Citation Nr: 21005927 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 13-05 991 DATE: February 2, 2021 ORDER Entitlement to service connection for a right eye condition is denied. FINDING OF FACT The probative evidence of record establishes that the Veteran's right eye disorder clearly and unmistakably preexisted service, and he did not have an in-service disease or injury superimposed on his right eye condition. CONCLUSION OF LAW The criteria for entitlement to service connection for a right eye condition have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1131, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1974 to August 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). As a preliminary matter, the Board notes that this claim has been before the Board on multiple prior occasions: in February 2017, April 2018, and most recently in December 2019. Each time the Board has remanded the claim for further evidentiary development necessary for adjudication, discussed below. In consideration of the present appeal, the Board finds that there has been substantial compliance with the December 2019 remand directives, and as such, will proceed with appellate review. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a right eye condition is denied. The Veteran contends that he is entitled to service connection for his right eye condition because his eye disorder worsened during his military service. Specifically, the Veteran contends that his entrance and exit physicals show "extreme change in distance and near vision" demonstrating in-service worsening. See e.g., February 2012 notice of disagreement (NOD). Additionally, the Veteran asserts that during his active service, a machine gun round exploded near him on the shooting range, causing burns on his face and powder to go into his right eye, which also caused worsening of his right eye disorder. See e.g., February 2013 VA Form 9. In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Relevant to this claim, a veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C. §§ 1111, 1137. The Board notes that congenital or developmental defects are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303 (c), 4.9. VA's General Counsel has held, however, that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303 (c), 3.306. According to the VA General Counsel's opinion, however, although service connection cannot be granted for a congenital defect, such a 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. Turning to the record, medical evidence reflects that the Veteran has a diagnosis of staphyloma posticum of the right eye. See January 16, 2020 VA examination. As such, the first element of service connection, a current disability, has been met. The Veteran’s service treatment records (STRs) reflect that upon enlistment, the Veteran reported that he wears contacts or glasses. Upon testing, the Veteran’s right eye distant vision was categorized as “light” and his near vision was categorized as “J-14[.]” An eyewear prescription during service reflects that the Veteran’s vision in his right eye, both corrected and uncorrected, remained categorized as “light” and “J-14”. See March 4, 1974 eyewear prescription note. Upon separation from service, the Veteran reported that he wears glasses, and upon examination his vision was found to be categorized as the following: right eye distant vision uncorrected, 20/200, corrected to 20/50; right eye near vision uncorrected 20/100, corrected to 20/60; refraction by -11.00. At the time of this exam, the Veteran was diagnosed with amblyopia of the right eye (lazy eye that can result in decreased vision). See July 1, 1975 separation examination, report of medical examination. There are no references in the Veteran’s STRs to any type of incident such as the one he asserts has resulted in worsening of his vision. The Veteran was first afforded a VA examination in December 2011. The VA examiner indicated that the Veteran had diagnoses of posterior staphyloma and cortical cataracts of the right eye. The Veteran reported that when he entered the service, his right eye had poor vision “but not so much that he couldn’t qualify on the range.” During the examination, the Veteran’s visual acuity for corrected distance was 20/70 and for corrected near was 20/50. The VA examiner indicated that the Veteran did not have anatomical loss, light perception only, extremely poor vision or blindness of either eye. Upon internal eye exam, the VA examiner noted abnormal fundus with morning glory anomaly or posterior staphyloma present in the right eye’s optic disc. The VA examiner also noted that the Veteran has cataracts. The VA examiner stated “[t]he Veteran has poor vision in the right eye which can correct to 20/60 with a -18.00 prescription which would be impossible to correct with spectacles. The posterior staphyloma of the right eye has resulted in the high myopia and poor corrected vision. His myopia has progressed from the -11.00 prescription found at his exit exam in the 1970s, but his corrected vision is essentially stable. He is pursuing contact lens correction as an option to improve the vision in the right eye.” Regarding etiology, the VA examiner opined that the Veteran’s right eye condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The VA examiner reasoned that the Veteran’s entrance exam from February 1974 documented that his right eye vision at best corrected to light perception at distance. The VA examiner noted that the Veteran’s separation exam documented that he had a vision of 20/200 in the right eye uncorrected, with 20/50 with -11.00x180 prescription. Therefore, the VA examiner concluded, the Veteran’s poor vision in the right eye was documented at the time he entered service. Pursuant to the Board’s