Citation Nr: 1825481 Decision Date: 04/30/18 Archive Date: 05/07/18 DOCKET NO. 14-38 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for residuals of extraocular movement (EOM) surgery. ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel INTRODUCTION The Veteran had active service from August 1987 to July 1990 and from January 1991 to March 1991. He also served in the National Guard from October 1992 to October 1995. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis. Missouri. FINDING OF FACT Resolving all doubt in the Veteran's favor, the Veteran's alternating exotropia/ strabismus and diplopia were aggravated in active service. CONCLUSION OF LAW Residuals of EOM surgery were incurred in service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Recharacterization of Issue For analysis purposes, the Board has recharacterized the claim for entitlement to service connection for bilateral lattice degeneration; alternating extropia and strabismus; diplopia; refractive error (certified to the Board in October 2015), as entitlement to service connection for residuals of EOM surgery. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. The Veteran contends that his pre- service eye disabilities were aggravated by an EOM corrective surgical procedure performed when he was in active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (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)). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA will consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to a determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). However, if service records are presumed to have been lost or destroyed while in government custody, VA's duty to assist is heightened and includes an obligation to search for other forms of records that support the claimant's case. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Moore v. Derwinski, 1 Vet. App. 401 (1991). There is a heightened obligation for VA to explain findings and to carefully consider the benefit-of-the-doubt rule in cases where records are presumed to have been destroyed while in custody of the government. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. 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. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Evidence and Analysis In October 2012, a formal finding was made as the unavailability of the Veteran' service treatment records (STRs) from August 18, 1987 to July 6, 1990, and from January 31, 1991 to March 18, 1991. The finding indicated that all efforts to obtain the STRs had been exhausted, and any further attempts to obtain the STRs would be futile. While the Veteran's STRs from active service have been determined to be unavailable; however, his subsequent treatment records from National Guard service are available. In an October 1992 National Guard enlistment examination, the examiner observed right eye exotropia and that the Veteran's right eye was not able to pinhole. The Veteran wore corrective lenses with visual acuity measured as 20/20. The Veteran had abnormal ocular motility and wore a right eye extropia care lens. The Veteran indicated that he had corrective surgery in December 1989 to remediate abnormal EOM of his right eye. ("[The Army's purpose was to] correct a lazy eye."). The Veteran sought treatment for throbbing left eye pain, blurred vision, and continuous eye watering in August 1994. A clinician noted that the Veteran did report subsequently that the pain had diminished; however, discoloring was still present. There is also a notation, which is not wholly legible, as to resolving "trauma to left eye" on the same page of the Veteran's chronological record of medical care. In an April 2010 VA initial primary care evaluation, a clinician noted positive right eye strabismus that was stable. In January 2011, the Veteran submitted a statement. In pertinent part, he wrote that he had had surgery performed while in service on his eye to correct its "drifting." He added that his vision subsequent to this surgery has been deteriorating incrementally. In September 2012, the Veteran was afforded a VA ophthalmology consultation. The VA chief of ophthalmology noted that the Veteran presented for intermittent diplopia/visual confusion, adding that the Veteran was experiencing eye drifting again. He opined that there had been an EOM surgical procedure performed on the right eye during the Veteran's childhood and another EOM surgical procedure performed on the right eye in 1989. Moreover, this chief physician reported that testing revealed uncertainty as to whether the Veteran was capable of true visual fusion. Lastly, according to the chief physician, the Veteran's 1989 military EOM operative reports would be useful for additional corrective surgical planning. The Veteran underwent an eye examination and a VA optometrist filed two reports. In a report dated April 1, 2013, the optometrist noted the following: The Strabismus was congenital. He had surgery as a child to correct the strabismus. It is very common for strabismus to be present after the surgery. While in the military, he had strabismus surgery. Again the strabismus occurred after the surgery. In a more detailed examination report dated April 5, 2013, the optometrist wrote that the Veteran had deep suppression of the right gaze revealed through binocular field testing. The clinician was skeptical as to this finding, noting that he was unable to locate the December 1989 EOM right eye surgery notes. Furthermore, the clinician opined that this EOM surgery-while in the military-would warrant considering the Veteran's present diagnosis of diplopia to be related to the exotropia and strabismus related to military service. The optometrist then made the following findings of four current deficits. 1. Lattice degeneration. The examiner found that it is a developmental disorder not related to military service. 2. Refractive error. The examiner also found this to be developmental and not related to military service. 3. Alternating exotropia and strabismus. The examiner found this to be a congenital disorder but that it was treated by surgery in service. Without access to the records of treatment, the examiner was not able to assess whether the disorder was aggravated by any aspect of service including the surgery. 4. Diplopia. The examiner did find that this deficit was related to the exotropia and strabismus. In his August 2013 notice of disagreement (NOD), the Veteran stated that he the procedure to correct abnormal EOM of his right eye failed and thereby aggravated his preexisting right eye condition. The Board finds that the Veteran likely did undergo EOM surgery in service. That military medical care providers decided to execute the surgical procedure does suggest that the disorder may have been become more severe than when the Veteran entered service two years earlier. The Board finds the Veteran's statements to be consistent, credible, and accepted by examiners and clinicians as consistent with his current vision status. At issue is whether any of the currently observed vison deficits were caused or aggravated by military service including the surgical procedure to correct congenital strabismus or whether the surgical procedure was simply unsuccessful with no change in the level of dysfunction. Placing probative weight on the reports of the eye consultation and examination and applying the heightened duty to apply the benefit-of-the-doubt rule, the Board finds that service connection for lattice degeneration and refractive error is not warranted because the examiners specifically excluded these deficits as strictly developmental. Even though the examiners could not be entirely confident without review of the in-service surgical reports that could not be recovered, the Board finds that there is at least an equal balance of competent, credible, and probative evidence for and against the aggravation of the Veteran's alternating exotropia/strabismus and diplopia in service. ORDER Service connection for alternating exotropia/strabismus and diplopia is granted. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs