Citation Nr: 22017403
Decision Date: 03/25/22	Archive Date: 03/25/22

DOCKET NO. 16-00 389
DATE: March 25, 2022

ORDER

Entitlement to service connection for a bilateral eye disability, to include a bilateral cataract disorder, is denied. 

FINDING OF FACT

The evidence persuasively shows that the Veteran's eye condition during service was congenital in origin with no superimposed disability, and the cataracts later in life were age-related and not incurred in or due to service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for a bilateral eye disability, to include a bilateral cataract disorder, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 4.9.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from December 1968 to September 1972 and from March 1979 to December 1989.

This matter is on appeal from a June 2013 decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The case was previously before the Board in August 2018, May 2020, March 2021, and August 2021 when it was remanded for further development.

Cataracts

The Veteran contends that he is entitled to service connection for a bilateral cataract disorder.  He asserted that his eye problem began while he was serving in Vietnam and was aggravated by his military service.

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131. To establish service connection, the evidence must show: (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Refractive errors of the eye are not considered diseases or injuries for which service connection is available, as they are conditions due to anomalies in the shape and conformation of the eye structures and generally of congenital or developmental origin. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. Congenital or developmental defects automatically rebut the presumption of soundness and are considered to have pre-existed service. 38 C.F.R. § 3.303(c); Winn v. Brown, 8 Vet. App. 510, 516 (1996); see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (holding that the presumption of soundness does not apply to congenital defects). However, service connection may be granted for additional disability on top of the underlying refractive error from a superimposed disease or injury during service. See VAOPGCPREC 82-90 (July 18, 1990). 

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 include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include 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. For example, 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 observable symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir. Dec. 17, 2021).

In this case, the Veteran reported during a December 2020 VA examination that he experiences blurry and clouded vision at times. The examiner also noted a diagnosis of pseudophakia. In a June 2012 VA Form 21-4138, Statement in Support of Claim, the Veteran provided credible and competent reports of deteriorated eyesight. Thus, the first element of Shedden is satisfied. 

Further, service treatment records note a myopic astigmatism in December 1978, defective vision in October 1981, and lenticular opacities with eye trouble in January 1989. Thus, the second element of Shedden is satisfied, as well. 

In May 2013, the Veteran was provided with a VA examination in which the examiner stated that there is no evidence of an injury or treatment in the service records that would cause cataracts. She noted that the documented evidence indicates congenital lens changes as well as age-related cataracts. She noted that the Veteran had cataract removal in 2009 with lens implants. The examination report reflects extensive consideration of the Veteran's medical history. However, as noted in the August 2018 remand, the Veteran thereafter provided additional lay statements that his cataracts were related to the lack of eye protection while performing duties as a rifleman and a military policeman in service. Thus, the Board assigns minimal probative value to this opinion. 

In July 2019, the Veteran was provided with an additional VA examination in which the examiner noted a diagnosis of early cataracts in the 1980s with little change for some time that eventually became visually significant in 2009, requiring bilateral cataract removal with insertion of intraocular lens. The clinician provided a physical examination of the Veteran's eyes and noted that the natural lens has been surgically replaced with intraocular lens in both eyes and the cataract has resolved. As explained in the May 2020 remand, the Veteran provided credible and competent lay statements describing deterioration of his vision. Thus, the Board assigns minimal probative value to the extent that it does not address the Veteran's credible and competent reports of deteriorated vision. 

In January 2021, the Veteran was provided with an additional VA examination in which the examiner opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He noted that service treatment records show treatment for an eye condition and that a 1981 medical examination notes defective vision corrected by refractive. He noted that the 1989 separation examination does not note an eye condition but noted that the Veteran reported eye trouble. He noted that a lack of eye protection is less likely to have been a contributing factor to cataracts and that the progression of the condition was normal age-related progression of cataracts. He noted that the opacities found in service are unrelated to the cataracts and do not usually progress to generalized cataracts. He noted that UV or sun exposure can hasten or accelerate the normal age-related process of cataracts progression. This rationale is not entirely responsive to the Veteran's lay testimony, because, as explained above, he has provided lay testimony stating that he did not wear eye protection in service. However, even so, congenital or developmental defects are not considered diseases or injuries for which service-connection may be granted, even if aggravated in service, in the absence of a superimposed disability. 38 C.F.R. § 4.9. As the rationale does not reflect consideration of the Veteran's lay statements, the Board assigns minimal probative value to this opinion.

In June 2021, VA obtained an additional opinion in which the clinician opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He noted that the Veteran had an eye evaluation in 1983 which found the presence of anterior dot-like opacity in each eye which were not known to the Veteran as they did not affect the vision in any way. He noted that they were described as typical congenital lens changes and that any change in the lens is terms cataract although there are many forms. He noted that in this Veteran, they are congenital in original and not originated nor changed by conditions of service. The opinion was noted to be in response to the request for an opinion considering the Veteran's report of lack of eye protection while performing duties as a rifleman and as a military policeman during service. The examiner noted that the cataracts the Veteran had later in life, at the typical age for cataracts to form, were age related and not due to an extension of these congenital lens opacities. He stated that these are clearly of the type that appears at birth. He noted that the congenital, non-functionally significant anterior capsule lens changes were first noted during the 1983 examination and seen on several examinations at later dates with no changes in its character or density or size noted. The examiner stated that congenital cataracts, when small enough as these were, do not affect visual function and almost never progress. They are not altered in any way by conditions of service. As this opinion reflects thorough consideration of the nature and history of the Veteran's condition, the Board assigns a high degree of probative value to this opinion.

While the Veteran has claimed a disability of the eyes that is related to service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to the June 2021 VA opinion of record as the examiner has had medical training, reviewed the Veteran's medical history, and provided a rationale for the negative opinion.

Accordingly, the Board finds that the evidence persuasively shows that the Veteran's eye condition during service was congenital in origin with no superimposed disability, and the cataracts later in life were age-related and not incurred in or due to service. In reaching this conclusion, the Board has considered the benefit-of-the-doubt rule; however, as the evidence is not in approximate balance, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021).

 

 

K. MARENNA

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. H. White, 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.