Citation Nr: 21014662 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 10-28 418 DATE: March 15, 2021 ORDER Entitlement to service connection for a right eye condition, other than cataracts and right dry eye syndrome (shown as congenital macular/retinal anomaly with amblyopia of the right eye, and myopia fundus with lattice degeneration and a degenerative hole of the right eye), is denied. FINDINGS OF FACTS 1. The Veteran’s macular/retinal anomaly with amblyopia of the right eye is a congenital defect, and not subject to service connection. 2. The Veteran’s myopia fundus with lattice degeneration and a degenerative hole of the right eye is a congenital disease, and was not aggravated by service. 3. There is no current, superimposed right eye disability, other than cataracts and dry eye syndrome, which was caused or aggravated by service, to include any disease resulting from the progression of or caused by a congenital defect or disease. CONCLUSION OF LAW The criteria for service connection for a right eye condition, other than cataracts and right dry eye syndrome (shown as congenital macular/retinal anomaly with amblyopia of the right eye, and myopia fundus with lattice degeneration and a degenerative hole of the right eye) are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from April 1967 to April 1969. He was awarded the Vietnam Service Medal and the Vietnam Campaign medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2017, the Board remanded the appeal for additional development. Addendum opinions were obtained in October 2018, June 2020, and October 2020, to provide further rationale for the examiner’s findings. The Board finds the October 2020 addendum opinion to be in substantial compliance with its prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is now returned to the Board for further consideration. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in September 2007. The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. This includes efforts by the RO to ensure an adequate opinion and rationale to fulfill the Board’s remand directive. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends that he was born legally blind in the right eye, and his military service aggravated the condition. Specifically, training with the M-14 rifle and gas masks caused injury and increased disability. Service connection for right eye cataracts, rated 30 percent disabling, and for dry eye syndrome of the right eye, rated 0 percent disabling, has been previously established. The Veteran has additionally been diagnosed with congenital macular/retinal anomaly with amblyopia of the right eye, and myopia fundus with lattice degeneration and a degenerative hole of the right eye. A March 2013 VA examiner sated that these conditions represented congenital “conditions.” In July 2017, the Board remanded the matter for a determination of whether “conditions” disease or defects. Congenital or developmental defects are not considered “diseases or injuries” within the meaning of applicable legislation and do not constitute disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9; See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45, 711) (Oct. 30, 1990). However, such a defect can still be subject to superimposed disease or injury. If such superimposed disease or injury does occur during service, service connection may be warranted for the resulting disability. Id. The examiner stated in October 2018 that macular/retinal anomaly with amblyopia of the right eye was a congenital defect, and that myopia fundus with lattice degeneration and a degenerative hole of the right eye was a congenital disease. The defect was not aggravated or marked by a superimposed condition, and the disease, which was clearly present at entry, was clearly not aggravated beyond the natural progression. The same was true for the disease. She repeated her conclusions in June 2020, and specifically referenced M-14 training and gas mask training. In October 2020, the examiner clarified her rationale for opining as she had. She stated that service treatment records showed findings of vision impairment soon after entry which demonstrated that vision was already “very poor and the large angle estropia” had already formed. Current medical knowledge, cited from the American Optometric Association, the examiner noted that such represented a stable vision loss. Additionally, she reported that the disease, lattice degeneration and a degenerative hole, were common findings with high myopia. In other words, the disability picture presented was as expected in the normal course of the disability. The other evidence of record corroborates the VA examiner’s opinions and rationales. Service treatment records show right eye blindness (20/800 vision) at entry. While the Veteran did report eye problems, including physical trauma, to the eye during service, testing of vision remained stable, as stated by the examiner. This is sufficient to establish the pre-existence of the condition, be it by notation on examination at entry or through clear and unmistakable evidence, as discussed by the VA examiner. Accordingly, the Veteran is not sound at entry by any measure. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Further, as one part of the pre-existing vision impairment is a congenital defect, it is not subject to service connection. As to that part of the impairment due to congenital disease, such is clearly and unmistakably shown to have pre-existed service and to have not been aggravated thereby. Service connection for either condition is not warranted. To be clear, the Veteran did sustain trauma to the right eye in service and has been service-connected for cataracts and dry eye syndrome that resulted from that trauma. His current overall 30 percent rating represents blindness in the service-connected right eye and 20/40 (corrected) vision in the left eye, consistent with 38 C.F.R. § 4.79, diagnostic codes 6027 and 6064. However, there is no other diagnosed condition, to include congenital macular/retinal anomaly with amblyopia of the right eye, and myopia fundus with lattice degeneration and a degenerative hole of the right eye, which is caused or aggravated by service. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nolan, Shane D. 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.