Citation Nr: 18155695 Decision Date: 12/06/18 Archive Date: 12/04/18 DOCKET NO. 15-16 560 DATE: December 6, 2018 ORDER Service connection for right eye vision loss associated with amblyopia is denied. Service connection for vision loss as a residual to right eye trauma is granted.   FINDINGS OF FACT 1. The Veteran’s amblyopia is a congenital defect that is not a disability for the purposes of entitlement to service connection. 2. The Veteran’s vision loss as a residual to right eye trauma is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for right eye vision loss associated with amblyopia have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.9. 2. The criteria for service connection for vision loss as a residual to right eye trauma have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2005 to February 2009. The case is on appeal from a July 2013 rating decision. In December 2017, the Veteran testified at a Board hearing. At the hearing, the Veteran submitted additional evidence and waived initial RO consideration. See 38 C.F.R. § 20.1304(c). Additionally, in June 2018, the Veteran’s representative submitted additional evidence. Waiver of RO consideration of the additional evidence is presumed given the date of the substantive appeal. See 38 U.S.C. § 7105(e). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Congenital or developmental defects are not “diseases or injuries” within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c); Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). Congenital defects, however, can be subject to superimposed disease or injury and if, during an individual’s military service, superimposed disease or injury does occur, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90 (July 18, 1990). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   Facts and Background The Veteran seeks service connection for right eye vision loss. The Veteran contends that the vision in his right eye worsened after exposure to an improvised explosive device (IED) blast while he was deployed to Iraq. Service treatment records (STRs) show that the Veteran’s August 2005 entrance examination shows he had amblyopia and esotropia diagnoses prior to entering service. The Veteran’s right eye near vision was also noted as 20/200 and his right eye distant vision was noted as 20/50 at entrance. February 2007 STRs indicate that his right eye near vision was noted at 20/70 and his right eye distant vision was noted as 20/80. The Veteran was also noted as having a congenital vision defect in his right eye on the February 2007 Report of Medical Examination. In March 2008, the Veteran was exposed to an IED blast. The Veteran suffered a concussion and was subsequently diagnosed with a TBI. The Veteran states that at the time of the blast, he lost vision in his right eye. As a result, he sought treatment from an ophthalmologist on a military base in Germany. That ophthalmologist referred the Veteran to a doctor off base in Germany. Those records are not a part of the record. After service, the Veteran received a vision evaluation in August 2010. At that time, the Veteran complained of having vision problems related to driving and adjusting to light. His right eye amblyopia was determined to be more likely strabismus related than refractive. In connection with the instant claim, the Veteran underwent a VA examination in March 2015. That examiner diagnosed amblyopia in the Veteran’s right eye. He did not indicate whether the Veteran’s amblyopia is a refractive error of the eye. The examiner determined that vision in the Veteran’s right eye was correctable to 20/40 or better. He concluded that the Veteran’s condition was at least as likely as not secondary to the concussion the Veteran suffered as a result of an IED blast in March 2008. However, the examiner did not provide any statement accounting for the Veteran’s noted history of amblyopia at enlistment or any information regarding how his March 2008 blast exposure may have aggravated his condition. A second VA examination was conducted in April 2015, at which time the examiner continued the amblyopia diagnosis. She did not indicate whether the Veteran’s amblyopia is a refractive error of the eye. The examiner determined that the Veteran’s current vision both with and without correction was 20/200. She noted that at the time of the Veteran’s enlistment into service in 2005, his vision was correctable to 20/40, but that the Veteran reported a worsening of vision in his right eye after the March 2008 blast exposure. The examiner stated that normally amblyopia remains stable, but it appears the Veteran’s vision has worsened. She also reported that there is no other vision or eye condition noted as secondary to the Veteran’s history of blast exposure or TBI. As such, the examiner concluded that she could not state without resorting to speculation as to whether or not the Veteran’s amblyopia, which preexisted service, was permanently aggravated beyond natural progression by his in-service blast exposures. VA treatment record indicates that the Veteran was evaluated by a neuro-ophthalmologist in June 2018. After examining the Veteran and viewing an MRI, the neuro-ophthalmologist stated that the Veteran’s exam and story regarding his IED exposure and injury were consistent with traumatic optic neuropathy. The Board requested an expert medical opinion from the Veterans Health Administration (VHA) on the matter, which was received in October 2018. The opinion was authored by an ophthalmologist at a VA Medical Center. The physician gave the opinion that, per VA definition, the Veteran’s amblyopia