Citation Nr: 1743981	
Decision Date: 09/15/17    Archive Date: 10/10/17

DOCKET NO.  10-06 980	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for a bilateral eye disability, to include bilateral birdshot chorioretinopathy (also diagnosed as posterior uveitis/chorioretinopathy involving the macula and periphery and cancer associated retinopathy (CAR)).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel
INTRODUCTION

The Veteran served on active duty from, from November 1990 to June 1991, from January 2004 to May 2005, and from October 2005 to February 2006, with additional reserve service, including a period of active duty training from November 1979 to March 1980 and full time training duty from April 1982 to August 1982.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

The Veteran and his wife testified before a Veterans Law Judge (VLJ) at a hearing in December 2011.  The VLJ is no longer with the Board, and in May 2017, the Veteran was notified that he is entitled to another hearing.  See 38 U.S.C.A. § 7107 (c) (West 2014).  The Veteran declined the opportunity.  A transcript of December 2011 hearing is of record.

In July 2012, June 2014, and January 2016, the appeal was remanded to the RO for further development and procedural action, which has been accomplished.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  It now returns to the Board for appellate review.

Since the last adjudication of the appeal by the RO, additional VA treatment notes have been added to the claims file.  The Veteran has not waived RO review of this evidence; however to the extent this evidence refers to the Veteran's eye disability, it is pertinent to current treatment and severity and not to the severity of the Veteran's eye disability in and around his military service, which is the question upon which the case turns.  Therefore, the Board determines that a remand is not necessary for RO consideration of this evidence.

The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS).   


FINDING OF FACT

A bilateral eye disability, to include bilateral birdshot chorioretinopathy (also diagnosed as posterior uveitis/chorioretinopathy involving the macula and periphery and CAR), clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated beyond normal progression of the disease by service.


CONCLUSION OF LAW

The criteria for service connection for a bilateral eye disability, to include bilateral birdshot chorioretinopathy (also diagnosed as posterior uveitis/chorioretinopathy involving the macula and periphery and CAR) have not been met.  38 U.S.C.A. 
§§ 1101, 1110, 1112, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 

The record reflects that all available pertinent treatment records, to include service treatment records and available post-service VA and private treatment records, have been obtained.  The Veteran has not identified any outstanding, existing evidence that could be obtained to substantiate the claim.  The Board is also unaware of any such evidence.  Moreover, the Veteran has been provided appropriate VA examination.  Accordingly, the Board will address the merits of the claim.

II. Legal Criteria

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303 (d).

For VA compensation purposes, service includes active duty, any period of active duty training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury, incurred or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); § 38 C.F.R. § 3.6.  Active duty is full time duty in the Armed Forces other than ACDUTRA. Id.  With regard to National Guard and Reserve service, ACDUTRA is full time duty performed under 32 U.S.C. §§ 316, 502, 503, 504, or 505 or the prior corresponding provisions of law.  Id.  INACDUTRA is duty other than full-time duty performed under the same provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505 or the prior corresponding provisions of law.  Id.  

At the time of a service entrance examination, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111 (West 2014).  Only such conditions as are recorded in examination reports are considered as 'noted.' 38 C.F.R. § 3.304 (b) (2017).  When determining whether a defect, infirmity, or disorder is noted' at entrance into service, supporting medical evidence is needed.  Crowe v. Brown, 7 Vet. App. 238 (1994).

A preexisting injury or disease will be considered to have been aggravated by service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 C.F.R. § 3.306 (a). 

For wartime service or peacetime service after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation.  38 C.F.R. § 3.306 (b).

"Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The United States Court of Appeals for Veterans Claims (Court) has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 




III. Analysis

In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran is in receipt of service-connected benefits for bilateral cataracts; however, he has also claimed entitlement to service connection for a disability of the eyes other than cataracts.  An ophthalmological treatment note dated in February 2005 reports that the Veteran developed posterior uveitis with white chorioretinal scars in both eyes in 2001 and that the Veteran's visual acuity had deteriorated.  In November 2003, an ophthalmological examination revealed persistent posterior segment inflammation with extensive choroiditis.  VA treatment records dated in 2005 show that the Veteran was treated for what was suspected to be CAR in each eye, but vitreous biopsies proved to be negative at that time.  In December 2006, the Veteran visited a VA eye clinic with complaints of worsening, cloudy vision with floaters and flashes common.  In March 2007, an ophthalmology consult yielded the conclusion that the Veteran had chorioretinopathy involving the macula and periphery of unknown cause; CAR was ruled out.  In November 2010, a retinal specialist diagnosed birdshot chorioretinopathy.

Service treatment records do not show that the Veteran had a visual disability upon entrance into this period of service in January 2004.  Neither a November 2002 annual medical certificate nor a February 2003 periodic examination document any complaint, treatment, or diagnosis regarding an eye disability.  Service treatment records in the claims file as scanned include a copy of a letter between the Veteran's physicians dated in December 2003, but even if the letter was associated with the Veteran's service treatment records at the time of these examinations, his birdshot chorioretinopathy was not noted at the clinical examinations themselves.  Nevertheless, even if the Veteran's eye disability was not "noted" at examination prior to his period of active duty beginning in January 2004, the Board determines that the above evidence is sufficient to clearly and unmistakably establish that the birdshot chorioretinopathy was present prior to the Veteran's January 2004.
The Veteran was afforded a VA examination for his eye claim in September 2012 and the examiner explained in detail how the Veteran's diagnoses of posterior uveitis, CAR, and birdshot chorioretinopathy are differential diagnoses assigned over time to the eye disability manifested by the Veteran, not discrete disabilities of the eyes.  Birdshot chorioretinopathy is the presumed diagnosis.  The examiner then opined that it is not at least as likely as not that the Veteran's birdshot chorioretinopathy manifested during the Veteran's military service prior to the his service beginning in January 2004.  In his regard, the examiner noted that the Veteran's service treatment records show no evidence that the Veteran was diagnosed with an eye disability, including chorioretinopathy, during his periods of service from 1979 to 1980 and 1990 to 1991. 

However, with respect to the period of service from January 2004 to May 2005, the September 2012 VA examiner found that the Veteran's eye disability clearly worsened during that time period, but the examiner also indicated that the increase in severity was due to the natural progression of the disability.  The examiner stated that the medical literature is clear that the progressive retinal vascular attenuation, chorioretinal atrophy, and macular edema of birdshot chorioretinopathy can lead to progressive and permanent vision loss.  As for the period of service from October 2005 to February 2006, the examiner reported that an opinion could not be provided with certainty as to any increase in severity of the Veteran's eye disability as there was a gap in treatment notes from May 2005 to January 2007, at which point the disability had certainly worsened.  Therefore, the examiner found that a comment could not be rendered without resorting to mere speculation.  

In light of the limitations of the opinions provided in September 2012 with regard to aggravation of the Veteran's eye disability, the Board remanded the appeal in January 2016 for another opinion.  The opinion, received in March 2016,  states that birdshot chorioretinopathy is a very rare disability, diagnosed in less than one to two percent of patients and that it is characterized by exacerbations and remissions, leading to legal blindness in 9.8 percent of patients.  The examiner then opined that the Veteran's eye disability worsened during the January 2004 to May 2005 period of service, but that the progression was clearly and unmistakably a result of the natural course of the disease.  In support of this opinion, the examiner noted that there was no evidence of any other eye disabilities causing the disability or of inappropriate treatments, or any other external factors, that could have worsened the disease.  The examiner averred that without evidence of exogenous factors contributing to or altering the disease process during the time frame in question, the only conclusion is that the Veteran's eye disease worsened according to is natural progression.  For these same reasons, the examiner opined that the Veteran's eye disability worsened according to its normal progression during the period of service from October 2005 to February 2006.

The Veteran has offered not contradictory medical opinions.  Thus, the only evidence in support of a relationship between his bilateral birdshot chorioretinopathy and his military are his own statements.  The Veteran is certainly permitted to speak to his perception of his visual acuity and the progression of its loss, but the cause of the disability and the reason for any increase in severity are determinations that require specialized knowledge, as exemplified by the uncertainty of his treatment providers as to the nature of the disability.  Thus, the Board finds that the Veteran's bilateral birdshot chorioretinopathy clearly and unmistakably preexisted his periods of  service from January 2004 to May 2005 and from October 2005 to February 2006 and the evidence is also clear and unmistakable that it was not aggravated beyond normal progression during either of those periods of service.  Service connection for bilateral birdshot chorioretinopathy is denied. 



ORDER

Entitlement to service connection for a bilateral eye disability, to include bilateral birdshot chorioretinopathy (also diagnosed as posterior uveitis/chorioretinopathy involving the macula and periphery and CAR) is denied.




______________________________________________
M. Tenner
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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