coun. Prec. 82-90 (July 18, 1990)). Analysis Service treatment records indicate difficulty with eyesight during service, particularly characterized by blurred distance vision and blurred near vision. A February 1979 examination revealed tilted discs. A January 1982 eye examination noted tilted discs, and the examiner diagnosed myopic astigmatism. Private, VA, and other government treatment records are silent for any medical evidence which would show that the Veteran's eye conditions were related to service, or that they were aggravated by superimposed disease or injury during service. Indeed, the Veteran has not alleged any specific injury to have caused or aggravated his eye conditions other than presumed herbicide exposure. The Veteran underwent a February 2017 examination to consider the nature and etiology of his eye conditions. In addition to bilateral ocular hypertension and bilateral tilted discs, the examiner noted a compound myopic astigmatism, bilateral nuclear sclerotic cataracts, bilateral posterior vitreous detachments, bilateral pingueculae, dry eye syndrome, and peripheral retinal degeneration. The examiner stated that compound myopic astigmatism was a congenital condition of refraction, and had not been aggravated by any superimposed in-service injury, to include ocular hypertension and herbicide exposure. The examiner explained that ocular hypertension and herbicide exposure do not change refractive error, and peer-reviewed medical literature does not support an association between changes in refractive error and ocular hypertension or herbicide exposure. The examiner also stated that the bilateral nuclear sclerotic cataracts, bilateral posterior vitreous detachments and bilateral pingueculae were not congenital conditions, but were not caused or aggravated beyond normal progression by service-connected bilateral ocular tension and were not causally related to herbicide exposure. In July 2017, the Board determined that this opinion did not adequately address whether bilateral nuclear sclerotic cataracts, bilateral posterior vitreous detachments, and bilateral pingueculae had their onset during service. While the examiner noted that a review of the service treatment records showed the conditions were not "diagnosed" in-service, a pertinent question before the Board is whether it is at least as likely as not that the conditions were incurred during service. 38 C.F.R. § 3.303 (d). With regard to the diagnosed dry eye syndrome and peripheral retinal degeneration, the examiner did not provide any express opinion as to whether those conditions had their onset during service or were caused by in-service exposure to herbicides. After the Board remand, a VA examination was conducted in August 2017. After an in-person examination and review of the VA e-folder, the examiner concluded that it was less likely than not that the Veteran's bilateral nuclear sclerotic cataracts, bilateral posterior vitreous detachments, and bilateral pingueculae had their onset during the Veteran's active duty service. The examiner cited the Veteran's service treatment records (STRs), which were silent for these diagnoses, thereby indicating that onset was not in service. The examiner also cited peer-reviewed medical literature which supports that these conditions are commonly caused by age and UV exposure. The VA examiner diagnosed the Veteran with dry eye syndrome and peripheral retinal degeneration, which were identified as diseases and not congenital or developmental defects of the eye or refractive errors. However, the VA examiner found that it was less likely than not that these conditions were incurred in service, because STRs were silent for these conditions. STRs were also silent for an event or injury that would cause or aggravate these conditions. The August 2017 VA examiner also considered where the Veteran's eye conditions were associated with herbicide exposure. The examiner concluded that the conditions were less likely than not caused by or aggravated by the Veteran's in-service herbicide exposure. The examiner noted that peer-reviewed medical literature does not support that herbicide exposure association would cause or aggravate these eye conditions. For the eye disabilities other than myopic astigmatism, the Board finds the August 2017 VA examiner's opinion to be entitled to great probative weight. This opinion was provided after an examination of the Veteran and a review of the updated claims file. The examiner addressed the Veteran's assertions as to the origins of his eye conditions, and the VA examiner provided an adequate rationale for the conclusions reached based on the medical record, the examination findings of record, and medical literature. Monzingo v. Shinseki, 26 Vet. App. 97 (2012) (examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion). The Board acknowledges the Veteran's assertions that he has an eye disability related to service. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether any eye condition is related to his military service, to include exposure to herbicide or aggravation by a superimposed injury or disease, requires medical expertise that the Veteran has not demonstrated since eye conditions can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). As to the Veteran's diagnosis of myopic astigmatism, service connection cannot be granted as a matter of law. The Board notes that astigmatism and myopia are refractive errors of the eyes. 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), 4.9, 4.127; Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). As to the Veteran's reports of decreased visual acuity since enlistment into active service, the Board notes that the Veteran must have actual pathology, other than refractive error, to support impairment of visual acuity. See VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 4, Section B, Topic 10. In this case, the Veteran's service treatment records clearly indicate that he was prescribed spectacles for correction of visual acuity in connection with his myopia diagnosis. Although service connection cannot be granted for myopia and astigmatism on a direct basis, service connection may be granted for such disability due to aggravation of a constitutional or developmental defect by a superimposed disease or injury. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia 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. 38 C.F.R. §§ 3.303(c), 4.9. Thus, VA regulations specifically prohibit service connection for refractive error unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (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). In this case, the February 2017 examiner found that the myopic astigmatism had not been aggravated by a superimposed disease or injury during service, and therefore service connection for myopic astigmatism is not warranted. In sum, the Board finds that the preponderance of the evidence is against the Veteran's claim seeking service connection for an eye disability other than bilateral ocular hypertension and bilateral tilted optic discs. As the preponderance of the evidence weighs against the Veteran's claim, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an eye disability, other than bilateral ocular hypertension and bilateral tilted optic discs, is denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs