Citation Nr: 1808688 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-36 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for an eye disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1982 to March 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction subsequently transferred to the Chicago, Illinois RO. This case has been remanded by the Board to the Agency of Original Jurisdiction (AOJ) for further development in March 2012, December 2012, May 2013, October 2013, February 2014, January 2015, April 2016, and July 2017. The case has been properly returned to the Board for appellate consideration. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. LCM contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. FINDINGS OF FACT 1. Pre-existing exotropia was not aggravated during service. 2. An eye disorder other than exotropia did not have onset in service and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for exotropia have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131 1153, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.306 (2017). 2. The criteria for service connection for an eye disorder other than exotropia have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board also finds that there has been compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Regarding Board remands dated in in February 2014, January 2015, April 2016, and July 2017, employee health clinic (also known as occupational health records) dating from 1985 through 2017 were finally obtained after the most recent remand. Further, numerous VA examinations and opinions have been obtained in collective compliance with the previous remand directives. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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) (2017). The Veteran has various eye diagnoses pertinent to the instant claim of entitlement to service connection. One diagnosed disorder, exotropia, preexisted service. The Veteran's enlistment physical examination of February 1982 detailed that he had exotropia of the left eye. The eye disorder was also listed as alternating exotropia. The condition was also noted on his Report of Medical History that was dated in February 1982. Thus, the exotropia is a preexisting condition. Cases, like this one, in which the condition is noted on entrance, are governed by 38 U.S.C. § 1153 (as opposed to those laws applicable under 38 U.S.C. § 1111 where the complained of condition was not noted on entrance into service). This statute provides that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 2012); 38 C.F.R. § 3.306 (2017). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306 (a) (2017). Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306 -07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). As exotropia of the left eye was noted on the Veteran's entrance into active service, the presumption of soundness does not apply. Therefore, for exotropia of the left eye, the issue before the Board is whether there was an increase in disability during service; if so, the pre-existing disability will be considered to have been aggravated by military service unless there is a specific finding that the increase in disability is due to the natural progress of the disease and this specific finding is supported by clear and unmistakable evidence. See 38 U.S.C.A. § 1153 (West 2012); 38 C.F.R. § 3.306 (a) (2017). For all remaining eye disorders diagnosed during the pendency of this appeal, service connection on a direct basis will be considered. Essentially, the Veteran is claiming that he has left periorbital pain that is a residual from his eye surgery in service. The Board will discuss the factual history chronologically. Factual History Service treatment records show that the Veteran was seen for complaints of blurred vision in January 1983. A request for an ophthalmology consultation shows the Veteran had lateral deviation of both eyes. The assessment was exotropia. The Veteran underwent bilateral lateral recti recessions with a diagnosis of attenuating exotropia in March 1983. A post-operative evaluation in March 1983 shows that the Veteran was status post bilateral lateral recti recession with good results. In April 1983, the Veteran was noted to have a suture granuloma in the left eye. Again, the Veteran was seen in May 1983 with a complaint of a granuloma in the left eye for approximately two weeks. The entry noted the granuloma was painful and that the eye watered constantly. The Veteran was referred to the ophthalmology clinic. The clinic entry noted that the Veteran had made a parachute jump about a week earlier and had gotten sand in his eye. The Veteran's visual acuity was reported as 20/15 in the right eye and 20/25 in the left eye with correction. The entry indicated that a suture granuloma was removed from the left eye. The Veteran was seen again in the ophthalmology clinic in November 1983. His corrected visual acuity was noted as 20/20 in both eyes. The prior removal of a surgical granuloma was noted. The Veteran was said to have a recurrence of the granuloma and was experiencing a dull aching pain in the area. The assessment was conjunctival granuloma. The Veteran returned to the clinic the next day for removal of the