Citation Nr: 22010664 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 17-57 425 DATE: February 24, 2022 REMANDED Service connection for a right eye condition, to include hypermetropia, astigmatism, and anisometropia, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 2010 until his honorable discharge in May 2017, with service in Kuwait. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 decision by a Regional Office of the United States Department of Veterans Affairs (VA). In October 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. 1. Service connection for a right eye condition, to include hypermetropia, astigmatism, and anisometropia, is remanded. According to a February 2017 VA-contracted examination, the Veteran has been diagnosed with hypermetropia, astigmatism, and anisometropia in his right eye. The Veteran says that these eye conditions resulted from LASIK surgery he had while in the military. His military records document LASIK surgery occurred in April 2015 on both eyes. According to relevant operative notes, "Multiple attempts were made, with suction losses prior to creating the flap. On one attempt, suction was lost while creating the flap, during the raster pattern. . . . Flap OD was lifted & reflected superiorly with special spatula. The flap was difficult to lift, requiring excessive manipulation." The Veteran suffered post-operative right eye complications that resulted in blurry vision. According to an August 2015 in-service medical record, an ophthalmologist stated, Procedure resulted in a dramatically flat area in superior corneal and significant astigmatism. . . . Refractive surprise post LASIK OD [(right eye)]. Unclear if double cut flap resulted in missing lenticule/asymmetric flap or if stro[m]al bed is irregular. Might consider lifting flap and measuring flap thickness and RSB thickness at multiple spots. Even consider amputating flap if it is cause of corneal irregularity. The February 2017 VA-contracted examiner did not offer an opinion on the etiology of the Veteran's current right eye conditions. An addendum opinion was requested by the VA Regional Office, but the request was cancelled because each of the Veteran's right eye conditions are considered refractive errors, and, generally, refractive errors of the eyes are congenital or developmental defects and not diseases or injuries for VA compensation purposes. See 38 C.F.R. §§ 3.303(c); 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Still, service connection is warranted if there is evidence of an additional disability due to aggravation during service of the congenital defect by a superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. In other words, absent a superimposed disease or injury, service connection may not be granted for refractive error of the eyes, even if visual acuity decreased in service. The VA Regional Office obtained an addendum opinion in October 2017 on three questions: (a) whether it is at least as likely as not that any refractive error that preexisted service (or any other current congenital or developmental eye defect) was aggravated (worsened beyond the natural progression) by a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental refractive error defect; (b) whether any currently diagnosed eye disorder is a "usual effect" of LASIK surgery; (c) if hypermetropia (or any other current congenital or developmental eye defect) is not a usual effect of LASIK surgery, is it at least as likely as not that the current hypermetropia was caused or aggravated by service. The examiner opined, "It is not possible to conclude whether the effects of surgery [are] related to the current hypermetropia . . . . LASIK surgery or PRK surgery produce[s] an unpredictable results post-op as time goes on." "The myopia being aggravated as a refractive error depends upon heredity, previous trauma of the eye, and any other factors such as poor healing post-op which is a known complication of the procedure of LASIK." The examiner offered additional information, but the Board finds the opinions and the rationale, as a whole, are inadequate. At no point did the examiner address the fundamental questions of (1) whether the Veteran's current right eye conditions, without regard as to whether VA would consider such a disability today, existed prior to service; (2) if so, whether they were aggravated beyond their normal progression due to the LASIK surgery, and (3) if they did not exist prior to service, whether, but for the complications associated with the Veteran's right eye LASIK surgery, his right eye conditions would not have occurred? Accordingly, the matter is REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriately qualified ophthalmologist, other than the October 2017 examiner, to provide an opinion addressing the onset and etiology of the Veteran's right eye conditions. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding: (a.) Whether it is at least as likely as not (50 percent probability or more) any of the Veteran's right eye conditions, to include hypermetropia, astigmatism, and anisometropia, preexisted his active military service? Please explain your conclusion. (b.) If any of the Veteran's right eye conditions DID preexist service, whether it is at least as likely as not (50 percent probability or more) such eye condition(s) permanently worsened during active military service to any degree? For this opinion, the examiner is informed that it is not necessary that the Veteran's LASIK surgery caused the worsening, only that permanent worsening occurred in service. (c.) If any of the Veteran's right eye conditions DID preexist service and did permanently worsen during active military service, whether, to a degree of clear and unmistakable medical certainty, the worsening of such eye condition(s) was due to the natural progress of the disease? Please explain your conclusion. (d.) If any of the Veteran's right eye conditions DID NOT preexist service, whether it is at least as likely as not (50 percent probability or more) such eye condition(s) had its onset in or is otherwise etiologically related to the Veteran's LASIK surgery in service, to include the complications associated with his LASIK surgery? In rending his or her opinions, the examiner should consider and, to the extent relevant, address the following, in addition to any other relevant evidence: (a.) The Veteran's April 2010 Enlistment Examination and Report of Medical History. (b.) The Veteran's November 2016 Separation Examination and Report of Medical History. (c.) The in-service medical records from April 2015 documenting the Veteran's LASIK surgery, particularly the surgical procedural notes that recorded multiple instances of lost suction when operating on the Veteran's right eye, and the pre- and post-operative right eye conditions, to include astigmatism, refractive error, and myopia. (d.) June 2015 in-service medical records documenting post-operative "Refractive surprise secondary to malformed flap OD." (e.) August 2015 in-service medical records documenting an ophthalmologist's comments: "Refractive surprise post LASIK OD. Unclear if double cut flap resulted in missing lenticule/asymmetric flap or if stro[m]al bed is irregular. Might consider lifting flap and measuring flap thickness and RSB thickness at multiple spots. Even consider amputating flap if it is cause of corneal irregularity." The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his eye conditions, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of an eye condition due to LASIK surgery. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. (Continued on the next page) If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, Associate 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.