Citation Nr: 21005898 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 12-11 367A DATE: February 2, 2021 ORDER Entitlement to service connection for a bilateral eye disability is granted. FINDINGS OF FACT 1. A bilateral eye disability due disease or injury did not manifest in service and is not attributable to service. 2. Some eye diagnoses are related to refractive error. 3. The Veteran has an undiagnosed illness resulting in a decrease in depth perception. CONCLUSIONS OF LAW 1. A bilateral eye disability due to disease or injury was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2019). 2. A decrease in depth perception due to an undiagnosed illness (Gulf War) was incurred in Gulf service. 38 U.S.C. § 1117. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on duty from July 1979 to May 1983 (United States Naval Academy), May 1983 to February 1994, September 2001 to April 2003 and October 2003 to August 2010. The Veteran previously testified at a hearing in June 2013 before a Veterans Law Judge (VLJ) who retired after remanding the Veterans case in December 2014. The Veteran elected to have a new hearing. Therefore, the Board remanded in March 2017 for a new hearing. In June 2019, the Veteran testified before the undersigned VLJ at a Board of Veterans’ Appeals (Board) hearing in Fort Harrison, Montana. A transcript of the proceeding is of record. During the June 2019 Board hearing, the VLJ clarified the issue on appeal; clarified the concept of service connection claims; identified potential evidentiary defects which included a nexus between the Veteran’s bilateral eye disability and service; clarified the type of evidence that would support the Veteran’s claim; enquired as to the existence of potential outstanding records; and held the record open for 90 days to allow for the submission of evidence. Thus, the actions of the VLJ comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. The Board most recently remanded the Veteran’s claim in November 2019. The Veteran’s claims folder has returned to the Board for further appellate consideration. In November 2019, the Board also remanded a claim of service connection for a gastrointestinal disability. In a subsequent rating decision dated June 2020, this   claim was granted. In view of the foregoing, this issue has been resolved and is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997). The Board finds it necessary to address this case under different laws since the AOJ has accepted Gulf Service. Service connection for a bilateral eye disability under sections 1110 and 1131 Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The Board notes that the Veteran has not claimed that his disability on appeal is the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran claims that he suffers from reduced depth perception as a result of his duty as a fighter pilot in service. See, e.g., June 2013 Hearing Transcript, page 7. He also contends that he sustained facial trauma while a boxer in the Naval Academy. Id. at page 12. Service treatment records reflect that, a September 1983 report of medical examination for the Veteran’s candidacy for naval aviator noted that the Veteran passed the AFVT test for depth perception without corrective lenses. Reports of medical examinations dated September 1985, October 1989, September 1990 and November 1993 noted that the Veteran scored a 16 out of 16 on the Verhoeff test for depth perception, passing without corrective lenses. Reports of medical examination with the 120 Medical Squadron dated September 2000 and September 2003 reflect that the Veteran passed the depth perception test with corrective lenses. However, a November 1979 record documents the Veteran’s treatment for an infected cut sustained while boxing. The Veteran also complained of pain in his right eye due to trauma and an abrasion was noted in February 1984. A September 2006 optometry note from the 120 Medical Squadron noted that the Veteran failed the depth perception test with and without corrective lenses. A May 2010 retirement physical included a diagnosis of chronic astigmatism and myopia, left eye. A report of April 2010 eye examination from the Helena Eye Clinic noted that the Veteran reported reduced depth perception. The examiner diagnosed reduced stereopsis, measured at 400 seconds of arc, which is far below the ideal 40 seconds of arc. He had no ocular disease or strabismus. The examiner opined that it was difficult to determine exactly why his depth perception is reduced. Moreover, a January 2020 VA examination documented findings of fusion with bilateral defective stereopsis, bilateral pinguecula, and stenosis of right lacrimal punctum. The Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the competent and probative evidence of record is against a finding that the Veteran has a bilateral eye disability due to disease or injury that is related to his service.   