granuloma. The entry noted the Veteran was to return to the clinic as needed. A final ophthalmology clinic note was dated in January 1985. The Veteran's visual acuity was recorded as 20/20 in the right eye and 20/40-1 in the left eye. The Veteran's history of surgery was noted. He reported periorbital pain in the left eye and a decrease in the visual acuity of the left eye in recent weeks. The assessment was intermittent left exotropia. He was also noted to have an incorrect prescription for his glasses and was referred for new lenses. The Veteran's uncorrected visual acuity was recorded as 20/400 for both eyes for distant vision at the time of his separation physical examination in January 1985. His corrected vision was 20/20 for both eyes. The Board notes that the report was dated prior to the Veteran's last ophthalmology clinic visit. The Veteran was afforded a VA eye examination in June 2007. The Veteran was noted to complain of occasional periorbital ache on the left side and burning of the left eye. The examiner said the Veteran reported his vision as good and that he denied any double vision or visual field cuts. The examiner noted the Veteran's history of muscle surgery in service. The Veteran denied having any additional surgery or trauma or a past history of amblyopia. The examiner said the Veteran had corrected distance visual acuity of 20/20 in the right eye and 20/15 in the left eye. He also had corrected near vision acuity of 20/25 in the right eye and 20/30 in the left eye. The examiner said there was no papillary deficit and the eyes were straight with a -1 abduction deficit in both eyes. The visual fields were said to be full to confrontation. On slit lamp examination the eye lids and lashes showed meibomian gland dysfunction in both eyes. The sclera and conjunctiva were white and quiet but did show areas of mild conjunctival scarring temporally in both eyes. The corneas were said to be clear. The irises were round and regular in both eyes. The lenses were reported as clear. The assessment was history of childhood exotropia status post muscle surgery. The examiner said the Veteran currently denied any double vision or trouble with depth perception. She explained that she would relate the Veteran's complaint of periorbital ache to a headache variant rather than any consequences of the eye muscle surgery as it was only unilateral, and the Veteran underwent bilateral eye muscle surgery. She also opined that the burning described by the Veteran would relate more to dry eye syndrome and meibomian gland dysfunction in both eyes. In his November 2007 NOD, the Veteran took issue with the eye examiner's assessment that his periorbital eye pain was a headache variant. He indicated he never had the problem with the pain before his eyes were operated on in service. In a statement submitted with his August 2009 VA Form 9, the Veteran indicated that he had suffered from constant left eye socket pain as a result of his in-service eye surgery. Outside treatment providers had reportedly informed him that the left eye socket pain was a result of built up scar tissue from his prior surgery. In the March 2012 remand, the Board noted that it does not appear that the June 2007 VA examiner reviewed the Veteran's STRs as she did not comment on his two procedures to remove a granuloma of the left eye and whether such surgeries could be related to his claimed pain. Further, the Board noted that the examiner did not comment on the January 1985 ophthalmology clinic note where the Veteran reported the very same symptoms he presented with at the time of his VA examination. As the Veteran's exotropia is a preexisting condition, the Board found that a new examination was required to address whether there was an aggravation of the condition during service beyond normal progression. Also, the Board found that the examination must address whether there is any current disability that may be related to the surgical intervention required in service. The June 2007 VA examiner had noted a meibomian gland dysfunction without further comment. A VA examination was performed in April 2012. In that examination, the examiner stated that the Veteran's eye condition was not aggravated during service because in-service surgery for exotropia was "successful" and the Veteran went on to be a paratrooper. As noted in the December 2012 Board remand, the April 2012 VA examination was not responsive to the March 2012 remand directives. Essentially, the April 2012 VA examination did not address whether any other diagnosed eye problem, which the Board noted included at least dry eye syndrome and conjunctival scarring, was related to military service, and whether the Veteran's meibomian gland dysfunction previously diagnosed in Jun 2007, even if such had resolved currently, was related to service. VA provided another examination in March 2013. At that time, three diagnoses were provided: 1) childhood exotropia, bilateral; 2) intermittent left lateral orbit rim pain; and 3) dry eyes with meibomian gland dysfunction. The examiner explained that the Veteran had a history of bilateral intermittent exotropia, having undergone bilateral lateral recession surgery with a successful outcome during service. The eyes had remained aligned without any