is a congenital defect because it is not progressive in nature. The physician also opined that the Veteran’s exposure to an IED blast resulting in a TBI is the reason the Veteran’s right eye vision has worsened. He explained that the Veteran’s vision has worsened, not because the amblyopia is worse, but because the Veteran’s right eye has suffered additional ocular trauma unrelated to his amblyopia. He stated that there are physical and objective signs of optic nerve damage evidenced by the new relative afferent pupillary defect and optic nerve pallor noted on recent eye examinations and damage consistent with blast trauma/injury shown on an MRI. The physician stated that he is very certain of this conclusion and believed that very few ophthalmologists would come to a different conclusion. Analysis 1. Service connection for right vision loss associated with right eye amblyopia. 2. Service connection for vision loss as a residual to right eye trauma. With respect to the first element, the evidence of record establishes that the Veteran has a current disability, i.e., vision loss in his right eye. The April 2015 VA examination showed that the Veteran’s current right eye vision, both with and without correction, was 20/200. However, the evidence of record shows that the Veteran’s right eye vison loss stems from two distinct causes, i.e., amblyopia and ocular trauma. First, an amblyopia diagnosis was provided in the March 2015 and April 2015 VA examinations. In addition, the physician who provided the October 2018 VHA expert opinion determined that the Veteran also suffered vision loss due to ocular trauma to his right eye that is unrelated to and distinct from his amblyopia. Concerning the Veteran’s amblyopia, the physician who provided the October 2018 VHA expert opinion determined, per VA definition, that the Veteran’s amblyopia is a congenital defect because amblyopia and the blurry vision it causes does not progress. The Board finds that the October 2018 VHA expert opinion to be highly probative regarding the issue of whether the Veteran’s vision loss is due a congenital defect because it is authored by an ophthalmologist at a VA Medical Center, a medical professional with expertise in this area of medicine and because it was based on a review of the entire record and a well-reasoned analysis. As a result, the Board finds the competent medical evidence shows that the Veteran’s amblyopia is a congenital defect for which service connection may not be granted. See 38 C.F.R. § 3.303(c), 4.9. Thus, service connection is not warranted for that specific right eye disorder. However, the Board notes that while the Veteran is prohibited from a grant of service connection for the vision loss associated with right eye amblyopia, VA regulations do not prohibit service connection for the vision loss caused by the ocular trauma to the Veteran’s right eye that is distinct from the Veteran’s amblyopia. Thus, the issue of service connection as it concerns the Veteran’s vision loss as a residual to right eye trauma is discussed below. Regarding the second element as it pertains to the Veteran’s vision loss as a residual to right eye trauma, the Veteran competently and credibly testified at the Board hearing about the in-service event he contends caused his vision to worsen in his right eye. See Board Hr’g Tr. The Veteran explained that while deployed to Iraq, an IED exploded 10 to 15 feet away from him. Id. at 3. He testified that the force from the blast threw him into a wall causing him to lose consciousness. Id. He claims when he regained consciousness, he noticed significant vision loss in his right eye. Id. The Veteran reported that after this incident he was med-evac’d and examined by a physician’s assistant but sent back out. Id. In this case, the Board finds that the Veteran is competent and credible to report what he experienced while in the military. Moreover, his testimony is consistent with the circumstances of his service, including combat service, and his service records showing an MOS of “infantryman,” and an award of a Combat Infantryman Badge. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Thus, the occurrence of an in-service injury to the right eye is established. Finally, with regard to the nexus element, the physician who provided the October 2018 VHA expert opinion concluded that the Veteran’s right eye vision loss is related to ocular trauma caused by the Veteran’s exposure to an IED blast. In this case, the Board has afforded the greatest probative weight to the October 2018 VHA expert opinion. The opinion is persuasive as the rationale for the opinion is based upon accurate facts and sound reasoning, and the opinion is consistent with the other evidence of record, including the opinion of the neuro-ophthalmologist, who evaluated the Veteran in June 2018. Moreover, the October 2018 VHA expert opinion is uncontroverted by other evidence of record. Thus, a nexus between the Veteran’s right eye vision loss and an in-service event is established separate from the congenital defect, particularly when reasonable doubt is resolved in the Veteran’s favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As all the elements of the claim are established, service connection is warranted for vision loss as a residual to right eye trauma. What portion of the vision loss is attributable to the now service connected right eye disorder compared to the congenital amblyopia for rating purposes is a downstream issue to be adjudicated by the RO in the first instance when the initial rating is assigned. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Gray