Citation Nr: 21006025 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 12-10 977 DATE: February 3, 2021 ORDER Entitlement to service connection for a bilateral eye disability, to include retinitis pigmentosa, pseudophakia, and aphakia, is denied. FINDINGS OF FACT 1. The Veteran's bilateral eye disability diagnosed as retinitis pigmentosa clearly and unmistakably pre-existed service and clearly and unmistakable was not permanently worsened beyond its natural progression during active service. 2. Cataracts, pseudo-aphakia and aphakia were not present until many years after service and are not related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral eye disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107, 5121; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1957 to March 1957. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran died in November 2017. The Appellant is the Veteran’s surviving spouse, who is a substitute in this appeal. See 38 U.S.C. § 5121A. The Board issued a remand in November 2019 instructing the RO to: (1) furnish the Appellant and her representative a letter requesting additional information pertinent to the claim, including authorization to obtain records and (2) to obtain an addendum medical opinion concerning the July 2019 VA examination. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO issued a December 2019 letter to the Appellant for submitting additional evidence and obtained a February 2020 and September 2020 medical opinion. The Board finds that the RO substantially complied with the November 2019 remand. Entitlement to service connection for a bilateral eye disability. The Veteran contends that his bilateral eye disability developed as a result of his military service. In a June 1971 statement, the Veteran wrote that he was found fit for service once by a draft board in Virginia and again in February 1957 during induction into the military. Because he was found fit for service twice, his military service must have aggravated his condition. In a February 2011 statement, the Veteran wrote that he worked for C & O railroad prior to his military service which required him to pass a completed physical examination. He stated, while in service, he went through most of the training. On one occasion, he had to be led back to the barracks after night training. He was told that nobody could see after dark. Then he was sent to the hospital at Fort Jackson and stayed there for a week for testing. That was the first time he was diagnosed with a disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 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). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. Id. History of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). Post-service treatment records indicate the Veteran has a current diagnosis of a bilateral eye disability. See e.g., June 1970 Private treatment record (retinitis pigmentosa); April 1996 Dr. G. record (visual acuity of OD 20/70); March 2011 VA examination (retinitis pigmentosa, pseudophakia, aphakia). The February 1957 induction examination found the Veteran to be fit for service and no eye disability was notated. However, on the February 1957 report of medical history, the Veteran indicated that he had night blindness. In a February 1957 service treatment record, the Veteran reported that he had night blindness since he was a child and that his father and two younger brothers had similar problems. The physician noted that the Veteran had a diagnosis of congenital rhodopsin deficiency. A March 5, 1957, record showed the Veteran underwent an eye examination which showed numerous white reflex and blurred disk margins. A tentative diagnosis of nyctalopia was noted. He was tested again on March 7, 1957. The results were consistent and he was given the provisional diagnosis of retinitis. See also March 1957 Separation examination. A service medical board found that the retinitis pigmentosa existed prior to enlistment and was not permanently aggravated. The Board found in a September 1971 decision that service connection was not warranted. The Veteran complained of night blindness on examination conducted approximately three years prior to entrance into service and again on examination at the entrance into service. The Board concluded that night blindness and defective vision noted on discharge examination were established by evidence to be due to retinitis pigmentosa, which was a developmental abnormality and not considered a disease within the meaning of the applicable law for service connection. The decision specifically found that there was no increase in severity of the Veteran’s defective vision during service. Thereafter, in 2011 the Veteran submitted an April 1996 medical opinion from Dr. G. which stated that the Veteran had visual acuity of OD 20/70 and OS light perception. He had less than 20 degrees of peripheral visual field in both eyes due to retinitis pigmentosa which made him legally blind. Along with the opinion, he submitted a new application for compensation dated January 2011 and February 2011 statement which explained his contention that his disability was aggravated by service. The Veteran underwent a February 2011 VA examination which found that the Veteran had retinitis pigmentosa, pseudophakia, and aphakia. The examiner stated that the retinitis pigmentosa was developmental or hereditary and was unlikely the result of the Veteran’s short military service. His condition existed prior to service and was known to get worse. The Veteran submitted private treatment records from Augusta Eye Associates dated March 2000 to August 2010. These records confirmed the Veteran’s diagnosis of retinitis pigmentosa, pseudophakia, and aphakia. The records did not indicate an opinion as to the etiology of his diagnoses. The claim for service connection was denied in a July 2011 rating decision, because the evidence of record did not indicate that the Veteran’s condition was related to his service. The Veteran appealed. In a January 2017 Board remand, the Board found the February 2011 VA examination was inadequate, because the examiner did not specifically address whether any change in the Veteran’s disability in service was a result of a superimposed disease or injury or beyond the natural progression of the disability. Therefore, an additional medical opinion was requested for clarification. While on appeal, new VA treatment records were associated with the file. In a June 2012 Primary Care note, it was recorded that the Veteran had undergone bilateral cataract surgery. More