symptomatic double vision or depth perception problems for 30 years. The Veteran wore contact lenses daily in his job with police. He denied using any eye drops. He complained of intermittent pain along the left lateral orbital rim and occasional twitching of the left lower eyelid. After a review of the record and conducting a thorough clinical examination, the examiner found no residuals of exotropia. Thus, the examiner opined that exotropia was not permanently worsened beyond the normal progression by military service. The examiner also found no post-surgical granulomas on examination. There was no cosmetic scarring on the conjunctiva from prior muscle surgery. Further, the examiner found that the Veteran's dysfunction of the meibomian glands and tear film insufficiency was not caused by or a result of military service. Explaining, the examiner noted that meibomian gland dysfunction was a common eye condition, and the Veteran's symptoms were likely worsened by his regular contact lens use for long periods. As such, the Veteran's Meibomian gland dysfunction was not caused by or a result of the in-service muscle surgery performed three decades earlier. Moving to the Veteran's claimed left ocular rim pain, the examiner found that this symptom was not caused by or the result of the Veteran's exotropia or the ocular surgery in service to correct it. Rather, the examiner opined that the Veteran's symptoms were most likely caused by or a result of his regular contact lens use and underlying tear film insufficiency. Again in May 2013, the Board found that the VA opinion obtained on remand was inadequate. Specifically, the Board noted that the examiner's March 2013 VA opinion appeared to link the Veteran's various left eye problems, with the exception of the tear film insufficiency, to contact lens use, not military service. The Board noted that it still remained unclear whether diagnosed tear film insufficiency was somehow traceable to the Veteran's period of military service, to include potential post-surgical residuals following the correction of the Veteran's exotropia. Further, the Board also asked for an opinion as to whether the conjunctival scarring noted in the record was related to the Veteran's surgery in service, whether the scarring was visible to others, and whether it represented any impairment. The March 2013 examiner answered that there was no cosmetic scarring on the conjunctiva from prior muscle surgery. The Board found this answer to be inadequate, noting that it had been previously identified that there was mild conjunctival scarring noted in the record. The examiner had been asked specifically whether such scarring was visible and represented any impairment. The examiner found no scarring, but provided no discussion regarding the discrepancy between his finding of no scarring and previous notations of conjunctival scarring in the claims file. Thus, the Board remanded the claim for further development behind the discrepant findings regarding conjunctival scarring and the Veterans' tear film insufficiency. The examiner who conducted the March 2013 VA examination provided an addendum opinion in May 2013. The examiner restated the Veteran's medical history, noting that the Veteran's eyes had remained aligned without any symptomatic double vision or depth perception problems for 30 years after his in-service bilateral lateral recession surgery for his intermittent exotropia. The Veteran wore contact lenses daily, and he had denied using eye drops. The examiner further noted the Veteran's complaints of intermittent pain along the left lateral orbital rim and occasional twitching of the left lower eyelids. After again reviewing the Veteran's medical records, the examiner provided the following opinions: 1) it was less likely than not that a tear film insufficiency of the eye was traceable to the Veteran's period of military service because the Veteran's service was nearly three decades ago, he had mild meibomian gland inspissation, and because his tear film insufficiency was quite common; 2) the Veteran's orbital rim pain was a very subjective complaint with no objective findings, and it was less likely as not that the pain was due to the Veteran's eye muscle surgery three decades ago because the Veteran had no obvious scarring or anatomical distortions at the site of the surgery; and 3) that there was no conjunctival scarring and thus no ocular impairment due to conjunctival scarring. The examiner explained that the Veteran's tear film insufficiency was most likely caused by his regular every day contact use and he opined that the Veteran's symptoms of tear film insufficiency would resolve if the Veteran discontinued contact lens use. The examiner further opined that the Veteran's orbital rim pain was most likely caused by or a result of his tear film insufficiency and contact lens use. Regarding conjunctival scarring and the discrepant findings of record on conjunctival scarring, the examiner explained that he did not see any evidence of conjunctival granulomas or visible conjunctival scarring during his examination. Some mild conjunctive scarring had been noted in the past, and it was possible that the Veteran had some post-surgical changes at that time. However, the examiner had examined