Citation Nr: 21009351 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 08-13 886 DATE: February 22, 2021 ORDER Entitlement to service connection for a left eye disorder, including amblyopia, is denied. FINDINGS OF FACT 1. Strabismus and defective vision of the left eye were noted on service entrance examination and were not aggravated by service. 2. There is clear and unmistakable evidence showing that the Veteran had left eye amblyopia that preexisted his period of active duty service and was not aggravated by service. CONCLUSION OF LAW The criteria for service connection for a left eye disorder have not been met. 38 U.S.C. §§ 1110, 1111, 1113, 1132, 1137, 1153, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 1959 to May 1962. This case has a lengthy procedural history and came to the Board of Veterans’ Appeals (Board) on appeal from an April 2007 decision of the Agency of Original Jurisdiction (AOJ) which reopened the Veteran’s previously denied claim for service connection for a left eye condition and denied the claim on the merits. The Veteran testified before the undersigned Veterans Law Judge at an October 2009 hearing; a transcript of the hearing is of record. In December 2009, the Board reopened the Veteran’s claim for service connection and remanded the case to the AOJ for further development. It was remanded again in May 2011, and the Board denied the claim in a May 2012 decision. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). In a May 2013 joint motion for remand, the parties (the Veteran and the Secretary of VA) requested that the Board decision be vacated, and the issue remanded. In a May 2013 Court order, the joint motion was granted, and the issue was remanded. In January 2014, the Board remanded the appeal for another VA examination to comply with the May 2013 joint motion and Court order. The case was subsequently returned to the Board, and in March 2017, the Board remanded the case to obtain an adequate VA medical opinion. In May 2018, the Veteran’s representative asserted that the most recent VA examination was inadequate and requested remand for another opinion. In June 2018, the Board remanded the appeal to obtain an adequate VA medical opinion. The case was subsequently returned to the Board. In April 2019 the Veteran's representative asserted that the March 2019 VA medical opinion was inadequate. The Board remanded this case to the AOJ in December 2019, for another VA medical opinion. The case was subsequently returned to the Board. 1. Service connection for a left eye disorder, including amblyopia The Veteran’s claim of service connection for a left eye condition, including strabismus, amblyopia, and myopia, was previously denied in unappealed rating decisions in 1967, 1992, and 2006. The current appeal arises from the Veteran's November 2006 claim for service connection for “amblyopia (deteriorating eyesight).” See November 2006 letter from the Veteran's former representative. The Veteran contends that he has a left eye disorder, to include amblyopia and vision loss, that was incurred in or aggravated by service. He currently asserts that his left eye vision loss is due to a left eye injury in 1959 or 1960 during service, when he was hit in the left eye and left side of the head by a chair, or alternatively is due to eye strain from using binocular vision during sentry duty as a security guard for two and a half years. See October 2009 Board hearing transcript, and his letters dated in February 2011, September 2011, and March 2017. The Board notes that over the years, as will be discussed below, the Veteran has made conflicting statements about whether he was hit in the head or left eye during service, and did not claim that he had an in-service left eye or head injury until October 2008. The Veteran’s representative contends that service connection is warranted for amblyopia because he received trauma to his left eye during a fight in service, his left eyesight worsened after the in-service injury, he was diagnosed with post-traumatic amblyopia in service, and amblyopia was first diagnosed in 1960 during service and did not exist prior to service. See letters dated in May 2018 and October 2019. In April 2019, he asserted that trauma can cause amblyopia, and submitted supporting articles to this effect. Service connection may be granted for 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-elements required to establish service connection are 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). Congenital or developmental defects and refractive error of the eye are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303 (c). Strabismus is defined as an eye condition in which the visual axes cannot be directed at the same point of fixation under normal conditions of seeing. See Dorland’s Illustrated Medical Dictionary, 32nd ed., 2012, at 1778. Amblyopia is defined as impairment of vision due to abnormal development, without detectable lesion of the eye; strabismic amblyopia is defined as amblyopia resulting from suppression of vision in one eye to avoid diplopia (double vision); and traumatic amblyopia is defined as amblyopia due to injury. Id., at 57. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b). The Veteran’s June 1959 service entrance examination reveals a notation of strabismus, less than 20 degrees, and defective vision. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). Amblyopia was not noted on the June 1959 entrance examination report. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s left eye amblyopia preexisted his military service from June 1959 to May 1962. In a June 1959 report of medical history, the Veteran reported that he injured his left eye prior to service, and went to the hospital. The reviewing examiner noted that his eye complaint pertained to crossed eyes. At the June 1959 enlistment examination, he wore glasses. His uncorrected left eye distant vision was 20/70 and corrected left eye vision was 20/40, while uncorrected and corrected vision in the right eye was 20/20. His physical profile (PULHES) at enlistment included E-2 for his eyes. See McIntosh v. Brown, 4 Vet. App. 553, 555 (1993) (providing that the ‘PULHES’ profile reflects the overall physical and psychiatric condition of the service member on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). Two weeks later, on ophthalmologic consultation in early July 1959, the Veteran's uncorrected distant vision was as follows: right eye 20/20 and left eye 20/400. New glasses were ordered for him. A May 3, 1960 outpatient treatment note from a U.S. Army hospital in Germany reflects that the Veteran complained that his left eye hurt and fluttered more severely now than in civilian life, and said glasses had never corrected his left eye vision. On examination, right eye vision was 20/20 -2, and left eye vision was 20/200 +1. The diagnosis was amblyopia after trauma. He was given a physical profile of E-3, and his duty limitations included no activities requiring binocular vision. A May 3, 1960 permanent physical profile includes a diagnosis of “Aniblyopia [sic] Post-traumatic,” and the non-technical description was defective vision, left eye. He was returned to his unit for duty, but was unfit for activities requiring binocular vision. Service treatment records, including the May 3, 1960 treatment note, are negative for a left eye or head injury. In an April 1962 report of medical history at separation, the Veteran reported a history of eye trouble. The reviewing examiner noted that he had myopia corrected with glasses. On separation medical examination in April 1962, the Veteran's left eye distant vision was 20/100, corrected to 20/20, and his right eye distant vision was 20/50, corrected to 20/20. The examiner indicated that the Veteran had bilateral moderate myopia, corrected with glasses. On separation medical examination in May 1962, uncorrected and corrected left distant vision were each 20/80, the examiner diagnosed amblyopia, and PULHES included E-2 for his eyes. Several VA doctors have opined that the Veteran’s left eye amblyopia existed prior to service. See statement by Dr. G. in the November 1991 Regional Office (RO) hearing transcript at page 9, and VA examinations in October 2008, May 2010, May 2011, April 2017, and November 2020. In the May 2013 joint motion, the parties agreed that the May 2011 VA medical opinion in this case was inadequate because the examiner did not provide an adequate rationale. The parties agreed that the examiner did not explain or address the notation of strabismus on the Veteran’s June 1959 enlistment examination, and failed to address the May 1960 service treatment note which diagnosed amblyopia due to trauma. The parties agreed that although the May 2011 examiner opined that the Veteran had documented amblyopia in the left eye prior to service, the examiner failed to point to any documents or evidence in the record to support this finding and did not explain this finding in light of the May 1960 diagnosis. The Board has subsequently remanded this case several times to obtain an adequate medical opinion as to the claim on appeal, and VA supplemental medical opinions were obtained, most recently in November 2020. Service-connection may be granted for diseases, but not defects, of congenital, developmental or familial origin. See VAOPGCPREC 82-90 (July 18, 1990). The Board finds that the most competent and credible evidence of record shows that the Veteran’s left eye amblyopia is a developmental disorder. The October 2008 VA examiner opined that the Veteran's amblyopia is most likely due to the fact that he was cross-eyed since he was very young, called strabismic amblyopia. The May 2010 VA examiner opined that the Veteran's amblyopia was due to strabismus from childhood, and stated that there was no documentation of injury-related scarring, astigmatism or other clinically notable changes in the eye. The May 2011 VA examiner stated that amblyopia is a developmental defect, and that there were no anterior segment, retinal, or optic nerve findings to support ocular sequelae of trauma. The examiner opined that with regard to the Veteran's contention that the entry of amblyopia after trauma was evidence that his reported in-service facial injury was causative or contributory to his left eye vision, this contention was not supported by the history or examination findings. The November 2020 VA examiner diagnosed left strabismic amblyopia, and opined that strabismus is a known cause of amblyopia and the Veteran had strabismus during his childhood which caused his left amblyopia. The examiner stated that amblyopia can be caused after trauma if the injury causes visual impairment and occurs during the amblyopic age of less than 10 years old, but there is no evidence to support that such a trauma occurred to the Veteran; he was an adult and in the service in 1960 when the facial trauma occurred. The examiner stated that amblyopia cannot occur in adults; it is a developmental disorder that occurs only in children. This opinion is afforded high probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Therefore, the Board will consider the left eye amblyopia as if it was an acquired disorder. During his prior claims, the Veteran did not contend that his left eye disorder was due to a head or eye injury, but instead consistently asserted that it was due to eye strain as a security guard in service. In November 1991, he testified that during service for two and a half years as a security guard, his left eye began watering and fluttering, he was sent to a specialist, and given a physical profile for his left eye condition. He asserted that his vision decreased in service because of eye strain. He stated that his eyes stopped watering after his duty assignment was changed from security to supply. The Veteran agreed that when he entered service, he had a preexisting left eye condition and wore glasses, but asserted that his duties aggravated the eye condition beyond the normal limits. See November 1991 RO hearing transcript at page 12. A January 1992 VA outpatient treatment record reflects that the Veteran complained of poor vision in the left eye, and denied a history of eye injury. The diagnostic impression was likely amblyopia of the left eye but of a questionable source since there was not enough refractive difference and no strabismus. Later that month the examiner stated that there was no reason for decreased vision in the left eye since the fundus was normal, it was not refractive, and no squint was seen. In April 1992, the examiner noted that a computed tomography (CT) scan of the head and orbits was normal. The examiner indicated that records dated in 1959 and 1960 showed he was diagnosed with strabismus and amblyopia of the left eye. The diagnostic impression was amblyopia of the left eye, old. A May 2004 VA ophthalmology note reflects that the Veteran reported a history of blunt trauma to the left eye; he said he was hit in the left eye by a chair and he had poor vision after that, and he had previously been diagnosed with amblyopia. The diagnosis was questionable chronic CME left eye, RE/presbyopia, and the diagnostic impression was questionable possible source of decreased vision in past. A head CT scan was within normal limits, and there was no improvement with refraction. On ophthalmology consult in August 2004, the Veteran complained of poor vision in his left eye for four years, and reported that he was hit in the left eye with a chair in his 20s. (The Board notes that the Veteran was a teenager in the spring of 1960, which suggests that the chair incident occurred after service.) The diagnosis was chronic decreased vision in the left eye of unclear etiology, likely some degree of amblyopia, with subsequent blunt trauma; RE/presbyopia; and cataracts in both eyes – NVS. In August 2005, he was diagnosed with chronic poor vision in the left eye of unknown etiology, but the Veteran said it had something to do with service, and gave a history of blunt trauma. He was also diagnosed with hyperopia, astigmatism, and presbyopia. In a July 2005 statement and the June 2007 notice of disagreement, the Veteran again asserted that sentry duty in service and using binoculars on almost a daily basis caused deterioration of his vision, and his vision was worse in May 1960 than it was on entry. In June 2007, he noted that he was diagnosed with post-traumatic amblyopia in service, and stated that “the trauma causing the condition was the constant use of binoculars while on sentry duty coupled with constant straining of the eyes.” An April 2008 letter from a private ophthalmologist, T.S., MD, reflects a diagnosis of amblyopia in the left eye due to anisometropia, and stated that his vision has never been normal or 20/20 in that eye and could not be corrected to a normal level with glasses. He also diagnosed cataracts in both eyes. At the October 2009 Board hearing, the Veteran stated that in high school, his mother noticed that his eye was going to the right, and