Citation Nr: 22015709 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 18-36 512 DATE: March 18, 2022 ORDER Entitlement to service connection for bilateral dry eye syndrome is granted. Entitlement to service connection for left eye cataract is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the competent evidence of record reasonably supports a finding that bilateral dry eye syndrome had its onset in service. 2. Resolving reasonable doubt in the Veteran's favor, the competent evidence of record reasonably supports a finding that left eye cataract had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral dry eye syndrome have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for left eye cataract have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from March 1985 to January 1989, and in the Navy from November 1997 to January 2014. This matter comes before the Board of Veterans' Appeals (Board) from a September 2015 rating decision, which following the receipt of not previously available service treatment records, confirmed and continued a prior final June 2014 rating denying service connection for the claimed eye disorders, per the exception to overcoming finality when service department records are involved. By regulation, VA will reconsider a claim after a final decision if it receives "relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim." 38 C.F.R. § 3.156(c)(1). In September 2015, the Veteran filed a notice of disagreement within one year of receiving the rating notice in September 2015. A statement of the case (SOC) was issued in March 2018, but due to an addressing error made by the RO, the Veteran did not receive the SOC until after the expiration of the 60 days after issuance. Thus his April 2018 VA Form I-9 was accepted as timely. He testified before the undersigned Veterans Law Judge at a hearing held in October 2021. At his hearing the Veteran clarified that the eye disorders he was appealing were the dry eye syndrome of the bilateral eyes and the cataract impacting the left eye. Although he has also raised the issue of cataracts affecting the right eye including in this hearing, the ROs adjudications of the matter on appeal pertain to a left eye disorder including cataracts, classified as residuals of left eye injury. Thus, the claimed right eye cataract is not before the Board, and the eye disorders subject to this appeal are limited to those of the dry eye syndrome of the bilateral eyes and a left eye disorder involving cataracts. If the Veteran wishes to claim service connection for any other eye disorder, he will need to file a new claim. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303 (d). The law provides that a veteran is presumed to be in sound condition except for defects noted when examined and accepted for service; when defects are noted upon entry the presumption of soundness does not apply and the presumption of aggravation is for application. See Gilbert v. Shinseki, 26 Vet. App. 49 (2012). When there is a pre-existing disease or injury and an increase in severity in service, the presumption is that the disease will be considered to have been aggravated by active service, unless there is a specific finding that the increase in disability is due to its natural progression. 38 U.S.C. § 1153 (West 2014); 38 C.F.R. § 3.306 (a), (b) (2015). See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). In other words, when the disability increases in severity in service, the burden is on VA to rebut the presumption by showing by clear and unmistakable evidence that any increase during service was due to the natural progression of the disease or injury. 38 C.F.R. § 3.306 (b); Wagner v. Principi, 370 F.3d at 1096. Mere temporary or intermittent flare-ups of a preexisting injury or disease are insufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Additionally, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153 ; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Service connection may be also established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. §3.310 (a) (2015). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38C.F.R. §3.310 (a) (2015); Allen v. Brown, 7Vet. App.439 (1995). A service connection claim must be accompanied by evidence establishing that the claimant currently has the claimed disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3Vet. App.223, 225 (1992). The current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21Vet. App.319 (2007). See also Romanowsky v. Shinseki, 26Vet. App.303 (2013) (to the effect that where a disease or disability is diagnosed proximate to the current appeal period, but not currently, the Board is required to determine whether the earlier diagnosis was inaccurate, or the previously diagnosed condition had gone into remission. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38C.F.R. §3.159 (a). Factual Background for Claimed Eye Disorders The Veteran contends that service connection is warranted for a dry eye syndrome and a left eye cataract. The Board shall address the history of these eye disorders together. At his October 2021 hearing he reported that he did not have dry eye syndrome or cataracts when he entered the military, pointing out that he had two periods of service. He also related the history of being struck in the eye with a pinata stick in the period after his first enlistment ended and prior to his second enlistment. He testified that he recovered after that incident and had normal interocular pressures (IOP) when he entered the Navy (on his second enlistment), but then was given eye drops to control the IOP when it began to increase. It was eventually diagnosed as glaucoma during his Navy service. He testified that dry eye syndrome was one of the possible side effects of the eye drops to control eye pressure, which he was given while in the Navy. He confirmed that the medication was only put in his left eye. He testified that he was diagnosed with dry eye syndrome in both his eyes while in the Navy, and suggested that because of this the dry eye syndrome diagnosed in service was probably not as likely due to the eye drops that were only used in the left eye. The hearing testimony further confirmed that he was granted a waiver to enter the Navy, which noted blunt trauma injury to the left eye with likelihood of glaucoma, and noted his lengthy service from 1997 to 2014. As for the left eye cataract, he testified that although the cataract was classified as traumatic in nature, it was not manifested for a long time after the left eye injury, and was diagnosed during his Naval service. He also indicated he had bilateral cataracts diagnosed in service. He confirmed that he was claiming service connection for dry eye syndrome, and cataracts but not glaucoma. He confirmed receiving ongoing ophthalmological treatment at the VA for his eye problems. Transcript pg. 3-10. The Veteran does not allege, and the evidence does not show any evidence of dry eye syndrome during his first enlistment. A review of the record also reveals no evidence of a formal diagnosis of dry eye syndrome or cataracts prior to service. The records during the period between his first and second enlistments show that he was treated for an injury to his left eye after being struck by pinata stick in June 1993 with a hyphema, and traumatic iritis initially diagnosed. Followup records in June and July 1993 revealed a small hyphema and angle recession of the left eye, with assessments of increased IOP, mild persistent inflammation and angle recession. None of the follow up records showed findings or diagnosis of dry eye syndrome or cataracts prior to his second enlistment. See 16 pg. Medical Treatment Records Government Facility received 12/11/13. In October 1996 the Veteran underwent a Navy Commission examination. He had a history of trauma left eye, recess, with no glaucoma angle recession noted in the left eye. His eyes were described as normal on examination with vision for the right and left eyes 20/200 corrected to 20/20. He was deemed eligible for commission. His report of medical history for commission examination noted the history of a hyphema in the left eye due to being struck. Records revealed trauma to the left eye with open angle recession glaucoma in 1993. He denied problems at that time. A Centcom medical waiver request noted a history of a condition of blunt trauma left eye (OS) times 1995 of preservice date of onset. He was treated with steroids and antibiotics. He also started Xalatan in the left eye. Prognosis was excellent and there were no limitations. He was deemed fully able to deploy with no limitations. The records from the late 1990s through the mid- 2000s are noted to address other eye issues such as glaucoma and left eye history of blunt trauma with hyphema and angle recession, without significant findings regarding cataracts and dry eye syndrome. Dry eye syndrome was first detailed in a March 13, 2008 optometry record, which noted worsening vision for both distant and nearby objects slow progressive change in vision distance and near. The diagnostic history was significant for no cataract. He was diagnosed with dry eye syndrome on both eyes along with other diagnoses of glaucoma, refractive error/myopia, astigmatism, and presbyopia. Plans were made to start the Veteran on artificial tears. In March 2009 followup he again was diagnosed with dry eye syndrome in both eyes and again was noted to have no cataract. On March 12, 2012 the Veteran was seen in optometry with a diagnosis that now included cataract traumatic left eye, as well as dry eye syndrome both eyes mild, not affecting visual acuity at this time. He also was diagnosed with borderline glaucoma, refractive error/myopia, astigmatism, and presbyopia. In June 2013, he again was diagnosed with dry eye syndrome both eyes and cataract traumatic, left eye, in addition to other diagnoses of the eye. In September 2013 a report of medical assessment noted chronic issues including cataracts with glaucoma and routine ophthalmology followup. He was found to be relatively fit and healthy with a few minor acute issues including ocular tear stasis with prescriptions of Restasis, Xanthan, Carbomethyl, cellulose and Minocin. He was also assessed with cataracts with glaucoma. Other records from September 2013 indicated he was seen for retirement physical with a history that included cataracts. An October 2013 optometry clinic diagnosed him with dry eye syndrome both eyes and blepharitis. In March 2014 (entered in the claims folder in April 2014) the Veteran underwent a VA examination. Among the diagnoses were cataract, with a date of diagnosis in 