Citation Nr: 21008076 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 11-05 716 DATE: February 11, 2021 ORDER Entitlement to service connection for bilateral eye disability is denied. FINDING OF FACT The most probative (competent and credible) evidence is against finding that the Veteran’s bilateral (left and right) eye disability was caused or aggravated by his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for bilateral eye disability, including manifested by loss of vision. 38 U.S.C. §§ 1110, 1111, 1131; 38 C.F.R. §§ 3.303, 3.304.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1952 to July 1954. The Veteran and a witness testified in support of this claim during an August 2013 hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. The Board remanded this claim back to the Agency of Original Jurisdiction (AOJ) in December 2013 for further development and later denied it in May 2014. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a March 2015 Order, the Court granted a Joint Motion for Remand (JMR), vacating the Board’s decision denying this claim and remanding it back to the Board for still more development and readjudication in accordance with the terms of the JMR. To comply with the Court’s March 2015 Order granting the JMR, the Board, in turn, again remanded this claim back to the AOJ in May 2019 and August 2019 for a needed medical opinion. Meanwhile, so in the interim, the Veteran unfortunately died in April 2016, but his widow was substituted as the Appellant for the purpose of processing this claim to completion. There since has been the acceptable substantial compliance with the Board's May and August 2019 remand directives. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that another remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), when the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). This claim has now been pending for approximately a decade, and the Appellant’s attorney has been the attorney of record for five of those years. In December 2020, the Board complied with her request for a copy of the complete claims file, which was mailed to her business address of record. The Board also granted a 60-day motion allowing for the submission of additional evidence and/or argument. It has now been more than 60-days; therefore, the Board is proceeding to readjudicating this claim. Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation (“nexus”) between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Congenital or developmental defects, e.g., refractive errors of the eyes are not diseases or injuries within the meaning of applicable legislation and, thus, are not disabilities for which service connection may be granted. 38 C.F.R. § 3.303(c); see also 38 C.F.R. § 4.9; Beno v. Principi, 3 Vet. App. 439 (1992). Refractive errors are defined to include astigmatism, myopia, hyperopia, and presbyopia. See M21-1MR, Part III, Subpart iv, 4.B.10.d. At the time of his death, the Veteran was legally blind and had suffered from various eye disorders over the years, including glaucoma, retinal detachment, cataracts, and refractive error. He had a prosthetic right eye. The Veteran contended that he began having problems with his eyesight in basic training, and that these problems continued until his death. In an October 2012 letter and while testifying during his August 2013 videoconference hearing before this Board, he indicated that he was thrown into a lagoon during basic training, that the next morning he went to sick call, that the doctors prescribed glasses for him the same day because an infection already had caused him to lose sight, and that four months later when he was sent to Europe he still had the glasses.   The Veteran’s service treatment records (STRs) reflect that, during his April 1952 pre-induction examination, he reported having had very frequent lacrimation with slight purulent discharge during the past two years that was then currently cured. His distant vision was 20/20 and near vision was J-1 (Jaeger 1), and no then current eye abnormalities were observed. During his subsequent August 1952 entrance examination, his distant vision again was 20/20 and near vision again was J-1 (Jaeger 1), also again with no then current eye abnormalities observed. Although it was indicated during the Veteran’s military pre-induction examination that he had a history of very frequent lacrimation with slight purulent discharge during the previous two years, it was found to have resolved by the time of his pre-induction examination, and no eye problems or abnormalities were detected during his August 1952 entrance examination. Consequently, for purposes of this decision, his eyes are considered to have been sound on entry into service, so the Board’s analysis of this claim will be limited to whether service connection is warranted based on a direct-incurrence basis. 