the Veteran's conjunctiva closely with the slit lamp biomicroscope, and he did not see any granulomas or fibrous tissue that would be indicative of scarring. Moreover, to the naked eye, the Veteran's conjunctiva appeared healthy and showed no evidence of the surgery from three decades ago. In a March 2015 opinion, a VA examiner opined that the Veteran's pre-existing exotropia was not aggravated by service. The examiner explained that exotropia was an eye muscle disorder that causes exotropia and diplopia. The Veteran entered the military service with that muscle disorder and he was treated by surgery during service. In the August 2016 Board remand, the Board found that the March 2015 VA examiner did not consider the Veteran's post-surgical left eye complaints in service, including the removal of granulomas, and the worsening of the Veteran's uncorrected near vision at separation in his opinion that the exotropia was not aggravated by service. In a July 2016 addendum, a VA examiner cited to her review of the conflicting medical evidence, explaining that the Veteran had a diagnosis of exotropia since childhood and underwent surgery while in service in March 1983 to correct his condition. Post-surgery, he developed a suture granuloma in the left eye on two occasions in April and November 1983, requiring removal on both occasions. The Veteran was later seen in January 1985 with left periorbital pain and a decrease in visual acuity. At that time, there was no suture granuloma noted and the conjunctiva was healing appropriately. The Veteran's vision was 20/40 with -7 lenses, but was corrected to 20/20 with a refraction of -4.25 - 1.00 x 170. Based on this, there was no cause found for the left periorbital pain, and the Veteran's vision was 20/20 with proper correction. The VA examiner opined that there was no evidence that the Veteran's pre-existing condition of left eye exotropia increased in severity during service. In fact, noted the examiner, his condition improved due to his in-service corrective surgery. The examiner noted that the Veteran did suffer two suture granulomas in the left eye following surgery. However, the granulomas were benign, and the examiner noted that such granulomas could arise following muscle surgery. The granulomas were temporary and resolved during service, opined the examiner. In addition, the suture granulomas did not have any effect on the Veteran's exotropia, explained the examiner. In a September 2017 opinion, a VA examiner opined that the Veteran's exotropia in the left eye, which existed prior to service, was not aggravated beyond its natural progression by an in-service event. The examiner explained that the Veteran's eye misalignment was unrelated to problems of suture granulomas in May and November 1983 and periorbital pain and decrease in visual acuity in the left eye in January 1985. The examiner explained that there was no evidence of an increase in severity of exotropia in service. The natural progression of exotropia is to worsen over time. However, the misalignment was corrected with eye muscle surgery. This did not affect visual acuity measured in January 1985 as 20/400. The examiner noted, in fact, that the Veteran had an eye examination showing 20/15 visual acuity at distance in 2007. The Veteran's examination did not show any conjunctival suture granulomas, and periorbital granulomas were not affected by eye muscle surgery or exotropia. The Board has reviewed the entire record, to include VA treatment records obtained pursuant to the various Board remands. These do not provide any more insight into the Veteran's eye disorders than the VA examinations of record. Significantly, there is no other source of nexus evidence than the VA treatment records and the Veteran's own statements. Analysis Initially, the Board notes that the Veteran has received the following diagnoses during the appeal period: 1) exotropia; 2) tear film insufficiency, to include meibomian gland disorder; 3) conflicting findings as to whether there is conjunctival scarring; 4) left eye orbital rim pain. Thus, the present disability element of service connection is met for these conditions. However, for the following reasons, the Board finds that service connection is not warranted for any claimed eye disorder. First, the Board finds that pre-existing exotropia was not aggravated beyond the natural progression of the disorder during service. Simply put, the evidence suggests that exotropia was improved during service by the corrective surgery performed in March 1983. The VA examiners throughout the appeal unanimously concluded that the pre-existing exotropia was not aggravated during service. In the most recent VA opinion in September 2017, the examiner explained that there was no evidence of an increase in severity of exotropia in service. The examiner indicated that the natural progression of exotropia is to worsen over time. However, the pre-existing misalignment was corrected with the March 1983 surgery. The examination in March 2013 yielded no evidence of current exotropia. The May 2015 examination and July 2016 addendum showed the examiner's opinion that the Veteran's exotropia actually improved during service. The Board accords these opinions significant probative value