Citation Nr: 20002160 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 16-46 062 DATE: January 9, 2020 REMANDED Entitlement to service connection for a bilateral eye disability, to include double vision, strabismus, and cataracts of the right eye is remanded. Entitlement to service connection for breast cancer is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1971 to August 1973. In September 2019, the Veteran was notified that a hearing was scheduled for November 2019. The Veteran did not report to her hearing or contact the VA about the scheduled hearing. When an appellant elects not to appear at the prescheduled hearing date, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). Therefore, the appeal will be adjudicated without further delay based upon the evidence currently of record. 1. Entitlement to service connection for a bilateral eye disability, to include double vision, strabismus, and cataracts of the right eye is remanded. The Veteran seeks entitlement to service connection for a bilateral eye disability. The Veteran asserts that her occupation in service as a photographer and lack of protective gear worn, exposed her to toxic chemicals that have caused her eye condition. Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Congenital or developmental defects are not diseases or injuries within the meaning of the applicable law and regulations for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. However, service connection may be granted, in limited circumstances, for disability due to aggravation of a constitutional or developmental abnormality by superimposed disease or injury. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15(1993). The Veteran has not received an examination regarding her claim for an eye disability. Her VA clinic records and private treatment records indicate that she has diagnoses of double vision, strabismus, and cataracts of the right eye. The Veteran has also submitted an article linking vision problems to photography development fumes. Lastly, the July 2016 statement of the case denied the Veteran’s claim on the grounds that her eye condition is a refractive error, which is considered a congenital or developmental defect. The medical evidence does not support this blanket determination. As there has been no examination for this condition, a remand is warranted to provide an opinion regarding the nature and etiology of the Veteran’s bilateral eye disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for breast cancer is remanded. Similarly, the Veteran has not been afforded a VA examination regarding her claim for breast cancer. The Veteran was diagnosed with breast cancer in April 2006. She contends that the photography development chemicals she was exposed to while in service caused her breast cancer and has submitted an article linking the two. Given the following, a remand is warranted to provide an opinion to determine the nature and etiology of Veteran's breast cancer. The matters are REMANDED for the following action: 1. Obtain all available private and VA treatment records and associate them with the claims file. This should include treatment records pertaining to the Veteran’s eye surgeries. Additionally, ask the Veteran to identify the dates and location of her eye surgeries, as there is conflicting information according to her treatment records. (March/June 2006 VA treatment records states she had three eye surgeries as an adult, whereas September 2008 records states “2 strab surgeries as child” and one as an adult.) 2. Thereafter, schedule the Veteran for an examination to determine the nature and etiology of any diagnosed eye disorder(s). For each diagnosis identified, the examiner should indicate whether or not the disorder is a congenital defect or disease. To assist the examiner, for VA adjudication purposes, “disease” generally refers to a condition considered capable of improving or deteriorating, whereas “defect” generally refers to a condition not considered capable of improving or deteriorating. (As an example, sickle cell anemia is considered a congenital “disease” for VA purposes, whereas refractive error is considered a congenital “defect.”) The examiner must opine to the following: (a) For each current eye disorder that is a congenital defect, the examiner should state whether there is any evidence of superimposed disease or injury during the Veteran's active duty service. (b) For each current eye disorder that is a congenital disease or not a congenital defect, the examiner should state whether the disorder clearly and unmistakably preexisted the Veteran’s active duty service. If so, the examiner should state whether there was an increase in the severity of the disorder during the Veteran's active duty service. If the evidence reflects an increase, the examiner should indicate whether the increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. (c) If the examiner determines that the eye disorder(s) is not a congenital defect or disease, he or she should state whether it is at least as likely as not (50 percent or greater probability) that the disorder(s) manifested in or is otherwise related to active duty service. The examiner is requested to discuss whether there is any medical reason to accept or reject the Veteran’s belief that her double vision is related to her occupation in service, including whether the exposure of chemicals during photography development and lack of protective gear worn, would result in any current abnormalities of the eyes. In doing so, the examiner should consider the following: • May 1970 entrance examination, finding a normal clinical evaluation of the eyes and no notations regarding defects and diagnoses; • May 1970 report of medical history, marking “yes” to wearing glasses or contact lenses; • Separation examination, finding a normal clinical evaluation of the eyes; • May 1972 military personnel records, detailing her duties as a photographer from November 1971 to March 1972; • August 1990 private medical opinion, discussing the Veteran’s double vision/blurring and the symptoms relating to a possible diagnosis of multiple sclerosis; • April 1992 VA clinic record, reporting “vague loss of visual acuity;” • 2006 VA clinic records detailing the Veteran’s eye surgeries; • April 2007 VA clinic record, diagnosing the Veteran with cataract of the right eye; • September 2008 VA clinic record, diagnosing the Veteran with presbyopia; • November 2008 VA clinic record, reporting eye strain when reading for a long time; • June 2012 VA clinic record, stating “double vision due to film developing chemicals;” • October 2013 lay statement from the Veteran; • June 2016 VA clinic record, reporting complaints of double vision; and • June 2012 private treatment record, noting exposure to certain chemicals as a result of working in a photo lab for years. 3. Further, schedule the Veteran for an examination to determine the nature and etiology of her breast cancer. The examiner must opine as to whether it is at least as likely as not that her breast cancer manifested in or is otherwise related to active duty service. The examiner is requested to discuss whether there is any medical reason to accept or reject the Veteran’s belief that the exposure of chemicals during photography development and lack of protective gear worn while in service, resulted in her diagnosis of breast cancer. In doing so, the examiner should consider the following: • May 1972 military personnel records, detailing her duties as a photographer from November 1971 to March 1972; • January 2005, reporting complaint of aches in her left breast; • April 2006 VA clinic record, diagnosing the Veteran with breast cancer and left breast mastectomy was performed; • August 2006 VA clinic record, noting the Veteran is in remission; • January 2010 article, linking exposure of chemicals during the development of photography to breast cancer; and • June 2012 private treatment record, noting exposure to certain chemicals as a result of working in a photo lab for years. The examiner must provide all findings, along with a complete rationale for his or her opinions in the examination reports. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran with a supplemental statement of the case and allow an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adeleke, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.