Citation Nr: 21012640 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 09-18 991A DATE: March 4, 2021 ORDER Entitlement to service connection for pinguecula and arcus senilis is granted. Entitlement to service connection for presbyopia and cataracts is denied. FINDINGS OF FACT 1. Pinguecula and arcus senilis initially manifested during active service. 2. The Veteran’s presbyopia, a refractive error of the eye, is not considered a disease or injury for VA compensation purposes, was not aggravated in service, and was not subject to superimposed disease that developed in service. 3. No other eye disability, including cataracts, manifested during, or is otherwise related to, active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for pinguecula and arcus senilis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for presbyopia and cataracts have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to August 2007. His claim comes before the Board of Veterans' Appeals (Board) on appeal of an October 2007 Department of Veterans Affairs (VA) rating decision. The Veteran testified in support of this claim during a videoconference hearing held before the undersigned Veterans Law Judge in May 2014. The Board remanded this claim to the Agency of Original Jurisdiction (AOJ) in August 2014, March 2016, April 2017 and September 2020. Entitlement to service connection for an eye disability, to include presbyopia, arcus senilis, pinguecula and cataracts The Veteran seeks service connection for an eye disability on a direct basis as related to his active service. During his initial VA examination conducted in April 2007, he claimed that he had a history of allergic conjunctivitis, dry, red, watery eyes and blurry vision, which necessitated treatment with a combination of ointments and eye drops. During his May 2014 hearing, he testified that, prior to service, he had no eye conditions. He further testified that, in 1995, at Fort Sill in Oklahoma, his eyes became very red and watery with pus-like discharge. A doctor reportedly prescribed steroid cream to apply around his eyes, which worsened the condition (doctors thought he might have glaucoma, which they still don’t know), and since then, he has had eye problems. The Veteran also mentioned his eyes in describing symptoms of his allergic rhinitis, which is separately service connected. He attributed eye redness and swelling and bloodshot eyes to that disability. 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; 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 congenital or developmental defect or refractive error of the eye is not considered a disease or injury for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. As such, service connection may only be granted for such a condition in two cases: if the condition is considered a disease and aggravation is shown; or if the condition is considered a defect, and it is found subject to superimposed disease or injury that developed in service, resulting in increased disability. VAOPGCPREC 67-90 (July 18, 1990), 55 Fed. Reg. 43253 (1990) (diseases of hereditary origin can be incurred or aggravated in service if their symptomatology did not manifest itself until after entry on duty); VAOPGCPREC 82-90 (July 18, 1990), 56 Fed. Reg. 45,711 (1990) (if congenital defect found to be subject to superimposed disease or injury and that disease or injury develops during service, resulting in increased disability, service connection may be granted for consequent disability). The questions for the Board are therefore whether the Veteran has an eye disability that began during service; whether the nature of such disability requires a showing of aggravation or superimposed disease; and, if not, whether such disability is at least as likely as not otherwise related to service. For the reasons that follow, the Board concludes that the evidence supports service connection for certain eye disabilities first shown in service. As asserted, the Veteran reported eye problems in service from June 1977 to June 2007. He used corrective lenses for vision complaints but also reported eye symptoms unrelated to his vision. In 1985, he presented complaining of watery eyes that started with fluorescent lighting at work. An examiner suggested action to reduce the glare. In April 1993, the Veteran reported tightness in his eyes, which the examiner indicated was probably due to allergies and/or photophobia. In October 1995, the Veteran reported eye redness and discharge, for which he had been given a steroid in the past. The examiner confirmed a whitish discharge, diagnosed Meibomian gland dysfunction, and prescribed antibiotics. By January 1996, after three months of treatment, the Veteran reported improvement, and an examiner noted that the eye symptoms of itchy, red eyes that burned when the Veteran cut grass had resolved. From 1999 to 2006, examiners noted that the Veteran had pigmented pinguecula in the conjunctiva, arcus senilis and presbyopia. Post-service treatment records indicate that, since discharge, the Veteran has continued to receive treatment for eye complaints, and medical professionals have diagnosed multiple eye conditions. In its September 2020 Remand, the Board instructed the AOJ to obtain an opinion of a VA eye specialist on the etiology of each eye condition. The examiner was tasked with listing each diagnosed eye condition, identifying those congenital in nature, and characterizing each congenital eye disability as a disease or defect. In response, in an October 2020 report, the examiner listed the Veteran’s eye disabilities as pinguecula, arcus senilis, presbyopia and cataracts. He noted that the Veteran was glaucoma suspect (being monitored for the possible development of glaucoma), which highly likely falls into the congenital category, but does not have glaucoma. Pinguecula & Arcus Senilis The Veteran underwent multiple VA eye examinations between April 2007 and October 2017 and had his case reviewed by a VA examiner in October 2020, and, on each occasion, VA examiners characterized his arcus senilis as age related, not service related. However, the Veteran spent 30 years on active duty, and according to his service treatment records, he was noted to have arcus senilis prior to discharge. As this disability initially manifested during service, whatever the cause, and still exists, it may be service connected. In October 2020, the VA examiner indicated that the pinguecula is the only condition that could be related to service; it is due to sun and UV-400 exposure and common among Gulf War veterans or other veterans stationed in desert environments or the Middle East. Again, according to service treatment records, the Veteran was noted to have pinguecula prior to his discharge from active service. As it still exists, it too may be service connected. Presbyopia According to the National Eye Institute at the National Institute of Health and an October 2020 VA examiner, presbyopia is a type of refractive error (congenital in nature). https://www.nei.nih.gov/learn-about-eye-health/eye-conditions-and-diseases/refractive-errors. As such, it may not be considered a disease or injury for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. Service connection may be granted for the presbyopia, however, if it is considered a disease and in-service aggravation is shown, or it is considered a defect shown to be subject to superimposed disease or injury that developed in service, resulting in increased disability. VAOPGCPREC 67-90; VAOPGCPREC 82-90. Here, no VA examiner has characterized the Veteran’s presbyopia as a defect, instead noting it is age related. In addition, service treatment records reflect that it developed over time, after the Veteran had been in service for many years. O'Bryan v. McDonald, 771 F.3d 1376, 1380-81 (Fed. Cir. 2014) (typically, congenital or developmental condition that is progressive in nature and can worsen over time is a disease, not defect.") These facts suggest it is disease. Regardless, there is no evidence of record - lay or medical - indicating that the presbyopia was aggravated in service, a finding needed if it is a disease, or is subject to superimposed disease or injury that developed in service and resulted in increased disability, a finding needed if it is a defect. The criteria for entitlement to service connection for presbyopia are therefore not met. Cataracts A VA examiner first noted that the Veteran had incipient cataracts bilaterally in November 2008, over a year after his discharge from active service. Two VA examiners have addressed the etiology of this condition. In March 2015, one VA examiner was provided a copy of the file for review and asked to provide an opinion on the question of whether any eye disorder is at least as likely as not related, in whole or in part, to the Veteran’s service. The examiner responded unfavorably based on an examination he had conducted in September 2014 and the review of the file. In October 2020, another VA examiner found the cataracts less likely than not related to the Veteran’s service. He based this opinion on the following findings: (a) There is no evidence of cataracts in service; (b) There is no in-service report of an incident or suspected cause of cataracts from service; and (c) Cataracts are an age normal finding and most likely related to natural aging. Despite indicating at his hearing that he would try to do so, the Veteran has not submitted a medical opinion refuting these opinions or otherwise addressing the etiology of his cataracts or any other eye disability not noted above. As the Veteran has no medical training, his assertions linking such an eye disability to service would not be considered competent evidence of a nexus. The facts in this case are complex, requiring knowledge of the nature of multiple eye disabilities. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). Inasmuch as there is no competent evidence of record relating the Veteran’s cataracts or any other eye disability not noted above to his active service, the criteria for entitlement to service connection for such disabilities are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. N. 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.