February 2017 remand, which found the December 2011 VA opinion regarding etiology of the Veteran’s eye condition to be inadequate as it did not completely discuss whether the Veteran’s current right eye condition pre-existed service, an addendum medical opinion was obtained in March 2017. The March 2017 VA examiner stated “[t]he Veteran has a posterior staphyloma of the right eye, which is a congenital anomaly, and therefore pre-existed service. It was noted on his entrance exam that he had light perception vision and they did not find it correctable to anything better since a high myopic prescription was not tried. The [Veteran’s] vision at separation tested better with a high myopic prescription that exists because of the staphyloma, a more accurate best corrected acuity was found which was documented as better than his vision upon entering service. His poor vision [of the] right eye has also been reported by the Veteran himself to have been present since childhood and is documented in multiple exams. The prescription appears stronger at separation because the correct prescription was not actually determined at the entrance exam. Either way, the congenital condition and poor vision was present before service and is unchanged by service. There was no worsening when the best corrected acuity is actually better on separation exam than the enlistment exam. He has age related cataracts, unrelated to service or trauma. Records thoroughly reviewed.” The claim was then returned to the Board, whicch again remanded the issue in April 2018 to the AOJ to obtain an addendum medical opinion addressing whether the Veteran’s current right eye condition is a congenital disease or a congenital defect and if determined to be a defect, whether it was subject to a superimposed disease or injury during service. The opinion was obtained in December 2018 from a VA clinician. The December 2018 VA examiner stated the following: “Records reviewed[.] A posterior staphyloma is a thinning and outpouching of the back scleral wall of the eye. Posterior staphylomas are most commonly congenital or a manifestation of extrema pathological myopia (nearsightedness). The appearance of the Veteran’s staphyloma, which includes the area around the optic disc), is most consistent with the diagnosis of congenital posterior staphyloma, which is a developmental defect. There is associated myopia with this as well, due to the outward expansion of the sclera, making the eye much longer in length, resulting in the extreme myopia. There was no progression of decrease in vision in service, and there was no additional injury or aggravation of the existing condition/defect in service. The [Veteran’s] vision was actually determined to be better at separation than at entrance, due to a more accurate determination of refraction for the level of nearsightedness.” The Board again remanded the claim in December 2019, finding that there had not been substantial compliance with its remand directives from April 2018, as the VA examiner did not address whether the Veteran’s congenital defect was subject to a superimposed disease or injury during service. As the correct legal standard was not used in the medical opinion, an addendum opinion was required upon remand. The addendum opinion was obtained in August 2020. The VA examiner opined that “[t]here is no evidence that the congenital posterior staphyloma defect of the right eye was subject to a superimposed disease or injury during service. I have searched the Veteran’s [claims file] for such an event. I did not find evidence of such an event. The condition of the eye is consistent with a congenital posterior staphyloma defect. There is nothing presented to me that validates anything other than the presence of a condition that was present at birth and developed and changed over time, as would be expected. The cataract is also a normal developmental disease, very common in human beings of the Veteran’s age. The fact that the cataract was in both eyes and developed at about the same rate for each eye, would argue that this was normal development for this Veteran, and not related to a right eye injury.” Considering the above-summarized evidence, the Board finds that the Veteran’s current right eye condition is a congenital defect. Further, the VA examiner stated that there were no events or injuries to the Veteran’s right eye noted in service, nor symptomatology indicating such. Therefore, the Board finds that the Veteran’s right eye condition did not worsen and that it was not subject to a superimposed disease or injury during his active military service. The Board gives the August 2020 VA examiner’s opinion great probative weight because it was based on a thorough and detailed review of all relevant evidence of record, he has the medical expertise to make such a determination, and in doing so, cited relevant research in support of his conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the Veteran's lay opinion that his right eye condition has worsened since service, to include that a superimposed disease or injury occurred during military service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the Veteran is competent to report the symptoms he experiences as a result of his right eye disorder. See Jandreau v. Nicholson, 492 F.3D. 1372, 1377 (Fed. Cir. 2007). However, the Board finds the question of the exact diagnosis and the potential relationship between the Veteran's right eye condition and service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, the Veteran cannot provide competent medical evidence establishing a connection between the two. Thus, the weight of the evidence is against the claim for service connection for a right eye condition. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.