38 U.S.C. §§ 1110, 1111; 38 C.F.R. §§ 3.303, 3.304. In October 1952, two months after entering service, the Veteran was seen for eye trouble and initially noted to have possible conjunctivitis or blepharitis. In a subsequent October 27, 1952 consultation request, it was indicated that he required chronic care for bilateral blepharitis. He was then seen for a routine consultation and prescribed sulfacetamide. It was noted that his vision was generally 20/30 in both eyes and that he could return later for evaluation of his refraction. There are no further STRs in his remaining 20 months of service noting eye-related complaints or diagnoses. During his July 1954 separation examination, the Veteran’s distant vision was 20/20 and his near vision was again J-1 (Jaeger 1). His eyes were noted to be normal upon clinical evaluation. (See Report of Medical Examination.)   There are no clinical records for the next several decades noting and eye-related complaints or diagnoses. That long a lapse of time between the Veteran’s separation from service and the earliest documentation of any current disability is a factor for consideration in deciding a service-connection claim and tends to refute any notion that current disability dates back to his service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds that, if he was having chronic or recurring vision difficulties or impairment since his service, it stands to reason there would be some mention of this in the way of documentation, such as by records showing he was treated or at the very least had relevant complaints, but there is no such indication. In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of a claimed disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records. In other words, the mere absence of evidence does not necessarily equate to unfavorable evidence. There are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). In this regard, the Board sees that the Veteran and Appellant-widow have reported that some records are now unavailable, so presumably including concerning any evaluation and/or treatment received during those many intervening years. Nonetheless, even if some of those records are now unavailable, for whatever reason, a May 1996 letter from Dr. S. R. D. detailing the history of her care of the Veteran does not mention an eye-related disability dating back to his service. The medical evidence shows treatment for eye disability as early as 1981 with a diagnosis of bilateral narrow angle glaucoma. The Veteran resultantly underwent left eye trabeculectomy (glaucoma surgery) in November 1981 and a laser iridotomy of the right eye in December 1982. In the years following that, his right eye intraocular pressure gradually increased and became uncontrolled even with him taking medications. Consequently, a right eye trabeculectomy (glaucoma surgery) also was performed in February 1990. Progressive cataracts subsequently developed, and he eventually underwent cataract extractions in both eyes. The right eye extraction was complicated by rupture of the posterior capsule with displaced nucleus into the vitreous cavity. A retinal specialist removed the nucleus, but the Veteran developed retinal detachment for which he underwent repair surgery. The right eye subsequently continued to deteriorate due to end-stage glaucoma and, as mentioned, he ultimately became blind in this eye. After that, he developed a corneal ulcer with perforation and endophthalmitis that required the evisceration; he was given a prosthetic right eye. August 1991 correspondence from Dr. C. S. confirms the Veteran by that time had become legally blind. The Appellant testified during the hearing before this Board that a doctor (Dr. R.) had informed her that the Veteran’s eyesight problem was from the problems that he had in the Army. By the time of his death, he had received diagnoses of multiple eye disabilities; the Appellant did not testify as to which was/were apparently noted to be due to service according to Dr. R. Moreover, as the Court has explained, "the connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Thus, the Board finds that her testimony concerning this lacks significant probative value. The Veteran’s testimony is inconsistent with his STRs, which do not show any permanent vision loss associated with the infection or inflammation of his eyelid (i.e., blepharitis) that he experienced during his service. His STRs also do not indicate that he was issued or prescribed any glasses at the time of the infection. Moreover, his uncorrected vision was normal at time of separation from service with no mention of him wearing glasses or requiring glasses. The claims file includes several lay statements. In January 2010 correspondence, S.R.B. attested that he had known the Veteran for more than 50 years and that, in 1980, it was recommended he not continue working for A.S. E. due to his vision. This does not, however, tend to support the notion that he had an eye disability due to his military service or that dated back to his service. In January 2010 correspondence, I.I.R. states that he has known the Veteran for more than 60 years, and that the Veteran did not have eyeglasses before service, but when he left service, he had them. In February 2010 correspondence, C.H.de F. stated that, when the Veteran returned from serving in the Army, she saw him wearing glasses, and he told her “years ago” that it was due to something that had occurred in training. These lay statement providers are competent to report what they witnessed personally; however, the Board finds that the STRs, which are contemporaneous to the Veteran’s service, are more probative than these lay statements made more than four decades after conclusion of his service and for compensation purposes. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony.)   Even assuming the Veteran was issued glasses in service, service connection is still not warranted. The lay statements are unremarkable for conjunctivitis, blepharitis, glaucoma, cataracts, or retinal detachment. And, as already explained, refractive errors of the eyes are not diseases or injuries within the meaning of applicable legislation and, thus, are not disabilities for which service connection may be granted. 38 C.F.R. §§ 3.303(c), 4.9. A March 2014 VA compensation examination reflects the opinion of the examiner, after evaluating the Veteran and reviewing the claims file for the relevant history, that his refractive error of his left eye was due to aphakia since he had cataract extraction and did not have an intraocular lens placed inside this eye. Thus, the examiner concluded the Veteran's refractive error in this eye was secondary to the cataract extraction without intraocular lens implant and was not caused or aggravated by his military service. This examiner also indicated that the senile cataracts were not caused or aggravated by the Veteran's military service. That March 2014 examiner also indicated the Veteran's main vision problem was chronic narrow angle glaucoma, treated since 1981 with glaucoma surgery in both eyes and intracapsular cataract extraction of the left eye. This examiner explained that the chronic narrow angle glaucoma is not secondary to blepharitis and is not associated with the Veteran being thrown into a polluted lake (lagoon) during his service in 1952. The examiner further indicated that the Veteran's chronic narrow glaucoma in both eyes, which required glaucoma surgery, and the senile cataracts that led to cataract extraction in both eyes without intraocular lens implant resulting in aphakia in both eyes, as well as the retinal detachment in the right eye, were not caused or aggravated by his military service. She added that the chronic narrow angle glaucoma, senile cataracts and refractive error were not secondary to conjunctivitis or blepharitis. Similarly, the Veteran's corneal perforation of the right eye and endophthalmitis, requiring evisceration, were not caused by conjunctivitis or blepharitis. This examiner concluded by pointing out the Veteran had 20/20 vision when separating from service, according to his STRs.   A January 2016/April 2018 Disability Benefits Questionnaire (DBQ) addendum/clarification notes that, with regard to the chronic narrow angle glaucoma, the examiner found that it was not incurred in nor caused by the Veteran’s military service, to include blepharitis and/or conjunctivitis. This examiner noted that the first mention of high intraocular pressure/chronic narrow angle glaucoma was in 1981, some 27 years after the Veteran’s separation from service and with a notation of treatment for 10 months. As for the cataracts and/or aphakia (lens missing (e.g., due to cataract surgery), the examiner found that they, too, were not incurred in or caused by the Veteran’s service, including by his blepharitis and/or conjunctivitis. This examiner noted that the Veteran’s 1990 right eye trabeculectomy, his glaucoma control surgery, and age can contribute to development of cataracts. Concerning the unfortunate eventual evisceration of the Veteran’s right eye, the examiner again found it less likely than not due to the Veteran’s service, including to blepharitis and/or conjunctivitis. The Veteran underwent evisceration of his right eye with prothesis placement after suffering from endophthalmitis after perforation of the corneal ulcer. His cornea had been compromised after multiple surgeries due to glaucoma, cataract, retinal detachment, and corneal ulcer, none of which was related to his service. The examiner explained that blepharitis is inflammation of the eyelids, and that conjunctivitis is inflammation of the conjunctiva, which are in no way related to the intraocular apparatus for filtration of intraocular fluid, which would cause chronic narrow angle glaucoma. The Veteran did not have direct ocular trauma or ocular surgery while in service. Moreover, he did not have any episodes of intraocular inflammation during his service, like uveitis. As per Mayo Clinic, blepharitis and conjunctivitis are not included in the risk factors for chronic narrow angle glaucoma. The examiner also noted that the redness of the eyes associated with acuate glaucoma attack (as opposed to conjunctivitis) can only be resolved by a laser treatment (peripheral iridotomy) or surgical iridotomy, neither of which was noted to have occurred during the Veteran’s service. The examiner explained that wearing eyeglasses signals refractive errors, not ocular pathology, and that chronic blepharitis and one episode of uncomplicated conjunctivitis do not change refractive error. Rather, refractive errors, although having genetic predisposition due to eye length and corneal curvature, are part of a natural progression. The Veteran did not have ocular surgery while in service or direct ocular trauma to change the corneal curvature or refractive power of his eyes. (The Board finds that any contention that the Veteran had more than one episode of conjunctivitis in service is less than