Citation Nr: 18148572 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 11-02 268 DATE: November 7, 2018 ORDER Entitlement to service connection for left eye exotropia with amblyopia (claimed as vision in left eye), is denied. FINDING OF FACT The Veteran’s pre-existing left eye exotropia with amblyopia was noted on entrance into service and clearly and unmistakably was not aggravated beyond its natural progression as a result of such service. CONCLUSION OF LAW The criteria for service connection for left eye exotropia with amblyopia are not met. 38 U.S.C. §§ 1111, 1131, 1153, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 August 1979. This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2009 rating decision of the North Little Rock, Arkansas Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2012, the Veteran testified at a Travel Board hearing before a Veterans Law Judge that no longer works at the Board. A transcript of the hearing has been associated with the record. The Veteran was informed that the Veterans Law Judge who conducted his February 2012 hearing no longer works at the Board and was offered the opportunity for a new hearing in an April 2016 letter. The Veteran requested another hearing and such a hearing was scheduled for March 2017. However, the Veteran canceled this scheduled hearing in March 2017. Therefore, the Veteran’s hearing request is deemed to be withdrawn. In February 2014, January 2015, and July 2017, the Board remanded the instant matter to the agency of original jurisdiction (AOJ) with instructions to further develop the case prior to final appellate review. The case was then returned to the Board for final review and disposition. Pertinent Statutes and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). A preexisting injury or disease will be considered to have been aggravated by 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; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). "[I]f 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." See Wagner v. Principi, 370 F.3d 1096 (Fed. Cir. 2004); see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In such claims, the claimant has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. See Wagner, supra; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Alternatively, service connection may also be established by showing that a disease is chronic or that there is a continuity of symptomatology after service. See 38 C.F.R. § 3.309(a); § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331. 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). In this regard, the Veteran’s left eye disability is not considered a chronic disease subject to presumptive service connection and, therefore, such laws and regulations are inapplicable to the instant claim. 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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for left eye exotropia with amblyopia. The Veteran contends that his preexisting left eye exotropia with amblyopia was aggravated while he was in the service. According to the January 2016 VA examination, the Veteran is currently diagnosed with amblyopia and exotropia in his left eye. Service treatment records indicate that the Veteran reported problems with his vision at his entrance examination. The July 20, 1976 Medical History Report noted that the Veteran had defective vision and a weak left eye. The July 20, 1976 Medical Examination shows a 20/400 OS (left eye) at enlistment and a left eye lateral squint. As such, the evidence shows that a left eye condition existed prior to service. Congenital or developmental abnormalities are not considered diseases or injuries within the meaning of applicable legislation governing the awards of compensation benefits. 38 C.F.R. § 3.303(c). VA regulations specifically prohibit service connection for congenital or developmental defects unless such defect was subjected to a superimposed disease or injury during service which created an additional disability. See VAOPGCPREC 82-90 (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). History, given by the Veteran, states that he developed decreased vision and exotropia in his left eye following meningitis at around two years old. As such, the Veteran’s amblyopia and exotropia are not congenital diseases. Thus, according to the August 2017 VA addendum opinion, the Veteran’s amblyopia and exotropia are a residual from his pre-service meningitis. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no contrary opinion of record suggesting that the Veteran’s amblyopia and exotropia are congenital diseases. This case turns on the question of whether there is objective evidence of worsening of a pre-existing condition to establish service connection by aggravation. However, the preponderance of the evidence is against finding that the Veteran’s left eye disability permanently worsened due to an in-service injury or event. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The record suggests that the Veteran’s pre-existing left eye exotropia with amblyopia worsened over the course of his service. Left eye vision was noted to be 20/400 in the July 1976 service entrance examination and his left eye vision was noted to be to 20/400 in a June 1979 service discharge examination. The Veteran indicated in an August 1979 statement of medical condition that there had been no change in his medical condition since his last separation examination. The VA examiner acknowledged that while in service the Veteran’s vision decreased from 20/400 in the left eye at enlistment to count fingers at 3 feet in the left eye in March 1979 prior to his first eye muscle surgery. In 1979, the Veteran had eye surgery to improve cosmetics, not vision. The Veteran’s exo-deviation improved to 5 prism diopters from about 30. Approximately one-month after the operation the Veteran noticed a gradual increase in his exo-deviation. No further surgery was advised since he was separating from the service and the change in his exotropia was not stable. Eventually the Veteran’s exotropia stabilized and in 2010 a second procedure was performed to straighten his eyes, with good results. The Veteran’s corrected distance for his right eye was 20/40 and his left eye was 5/200. As the Veteran’s amblyopia and exotropia increased in severity over the course of service, the presumption of aggravation attaches. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. However, the Veteran’s claim for a service connection must be denied because the aggravation of the Veteran’s left eye exotropia with amblyopia was due to the natural progression of the disease and not a service related injury or event. 38 C.F.R. § 3.306. In an August 2017 addendum opinion, the VA examiner opined that the Veteran’s amblyopia and exotropia in his left eye was the natural progression of disuse amblyopia and that this condition has a gradual worsening. The VA examiner opined that the Veteran’s dense amblyopia may make surgical correction difficult and unpredictable and that “[n]atural progression of his condition is what made his condition worse.” It should be noted that a visual field testing was scheduled, but the Veteran left the clinic before it could be done. The VA examiner concluded that there is no evidence that the Veteran’s condition was made worse by being in the service and noted that an additional examination of the Veteran would not have provided any helpful information in his case. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). This opinion is therefore afforded great probative weight. There is no contrary opinion of record. The Board notes the arguments of the Veteran’s representative in its October 2018 Informal Hearing Presentation suggesting that the VA examiner’s opinion was inadequate and did not comply with the Board’s remand directives. Specifically, the representative asserts that the VA examiner’s opinion supports a finding that the Veteran’s left eye condition had been aggravated by service. No specific argument was provided as to how the opinion did not comply with the Board’s remand directives. However, the VA examiner clearly states in the August 2017 addendum opinion that the natural progression of exotropia is that it increases in amount, especially when amblyopia is present. He also clearly states that the natural progression of disuse amblyopia is a gradual worsening and exotropia with the amblyopia will get worse to a point. The VA examiner found that the in-service worsening of the Veteran’s left eye disorder was due to the natural progression of his conditions. In its July 2017 remand, the Board instructed that an addendum opinion be obtained that commented on whether the Veteran’s left eye disability was a congenital defect or a residual of his pre-service meningitis and to provide an etiology opinion. The August 2017 addendum opinion stated that the Veteran developed decreased vision and exotropia in the left eye following meningitis at age two years and provided an etiology opinion. The Board notes that substantial compliance, not strict compliance, with its remand directives is required. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). This argument is therefore without merit. While the Veteran and his representative believes that the Veteran’s amblyopia and exotropia was aggravated by an in-service injury, event, or disease, including the in-service surgery that the Veteran elected to have, neither is competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of the working of the inner eye and its interaction with other organ systems. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the opinions of the Veteran and his representative are nonprobative. The Board acknowledges the assertions of the Veteran and/or his representative and their sincere belief that the Veteran’s left eye disability was aggravated due to his time spent in service. In this regard, the Veteran is competent to report the blurry and red vision that he experienced in and after service, as this is observable through the five senses and his representative is competent to report their observations about the Veteran’s symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). However, a determination as to the appropriate diagnosis of the eye symptoms, and the etiology thereof, is a complex medical determination which goes beyond lay observation of symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet, App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of diagnostic testing such as eye examinations and eye surgeries. In the instant case, there is no suggestion that the Veteran and/or his representative has had any medical training. As such, the question of etiology in this case may not be competently addressed by lay evidence and the opinions of the Veteran are nonprobative evidence. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. The preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for his left eye exotropia with amblyopia. As such, that doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Pierce, Associate Counsel