Specifically, the Veteran was provided a VA examination in January 2020. The VA examiner noted the Veteran’s report of injury to his eyes due to boxing in the Naval Academy as well as his flying in service. After examination of the Veteran and consideration of his medical history, the VA examiner concluded that it is less likely than not that the Veteran’s eye disability was incurred in or caused by service. The examiner’s rationale was based on their finding that accurate depth perception requires fusion as well as relatively equal visual acuity. The examiner further noted that the Veteran is correctable to 20/20 in each eye with moderate myopia. Also, there were no signs of any ocular pathology to impact the vision in one eye more than the other. The examiner was unable to detect an eye muscle deviation that could account for any lack of fusion. The examiner moreover noted that the Veteran does in fact have significantly reduced depth perception as well as constricted visual fields, but it was not possible to ascertain an etiology for that. While the examiner noted that boxing trauma as well as repeated episodes of G-force could cause reduced depth perception if they subsequently reduced vision in one eye, there were no signs of reduced vision monocularly. The examiner finally noted that due to the lack of scientific literature concerning this phenomenon as well as the lack of pathology, a nexus to service could not be established. The January 2020 VA examiner’s opinion was based upon thorough analysis of the Veteran’s entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”]. Additionally, the examiner noted the Veteran’s in-service trauma from boxing and performing his duties as a pilot and further noted that such trauma did not cause the current bilateral eye disability. The Board notes Dr. W.D.S opined a loss of visual acuity began in service and is linked to service. However, this opinion essentially addresses refractive error, which by law is not a disease or injury for VA purposes, and therefore cannot be service connected. See 38 C.F.R. § 3.303(c). Therefore, the Board finds that the opinion of Dr. W.D.S. is of little probative value in evaluation of the Veteran’s claim. The Board also notes that Dr. J.W., a private physician, opined in an August 2020 report that she could only speculate whether the Veteran’s service caused his current bilateral eye disability. Pertinently, the Court of Appeals for Veterans Claims (Court) has held that medical evidence which is speculative, general, or inconclusive in nature cannot support a claim. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). As such, the Board finds the report from Dr. J.W. is of no probative value in evaluation of the Veteran’s claim. The Board acknowledges the Veteran’s submission of medical research which indicates a link between bilateral eye disability and service. The Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses]. However, the research submitted by the Veteran is of a general nature and does not contain any information or analysis specific to the Veteran’s case. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that medical evidence which is speculative, general, or inconclusive in nature cannot support a claim. See Jones, supra. As discussed in detail above, the January 2020 VA examiner reviewed the Veteran’s medical history and considered his complaints and thereafter concluded that the Veteran’s current bilateral eye disability is not related to service. The Board has therefore placed great probative value on the findings of the VA examiner. As such, the research submitted by the Veteran is of little or no probative value, and, to the extent that there is any probative value, is greatly outweighed by the examiner’s opinion. In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). “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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). To the extent the Veteran asserts that his current bilateral eye disability is related to his service, he is competent to report that he has a current diagnosis (as that is documented in the record). He is also competent to report that he has had symptoms since service. However, the Board finds that the Veteran’s statements do not outweigh the opinion of the VA examiner who provided a thorough examination of the Veteran, considered his medical history and thereafter indicated that the Veteran’s current bilateral eye disability is not related to service. Thus, these arguments do not outweigh the specific findings of the VA examiner who is a skilled neutral professional. It is clear that the Veteran has an impairment of depth perception. However, the law if specific that any disability under sections 1110 or 1131 must be due to an underlying disease or injury. The most convincing medical evidence establishes that the appellant does not have an identified pathology to account for this impairment. In the absence of a disease of injury that results in disability, there cannot be a valid claim under sections 1110 and 1131. In short, the more credible and probative evidence establishes that the Veteran’s bilateral eye disability was not manifest during service. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claim under sections 1110 nad 1131 of entitlement to service connection for a bilateral eye disability. Section 1117 The AOJ has accepted that the Veteran had qualifying Gulf War service. As noted above, the appellant has an impairment of depth perception and we accept that such rises to the level of disability. Furthermore, such impairment was documented in the service records. Despite numerous examinations, underlying pathology (disease or injury) to account for the disability has not been identified. The most probative medical opinion established that there was no pathology to account for the impairment. Although the examiner stated that there was no nexus to service, the record establishes in-service manifestations. Coupled with a disability without underlying pathology, we conclude that this is within the meaning of an undiagnosed illness resulting in disability. Since it was first manifest in service, we grant on a direct rather than a presumptive basis. Service connection for an undiagnosed illness resulting in impairment of depth perception is granted. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.