credible given his STRs.) Finally, the examiner determined the Veteran’s eventual blindness was due to his chronic narrow angle glaucoma and complications of cataract surgery, corneal edema with subsequent corneal ulcer, and endophthalmitis; the unfortunate evisceration was in no way related to his service. In sum, the examiner considered the website articles by the Mayo Clinic that were submitted by the Appellant and found that they did not support that the Veteran’s in-service complaints/diagnosis was related to his post-service diagnoses. The Board also sees that the article on blepharitis notes that it “usually doesn’t cause permanent damage” to the eyesight, which the Board finds would be less likely than not (not, instead, as likely as not or more than likely). The article on conjunctivitis notes that it “can” cause inflammation in the cornea that can affect vision. The term “can”, however, is speculative and insufficient upon which to grant service connection. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). In addition, the Veteran was treated in service for his conjunctivitis, and the article notes that prompt treatment can reduce the risk of complication. The article on glaucoma notes numerous risk factors to include age, race, family history, diabetes, high blood pressure, heart disease, severe trauma to the eye, corneal thickness, retinal detachment, eye tumors, high nearsightedness, and “eye inflammations may also induce glaucoma.” This Veteran has been noted to have had hypertension, although not prior to 1981. Notably, the 1981 private record (Dr. Rivera) notes trauma in that he had been hit with a ball two years earlier, and an October 1996 OptiCare record notes a family history (parents or siblings) having eye complaints. Even were the Board to assume for the sake of argument that the internet articles rise to the level of a medical article or medical treatise, a medical article or treatise “can provide important support when combined with an opinion of a medical professional” if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). See also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). In short, articles and treatises tend to be general in nature and tend not to relate to the specific facts in a given Veteran’s claim. In the present case, the articles submitted by the Veteran or Appellant-widow fall into this general category. None of the articles pertain specifically to this Veteran, and the articles are not combined with any opinion of a medical professional providing a supporting nexus based on a review of the pertinent records. To the contrary, the DBQ medical opinion discussing the Mayo Clinic information did not find the required correlation between the Veteran’s eye disabilities and his service. A March 2020 DBQ addendum/clarification notes the Veteran had a blind right eye secondary to end-stage glaucoma. The right eye had a history of complicated cataract extraction that required a second intervention for extraction of the cataract remains as well as developing retinal detachment that required repair. The blind right eye developed corneal edema, perforated corneal ulcer, and endophthalmitis, requiring its removal. The Veteran’s loss of vision in his left eye was due to chronic narrow angle glaucoma, aphakia, and refractive error.   The March 2020 examiner also found that the Veteran’s report of being thrown into the lake and subsequently having inflammation in his eye lids and inflamed and painful eyes is consistent with his diagnoses in service. However, his in-service diagnoses do not affect internal structures of the eye, the iris, the ciliary body, or the trabecular meshwork. The examiner also pointed out that, if the Veteran had an acute angle closure glaucoma incident in service, it would have required prompt treatment to lower pressure and making passage for the aqueous humor with either laser or surgery, which was not the situation for this Veteran. In addition, his wearing of glasses would be evidence of refractive error and does not support any loss of vision other than refractive error. Finally, the examiner concluded the record does not support secondary angle closure due to intraocular inflammation as the signs of such were not noted in the private clinical records post service. In sum, the Veteran, while experiencing symptoms of blepharitis and/or conjunctivitis in service, he did not have the symptoms or treatment that would support a finding that he had intraocular trauma such as to eventually lead to his post-service diagnosis. For these reasons and bases, service connection for eye disability is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).   In closing, the Board acknowledges the Veteran’s statement that he believed that he was discriminated against in his claim because he was Puerto Rican and not born in a U.S. state. The Board certainly appreciates his honorable service. And, to be clear, this decision is in no way based on race, ethnicity, place of birth, or other potentially discriminating factor. Rather, it is based on the evidence of record, to include especially the extensive body of medical evidence that is not supportive of the claim or even in relative balance, for versus against the claim. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.