Citation Nr: 21009780 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 11-02 268 DATE: February 23, 2021 ORDER Entitlement to service connection for left eye redness and blurriness, as postoperative residuals of left eye recession and resection surgery, outside of the scope of the usual effects of surgical treatment, is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran developed left eye redness and blurriness as postoperative residuals from in-service left eye recession and resection surgery outside of the scope of the usual effects of surgical treatment. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for left eye redness and blurriness, as postoperative residuals from in-service left eye recession and resection surgery, outside of the scope of the usual effects of surgical treatment referenced in 38 C.F.R. § 3.306(b)(1), have been met. 38 U.S.C. §§ 1131, 1132, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(b), 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to August 1979. This case initially came before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) that denied service connection for exotropia, left eye. In February 2012, the Veteran testified at a Board hearing before a Veterans Law Judge who is no longer employed by the Board. He was notified and given another opportunity to request a hearing. The most recent hearing correspondence dates to March 2017, when the Veteran withdrew his request for a second hearing. The case has been before the Board multiple times. Most recently, in May 2020, the Board remanded the claim to obtain an addendum medical opinion. The development has been completed, and the claim returns for appellate review. In December 2020, the Veteran appointed a private attorney as his representative. The Board recognizes this change in representation. The Board has recharacterized the claim as for postoperative residuals of left eye recession and resection surgery to more accurately reflect the Veteran’s disability picture and the resolution of the claim herein. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Postoperative residuals of left eye recession and resection surgery Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service treatment records (STRs) include a July 20, 1976 Medical History Report at the time of entrance into service. It noted that the Veteran had defective vision and a weak left eye. The corresponding enlistment examination reported left lateral strabismus as an abnormality. Thus, left lateral strabismus is noted as a preexisting disability, and the presumption of soundness does not apply to this specific disability. 38 U.S.C. § 1132; 38 C.F.R. § 3.304(b). However, the Veteran’s reports concern new, specific symptoms following the below April 1979 left eye surgery that were not part of the preexisting left lateral strabismus disability. Further consideration of the preexisting disability regulations and aggravation of preservice disability under 38 C.F.R. § 3.306 is therefore not needed. April 1979 STRs showed that the Veteran had surgery for left eye exotropia and associated amblyopia. The operative procedures were left eye recession lateral rectus and resection medial rectus. No complications were reported. He was given a restricted profile for limitation of strenuous activity for 14 days. July 1979 STRs included a follow-up evaluation. The Veteran reported that he thought he was again becoming exotropic. Clinical findings were detailed. The clinician assessed recurrent left exotropia, postoperative and left amblyopia. He advised against further surgery since recurrent exotropia had not stabilized. In June 1979, the Veteran had a separation examination. Eyes, ophthalmoscopic, pupils and ocular motility were clinically evaluated as normal. Left eye refractive error was reported. An August 1979 note confirmed that the Veteran was not aware of any changes since the July 1979 separation examination. March 2009 VA emergency department (ED) records showed that the Veteran presented for blurry vision, especially in his left eye. He reported a history of eye surgery in the 1970s. He denied any acute eye problem or recent eye history. Clinical evaluation showed the left eye deviated to the lateral side. Left eye vision was listed as blurry with 20/20 results. The clinician recommended an eye clinic evaluation. June 2009 VA treatment records included reports about a long history of poor left eye vision. The Veteran reported that his vision started to “go bad” after strabismus surgery in the 1970s. Ocular findings were detailed. The physician assessed history of left eye strabismus following 1970s surgery with gaze deficits and amblyopia. She assessed the Veteran as functionally monocular and recommended additional evaluation. January 2010 VA treatment records noted a history of poor left eye vision since childhood. The Veteran had left eye surgery during active service. His eye started to drift out about a month following the surgery. Ocular findings were detailed. The physician assessed left eye congenital amblyopia and exotropia. He also reported that the Veteran probably had recession and resection (R/R) surgery. In April 2010, the Veteran had left eye strabismus surgery. In February 2012, the Veteran testified at a Board hearing. He reported that he had a left eye problem prior to military service. However, it became worse following the surgery with blurriness and redness. He stated that he developed blurred vision about a year following the surgery. Before the military surgery, he did not have redness or blurriness affecting his left eye. In July 2016, the Veteran had a VA eye conditions examination. The clinician diagnosed left eye amblyopia and exotropia. He noted a medical history for these conditions being associated with a childhood meningitis episode. As a residual, the Veteran’s left eye progressively turned out and prompted the 1979 corrective surgery for cosmetic purposes. The surgical benefits only lasted for two or three months. Another surgery took place in 2010 with some benefit. Ocular findings were detailed. In November 2020, an addendum medical opinion was obtained from an ophthalmologist. She noted the Veteran’s contentions about left eye blurriness and redness developing only after the in-service surgery. She stated that the surgical treatment improved exotropia for many years until it slowly returned. For the following reasons, the evidence is at least in a state of relative equipoise as to whether the Veteran developed blurry vision and redness as postoperative complications from the April 1979 left eye recession and resection surgery, and service connection for these postoperative residuals of left eye surgery is warranted. The Veteran stated that he developed new symptoms of left eye blurriness and redness following the April 1979 surgery. See February 2012 Board hearing transcript. These eye symptoms are observable, and the Veteran is competent to report about their onset and history. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). He also reported this history to a treating VA clinician in June 2009. Thus, the Veteran has met the in-service injury requirement. In addition, the current disability element for VA compensation purposes is broad. It includes any functional impairment that affects a Veteran’s earning capacity. Saunders, 886 F.3d at 1364-65. Thus, the Veteran’s current symptoms of left eye redness and blurriness causing impairment in earning capacity establish a current disability. He reported that these symptoms were not part of his preexisting left eye disorder. Notably, the November 2020 VA-contract ophthalmologist characterized the in-service surgery as cosmetic. Her cosmetic surgery characterization implies that the Veteran had adequate left eye function prior to the surgery and supports the Veteran’s reports that he did not have these vision problems from preexisting left lateral strabismus. Although STRs following the surgery indicate normal findings, his left eye symptoms reports cannot be discounted simply because they are unaccompanied by contemporaneous medical evidence following the surgery. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board has also considered that “the usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service.” 38 C.F.R. § 3.306(b)(1). The above evidence reflects that the Veteran did not experience the “usual effects” from the in-service surgical treatment. Rather, he experienced left eye redness and blurriness that impaired him then and have continued to impair him. Consequently, this provision is not for application. In sum, the Veteran's reports about developing postoperative left eye redness and blurriness as new symptoms are plausible. His reports establish in-service injury not consisting of the usual effects of ameliorative surgical treatment, continuous similar symptoms, and current disability due to the impairment caused by these symptoms. His reports are clear that these symptoms only manifested after the surgery and do not conflict with the additional evidence that he had a different preexisting left eye disability. The evidence against the claim consists of the November 2020 VA-contract medical opinion. The ophthalmologist noted the Veteran’s reports but did not directly address whether he developed additional symptoms following the April 1979 left eye surgery. She did not consider the expansive current disability standard noted above to include any postoperative symptom causing functional impairment in earning capacity. Given the limitations of the November 2020 VA-contract medical opinion's supporting rationale, it is not entitled to probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Based on the above, the Board finds that the evidence for this claim is in a state of relative equipoise. Buchanan, 451 F.3d at 1335 (lay evidence may be sufficient in and of itself to substantiate a service connection claim). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for blurry vision and redness as postoperative complications from left eye recession and resection surgery, outside of the scope of the usual effects of surgical treatment referenced in 38 C.F.R. § 3.306(b)(1), is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.