because they are premised on a review of the in-service treatment records, post-service records, and a thorough examination of the Veteran. Further, these opinions are collectively supported by adequate rationale. See Nieves- Rodriguez v. Peake, 22 Vet. App 295, 304 2008) (noting that it is the "factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). These opinions support a finding that the Veteran's pre-existing exotropia did not worsen beyond its natural progression during service. Therefore, service connection is not warranted for exotropia. Second, the Board moves to other diagnosed eye conditions. After a thorough review of the record, the Board finds that service connection is not warranted for any other diagnosed eye disorder, to include scarring of the conjunctiva, left eye orbital rim pain, or tear film insufficiency, to include a meibomian gland disorder. The examiner who provided the March 2013 VA examination and May 2013 opinion found that the Veteran's tear film insufficiency, meibomian gland inspissation, was not traceable to his military service. The examiner explained that the tear film insufficiency was most likely caused by regular use of contact lenses. Further, the examiner surmised that the tear film insufficiency would resolve if the Veteran discontinued use of contact lenses. The examiner further found no scarring of the conjunctiva at the March 2013 VA examination. When asked to elaborate in the May 2013 opinion, the examiner explained that he had examined the Veteran's conjunctiva closely with the slit lamp biomicroscope, and he did not see any granulomas or fibrous tissue that would be indicative of scarring. Moreover, to the naked eye, the Veteran's conjunctiva had appeared healthy and showed no evidence of the surgery from three decades ago. The examiner acknowledged that there could be post-surgical changes in the conjunctiva, seemingly reconciling his findings with the discrepant findings of the June 2007 VA examination. However, the examiner reiterated that there was no residual scarring found in his recent examinations, despite clinical testing being conducted. In any event, presupposing that there is scarring, which was found in the June 2007 VA examination, no ocular disability has been found to arise from such scarring, and there is nothing of record to connect it to service. Further, the July 2016 addendum opinion noted that the Veteran's in-service suture granulomas were benign and had resolved. Finally, regarding orbital rim pain, the VA examiner in May 2013 opined that the orbital rim pain less likely as not due to his service. Rather, the pain was more likely caused by or a result of diagnosed tear film insufficiency and contact lens use. As described above, the VA examiners opined that tear film insufficiency was likely a result of the Veteran's contact lens use, not service. All these opinions support a finding that an eye disorder other than exotropia did not have onset in service and is not otherwise etiologically related to service, to include the Veteran's March 1983 corrective surgery for exotropia and subsequent procedures to remove suture granuloma in May and November 1983. The examinations collectively provide ample rationale to support this conclusion, as each examiner has variously provided supporting discussion. See Nieves- Rodriguez v. Peake, supra. The VA examinations are the most probative evidence of record regarding the Veteran's claims. They all support findings that pre-existing exotropia was not aggravated by service and that other diagnosed eye disorders are not etiologically related to service. The Board accepts these sources of evidence and finds against the Veteran's claim. In doing so, the Board is cognizant of the Veteran's claims that his eye disorders, to include left eye orbital rim pain, are related to his service, to include his in-service corrective eye surgery. To the extent the Veteran is linking these conditions to his military service, his contentions are not competent lay evidence. Although it is error to categorically reject a lay person as competent to provide a diagnosis, not all such questions are subject to non-expert opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a medical opinion depends on the facts of the particular case. "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). But here, establishing a nexus between the Veteran's military service and these eye disorders, which are internal medical processes not capable of lay observation, is clearly distinguishable from identifying ringing in the ears, a broken leg, or varicose veins. See Jandreau, 492 F.3d at 1377; Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). Regardless, the Veteran's assertions are outweighed by the medical evidence of record, which is more probative as it is based upon medical expertise. Therefore, the Board finds that service connection for an eye disorder, to include exotropia, conjunctival scarring, left eye orbital rim pain, and tear film insufficiency, to include meibomian gland disorder, is not warranted on any theory of entitlement. There is no reasonable doubt to be resolved in this matter. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an eye disorder is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs