Citation Nr: 1809232 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 10-18 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a bilateral eye disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1976 to March 1979 and November 1979 to May 29, 1989. The Veteran received an "other than honorable" discharge for his period of duty from May 30, 1989 to September 28, 1990. As such, the Veteran is not eligible for VA benefits related to this period. See September 2005 administrative decision. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in front of the undersigned in July 2012. A transcript of the hearing is of record. In February 2013 and August 2016, the Board remanded the claim to the AOJ for further development. The matter has since returned. FINDING OF FACT The Veteran's refractive errors, including presbyopia, hyperopia and astigmatism are not VA compensable disabilities; the weight of the evidence is against a finding that the Veteran has any compensable eye disability, to include cataracts and Bell's palsy, superimposed on his refractive error during service or is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for an eye disability have not been met. 38 U.S.C. §§ 1101, 1131 (2012); 38 C.F.R. §§ 3.303, 4.9 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duty to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran and his representative have not 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 duty to assist argument). Service connection The Veteran asserts service connection for a bilateral eye condition due to his military duties conducted on a submarine. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran primarily reports that eye problems such as vision loss and light sensitivity onset near the end of his service, in approximately 1988 and have continued. His eyes were negatively impacted and strained by constant stress, excessive amounts of paperwork, poor lighting, rapid light change and constant pressure changes. Alternatively, he reports his eye problems are due to an injury incurred in 1970 or 1980 from a car battery explosion to his face which resulted in a small burn, including in one of his eyes. See e.g., Veteran's correspondence dated December 28, 2005 and July 2012 Board hearing transcript. The Veteran has a current diagnosis of bilateral presbyopia with associated hyperopia and astigmatism, cataracts and resolved Bell's palsy of the left eye. See December 2017 VA examination. On review of the lay and medical evidence of record, the Board finds that the weight of the competent evidence fails to support the claim of service connection for a bilateral eye disability. Initially, the Board notes that the Veteran's presbyopia, hyperopia and astigmatism are considered refractive errors. See VBA Manual M21-1, IV.ii.2.B.6.c. (last accessed February 1, 2018). Refractive errors of the eyes are congenital or developmental defects and not disease or injury for VA compensation purposes. See 38 C.F.R. §§ 3.303 (c), 4.9. Service connection is only possible in such cases when there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). In other words, absent a superimposed disease or injury, service connection may not be granted for refractive error of the eyes, including hyperopia, astigmatism, and presbyopia, even if visual acuity decreased in service. Service records reflect a diagnosis and treatment of refractive error of the eyes, corrected by glasses. The Veteran's vision was normal upon entry into service and reduced visual acuity was noted in a March 1987 VA examination and a March 1989 ophthalmology record. In a September 1988 ophthalmology record, the Veteran reported increased submarine work, that he was slower to adjust to the submarine lights and that he injured his eye from a battery 5 years prior. The Veteran was diagnosed with refractive error, equal to his age with no apparent pathology. The Veteran's vision was corrected to normal by glasses. Notably, on exit in September 1990, the Veteran had normal corrected vision and denied any eye trouble. Although service records reflect treatment of refractive error, no additional eye disability is shown. In this regard, the Board observes that prior to any notation of reduced visual acuity, bilateral Mittendorf dots were seen on eye lens evaluations, but no chronic eye disability was diagnosed and medical professionals clearly indicated that the condition was not considered disabling. See February 1979 VA examiner and May 1982 optometry record. The Veteran's initial VA eye examination in May 2013 with a July 2013 addendum reflects a diagnosis of presbyopia, deemed unrelated to service. The Veteran reported a sudden onset of difficulty with near vision in approximately 1993, approximately four years post-service. The examiner diagnosed the Veteran with typical, if slightly premature, onset of typical presbyopic symptoms that were age-related in 1993 at the age of age 37. Presbyopia commonly onset at age 38-40 and is a natural occurrence in 100 percent of all people. The first post-service indication of any eye disability other than refractive error is in VA records from 2014, approximately 25 years after separation from his honorable periods of service. In September 2014, the Veteran was diagnosed with cataracts and ball's palsy of the left eye. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Veteran was afforded a November 2017 VA examination, with three attached nexus opinions. The Veteran's cataracts, hyperopia, astigmatism, presbyopia, history of left eye Bell's palsy (resolved) were less likely than not related to service. Further, the Veteran's bilateral cataracts and history of left Bell's palsy, diagnosed in September 2014, were not caused or aggravated by any in-service activity, poor lighting, stress, exposure or injury. In providing the above opinions, the examiner noted the Veteran's contentions and summarized pertinent service records regarding visual acuity. The Veteran's current refractive status was right eye emmetropia (previously hyperopic) and left eye hyperopia and astigmatism. All conditions are considered congenital defects. The examiner indicated that presbyopia was superimposed on the Veteran's congenital refraction error of myopia, as his presbyopia onset earlier than average, in his 30s (diagnosis date of 1993). However, presbyopia is a universal, age-related decrease in accommodation that occurs in everyone, regardless of refractive error and the condition was not from any particular activity, stress, exposure or injury in-service. The Board finds the November 2017 VA opinion represents competent evidence which weighs against a finding that the Veteran incurred any compensable additional eye disability superimposed upon his refractive error during service, or that any compensable eye disability is otherwise etiologically related to service. There is no contrary medical opinion of record. Of note, one of the attached nexus opinions in November 2017 appears to contain an error as the examiner checked a box which, in part, indicates that cataracts and Bell's palsy pre-existed service. However, when viewed in context of the entire report and the examiner's associated remarks, the Board finds that the examiner did not intend to make such a finding. See November 2017 examination report (onset date), November 2017 medical opinion (restatement of requested opinion, rationale). Thus, the opinion remains otherwise competent and no discussion regarding whether the conditions pre-existed service is required. The Board has considered the lay statements of the Veteran asserting his eye disability is related to his period of service. The Board notes that although lay persons are competent to provide opinions on some medical issues, as to the specific issues in this case, a relationship between an eye condition and service is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d at 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer), see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The weight of the evidence shows that the Veteran did not have a superimposed disease or injury on his refractive error during service and he does not have a compensable eye disability that is otherwise related to service. Accordingly, the preponderance of the evidence is against service connection for bilateral eye disability. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a bilateral eye disability is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs