Citation Nr: 21071900 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 14-19 759 DATE: December 1, 2021 ISSUE Entitlement to service connection for a bilateral eye disability. ORDER Entitlement to service connection for a bilateral eye disability is denied. FINDING OF FACT The preponderance of competent and credible evidence weighs against a finding that an additional eye disability resulted due to aggravation during service of the Veteran's refractive error of the eyes (congenital disease) by a superimposed disease or injury. CONCLUSION OF LAW The criteria for service connection for a bilateral eye disability have not been met. 38 U.S.C. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1999 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran and S. K. testified at a travel Board hearing at the RO before the undersigned Veterans Law Judge (VLJ) in October 2017. A transcript of the hearing is associated with the Veteran's electronic claims file. When this case was previously before the Board in June 2021, it was remanded for additional evidentiary development. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The case has since been returned to the Board for further appellate action. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). Legal Criteria The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board notes that the Veteran's claimed eye disabilities are not chronic diseases listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Analysis The Veteran asserts that he has a current eye disability as a result of his service. Specifically, at the October 2017 travel Board hearing, the Veteran testified that he had an eye injury in service, which included metal debris in his eye. He stated that he went to the base hospital, and they removed the metal debris. However, the Veteran states that, "[s]hortly after that my eye wouldn't focus quite right and I would say within a year I was wearing glasses." The Veteran asserts that he had excellent vision during his childhood and prior to entering the service, and that his right eye is worse than his left as a result of his in-service injury. Service treatment records indicate treatment of his eye in April 2000, June 2002, and July 2003. VA treatment records report current vision acuity. The Veteran was afforded a VA general examination in April 2006, which noted decreased visual acuity. Generally, a congenital disease or defect is not service connectable as a matter of express VA regulation. See 38 C.F.R. §§ 3.303 (c), 4.9. The only possible exception is if there is evidence of additional disability due to aggravation during service of the congenital disease, but not defect, by superimposed disease or injury. See VAOPGCPREC 82-90. VA's General Counsel has held that a congenital defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90 (July 18, 1990). This General Counsel opinion concluded that a defect differed from a disease in that a defect is "more or less statutory in nature" while a disease is "capable of improving or deteriorating." See VAOPGCPREC 82-90 at p.2. Congenital or developmental defects, including refractive errors of the eyes, are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127. Actual pathology, other than refractive error, is required to support impairment of visual acuity. Id. In other words, in the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia, and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Id. Service connection may be granted for hereditary diseases that either first manifest themselves during service or which pre-exist service and progress at an abnormally high rate during service. VAOPGCPREC 67-90 (July 18, 1990) published at 55 Fed. Reg. 43253 (1990) (a reissue of General Counsel Opinion 008-88 (September 27, 1988). Following a January 2018 Board remand, the Veteran was afforded a VA examination in May 2019. The VA examiner noted "visual field right eye shows a generalized sensitivity depression across most of field," but explained that "the source of this depressed sensitivity cannot be explained by results of eye examination which was completely normal bilateral." The examiner went on to explain that he could not find any evidence of record of a "congenital eye disability," but noted that there was a "common refractive error of astigmatism bilateral, with vision correctable to 20/20 right eye and left eye." Additionally, the examiner found the following: "Astigmatism is a common refractive error, affecting both of [the] Veteran's eyes equally and therefore was less likely than not incurred in or caused by the claimed in-service injury." The examiner further opined that the "astigmatism developed and progressed equally and normally in both eyes and therefore was clearly and unmistakably not aggravated beyond its natural progression by the in-service injury." However, astigmatism and refractive error are considered congenital eye disabilities under VA law. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127. In response to the Board's October 2019 remand, a VA-contracted opinion was obtained in December 2019 in which the examiner stated that there was no evidence of a superimposed injury. However, the examiner did not specifically address whether the visual field right eye showing generalized sensitivity depression across most of the field was a superimposed disease or injury as directed by the Board in October 2019. The December 2019 examiner stated that the Veteran's refractive error was mild and had been stable and not progressed since 2002. The examiner opined that the refractive error (astigmatism and myopia) was rather mild and was stable over the years so there was no evidence of aggravation beyond their natural progression. In response to the October 2020 remand, a February 2021 VA-contracted opinion was obtained from the same examiner. The examiner stated that refractive error was a developmental condition and was unrelated to any events in service. The examiner also stated that generalized sensitivity depression was seen when there was uncorrected refractive error as the Veteran had refractive error; true disease would not cause a generalized depression but rather localized defects. The examiner also stated that Veteran's refractive error had been stable over the years and similar in both eyes, with no evidence of aggravation, and the refractive error was symmetric in both eyes. The examiner stated that if there was aggravation, one would have expected a drastic change in refractive error in the right eye and a big difference in refractive error between both eyes. In the June 2021 remand, the Board found that an addendum opinion should be obtained from a different examiner as the 2021 opinion was not responsive to the questions presented in the prior remand. In response to the Board's remand, an addendum VA-contracted opinion was obtained in July 2021 in which a different examiner stated that as per treatment records, there was removal of metal debris from the Veteran's eye in service; there were no corneal scars or residual eye injury or conditions from this incident in service. The examiner stated that the best corrected visual acuities were 20/20 after the incident, indicating that there was no disability as a result of the incident. The examiner also stated that injury to one eye would not cause symmetrical abnormalities as in this Veteran. The examiner stated that refractive errors could occur at any point in life, and it was less likely than not that the debris incident caused the Veteran's refractive error, especially given that it was mild refractive error. The examiner stated that there was no evidence of eye injury or residuals of eye injury like a cornea scar on the 2002 and 2003 examination records. The examiner stated again that the Veteran's refractive error (astigmatism and myopia) was rather mild and had been stable over the years so there was no evidence of aggravation beyond their natural progression. The examiner stated that there was no evidence of a superimposed injury; as per the note of visual field right eye showing generalized sensitivity depression across most of the field, the cause of this was not known without speculation. The Board finds the VA examination reports and opinions to be of great probative value. Indeed, the examiners considered the Veteran's contention, the claims file, and clinical medical evidence before providing negative etiological opinions. In this case, the July 2021 examiner did not find that an additional eye disability resulted due to aggravation during service of a congenital disease by a superimposed disease or injury. Instead, the July 2021 examiner stated that there was no evidence of a superimposed injury, and there was no evidence of aggravation beyond the natural progression of the Veteran's refractive error of the eyes. To this point, the Board notes that medical reports must be read, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Moreover, the opinions were supported by relatively detailed rationale that contrasted the factual origin of a bilateral eye disability with the Veteran's observations and allegations. Based upon review of the evidence of record, the Board finds that the preponderance of competent and credible evidence weighs against a finding that there is a nexus between a bilateral eye disability and service. The Board acknowledges that the Veteran is competent to testify as to his beliefs that his disabilities are related to service. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit-of-the-doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b) (West 2014). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.