2012. Other diagnoses included glaucoma. Although not formally diagnosed, symptoms of dry eye were noted. A history of left eye blunt trauma before his service and possible angle recession was noted. Following examination, the Veteran was assessed with cataracts and other lens condition both eyes. Also diagnosed was open angle glaucoma in the left eye only. No decrease in visual acuity or other visual impairment was noted. In May 2014 (entered in the claims file in June 2014) the examiner gave an opinion addressing the etiology of the glaucoma as a result of the pre-service eye injury. The opinion also speculated that the pre-service left eye injury may have resulted in a left cataract and certainly caused glaucoma of the left eye. As for the dry spots on the left eye, the examiner opined that these are probably related to the toxicity of the eye drops which are treating a pre-service injury so in this examiner's opinion are not related to any of the current diagnoses. In September 2015 an addendum opinion was obtained which after review of medical records, the chart suggests that the veteran has been diagnosed with dry eye and glaucoma suspect of the right eye. Although these diagnoses may have developed during active duty, these were unlikely to be caused by injury , event, or illness while service. The Board notes that this opinion referenced the incorrect eye. VA treatment records include records of ongoing treatment for eye problems by ophthalmology in April 2016 and June 2016 for dry eye syndrome and cataracts. In the June 2016 records the eye specialist noted that the dry eye syndrome was mostly secondary to meibomitis. Delayed focusing and variable focus of vision was secondary to dry eye condition which developed during this military service. 1. Dry eye syndrome, bilateral The Board concludes that the Veteran has a current disability that as likely as not had its onset during a period of active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Initially, the Board notes that although a pre-existing left eye injury was noted after his first enlistment and prior to his entering service in November 1997, the evidence does not show that the Veteran was diagnosed with dry eye syndrome following this injury or any time prior to his enlistment. As there was no dry eye syndrome prior to this enlistment, it is not subject to consideration of a preexisting disability, including analysis under the presumption of soundness, even with consideration of the left eye injury prior to service. The question remains whether it was incurred during active duty. As noted above, the evidence shows that he was formally diagnosed with dry eye syndrome, and was prescribed medication to treat this disorder on March 13, 2008 which is during his period of active service. Subsequent records confirmed this ongoing diagnosis. Although the March 2014 VA examination and the opinions provided by the VA examinations in May 2014 and September 2015 did not adequately address the dry eye syndrome, it is immaterial to this matter where the evidence clearly shows onset of the dry eye syndrome began in service and has continued thereafter. Further the VA medical provider in June 2016 confirmed the ongoing diagnosis of this dry eye syndrome of in-service onset. Additionally the Veteran provided lay testimony of continued symptoms and treatment for dry eye syndrome after service. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Accordingly, the Board finds that service connection for dry eye syndrome, bilateral eyes, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Left eye cataract The Board concludes that the Veteran has a current disability that as likely as not had its onset during a period of active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Initially, the Board notes that although a pre-existing left eye injury was indicated after his first enlistment and prior to his entering service in November 1997, the evidence does not show that he was diagnosed with a left eye cataract at the time of the injury or any time prior to entrance into service in November 1997. As there was no left eye cataract prior to this enlistment, it is not subject to consideration of a preexisting disability, including analysis under the presumption of soundness, even with consideration of the left eye injury prior to service. The question remains whether a left eye cataract was incurred during active duty. As noted above, the evidence shows a formal diagnosed of a left eye cataract on March 12, 2012, which is during his period of active service. Subsequent records confirmed this ongoing diagnosis. Although the March 2014 VA examination and the opinions provided by the VA examinations in May 2014 and September 2015 did not adequately address the etiology of the left eye cataract, it is immaterial to this matter where the evidence clearly shows onset of the left eye cataract began in service and has continued thereafter. Additionally, the Veteran provided lay testimony of continued symptoms and treatment for cataracts after service. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). (Continued on the next page) Accordingly, the Board finds that service connection for left eye cataract, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Eckart 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.