details of the surgery were not included in the file. In an August 2017 medical opinion, the examiner opined that the Veteran’s condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury event, or illness. The examiner explained that there was no claimed in-service injury, event or illness that led to the development of retinitis pigmentosa. Retinitis pigmentosa is an inherited, degenerative eye disease that is the leading cause of inherited blindness. The Veteran reported upon examination in 1957 that he had experienced symptoms since early childhood, consistent with the typical onset and course of the disease. The Veteran died in November 2017 and his surviving spouse was substituted as an Appellant in the appeal. In September 2018, the Board found that another remand was necessary because the August 2017 medical opinion did not determine whether retinitis pigmentosa was a congenital or developmental defect or developmental disease. It also did not determine whether it was at least as likely as not that there was a superimposed disorder during active duty service. Also, no opinion was provided for the etiology of pseudophakia and aphakia. A July 2019 medical opinion was obtained. The examiner opined that the Veteran’s condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury event, or illness. The examiner explained that the evidence in the current medical records supports the conclusion that the Veteran had a congenital condition, retinitis pigmentosa that progressed with age as expected. Aphakia and pseudophakia typically resulted from cataract surgery. Cataracts are known to present in patients with retinitis pigmentosa naturally at a younger age. There was no documentation of the type of cataract for this Veteran; however, at discharge the Veteran’s visual acuity was 20/20 in each eye indicating the lack of a visually significant cataract at that time. There was no evidence in the medical records to indicate that the Veteran's cataracts were a result of a service experience or that they progressed at a more advanced rate than what would be expected in a patient with retinitis pigmentosa. A November 2019 Board remand found that the July 2019 medical opinion was inadequate, because the examiner acknowledged three different eye disorders but only provided an adequate opinion for one disorder. The examiner stated that retinitis pigmentosa was not subject to superimposed disease during the Veteran’s active duty service, and not aggravated beyond the normal progression during service. With respect to aphakia and pseudophakia, the examiner stated that those disabilities were “typically result from cataract surgery and posterior subscapular cataract ‘is a frequent complication in patients with retinitis pigmentosa.’” However, pre-surgical cataracts were not documented in the record. In response to the November 2019 Board remand, the RO issued a December 2019 notifying the Appellant and her representative the right to provide additional information in support of the claim. The RO also obtained several medical opinions in February 2020. These medical opinions stated that the majority of cataracts are age-related and almost every human will develop some degree of cataracts. Overall, posterior subcapsular cataracts can be expected to be found in over 40% of those with retinitis pigmentosa. However, because the type of cataract was not specified, due to the age of the Veteran when diagnosed and treated, it was much more likely that the cataract was an age-related type, so the claimed condition of pseudophakia and aphakia were less likely than not (less than 50 percent probability) incurred in or caused by any in-service injury, event, or illness. This medical opinion did not address all of the requests made in the November 2019 remand. The RO obtained a clarification addendum opinion in September 2020 which stated pseudophakia was not a defect nor a disease, but a condition that was artificially created by a cataract surgeon after removal of a cataractous crystalline lens and replacement with an artificial plastic lens implant. Thus, it was less likely than not (less than 50 percent probability) the disorder of pseudophakia was a congenital or developmental defect or disease. Aphakia similarly is usually created by a cataract surgeon who does not use the artificial implant after cataract removal. However, aphakia can be present at birth, in the rare eye condition in which the crystalline lens is missing in the newborn. In the case of congenital aphakia, uncorrected visual acuity is very poor. Because the Veteran had good uncorrected visual acuity during his time of service, and because the diagnosis of aphakia was not made until 2011, it was less likely than not (less than 50 percent probability) the disorder of aphakia was a congenital or developmental defect or disease. The Board acknowledges the Veteran’s assertion that his bilateral eye disability was related to his military service. However, lay persons are not considered competent to medically attribute a bilateral eye disability to military service as doing to requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinkseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the competent medical evidence of record answered the question and did not support a causal relationship between the Veteran’s bilateral eye disability and his military service. The Veteran was assumed to be sound and fit for service upon induction. However, after further testing, it was determined that he had congenital night blindness which was thoroughly documented in service. In addition, the Veteran reported the same on his February 1957 report of medical history. Post-service treatment records do not indicate the development of a new condition within one year after discharge. Although each VA examination did not address each inquiry as a whole, the record indicates there was no superimposed injury incurred in service or aggravation of the condition by the Veteran’s military service. The Board also notes that the Veteran’s pseudophakia and aphakia were residuals of his bilateral cataract surgery notated in the June 2012 VA treatment record. Cataracts, pseudo-aphakia and aphakia were not present until many years after service and are not related to service. Accordingly, the criteria for entitlement to service connection for a bilateral eye disability has not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for a bilateral eye disability, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harris, Attorney Advisor 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.