took him to an eye clinic which diagnosed strabismus and gave him glasses. He said that during service, he was hit in the eye with a chair in late 1959 or 1960, and his eye got worse and worse after that. He stated that he was not diagnosed with amblyopia until 1960 in service. He said he no longer had strabismus but still had amblyopia. In correspondence in February 2011 and March 2017, the Veteran said that his left eye vision worsened in service after the eye injury, and that his left eye vision loss was incurred in service and is not due to amblyopia alone. He stated that a May 3, 1960 service treatment record shows that he was diagnosed with a post-traumatic left eye condition, and asserted that he had continuous degeneration afterward due to the eye injury and not due to a genetic disorder. He asserted that the eyesight in his left eye was 20/200 in May 1960, which was a severe drop from his prior 20/70 vision at enlistment, and he was given a permanent profile on May 3, 1960 for defective vision in the left eye. He previously contended that a May 3, 1960 eye examination was more accurate than the separation examination findings, and said he did not remember his eyes being examined at the time of separation. See June 2007 correspondence. After a review of the evidence of record, the Board finds that the Veteran's recent reports of a left eye injury in service are not credible, as they are internally inconsistent with his reports in contemporaneous treatment records, with his many statements in support of his claims from 1967 until 2007, and with his reports to treatment providers in 2004, when he reported that the chair incident occurred in his 20s, i.e., after the May 1960 treatment record. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Moreover, although the May 1960 service treatment record reflects a diagnosis of amblyopia after trauma, service treatment records show no treatment for a left eye injury, the November 2020 VA examiner found no residuals of a left eye injury and indicated that an eye examination and ocular coherence tomography scans showed normal fundus and optic nerve anatomy, and concluded that there is no disorder of the left eye that affects vision except amblyopia. The Board finds that the weight of the evidence does not show that there was an increase in the severity of the noted preexisting left eye disability of strabismus and decreased vision during service. There is no evidence of increased strabismus in service, and uncorrected left eye distant vision was 20/70 in June 1959, in early July 1959 it was 20/400, in May 1960 it was 20/200 +1, in April 1962 it was 20/100, and in May 1962, it was 20/80. The November 2020 VA examiner opined that the Veteran's left eye amblyopia clearly and unmistakably pre-existed his service, and was not aggravated by service, and opined that there is no clinical evidence of residuals of a left eye injury. As the most competent and credible evidence of record does not show an increase in the severity of the Veteran's left eye disorder during service the presumption of aggravation does not attach. As such, a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required. Wagner, 370 F.3d at 1096. Because the Veteran’s pre-existing left eye disorder was not aggravated by military service entitlement to service connection must be denied. The November 2020 VA examiner also opined that the Veteran's current dry eye disease and bilateral pseudophakia, status post cataract surgery were less likely than not related to service. The rationale was that there was no evidence to support that trauma caused the Veteran's cataracts, and that cataracts are caused by aging. The etiology of dry eye disease is unknown, but it is a common eye condition that increases in incidence with aging. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his left eye disorder, including amblyopia, is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships, pathology, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the November 2020 VA examination. While the Veteran has submitted copies of Board decisions on claims for other Veterans concerning amblyopia, these other decisions are not precedential and ultimately do not serve to support the claim. Previously issued Board decisions will be considered binding only with regard to the specific case decided, and each case will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. 38 C.F.R. § 20.1303. The Board has reviewed these submitted decisions, but does not find them persuasive. The evidentiary records of these other Veterans are in relevant respects quite different from the Veteran in the present case on appeal. Every Veteran’s case presents different facts which of necessity will tend to yield different outcomes. Ultimately, the Board must make its determinations based on de novo consideration of the facts of the case being decided. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a left eye disorder and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.