Need help with Pigment Dispersion and other eye conditions denial/appeal

[Wendy Ramirez]

Has anyone won a pigment dispersion or macular degeneration case that can assist me in filing an appeal?

I was just denied for this claim on 10/26/19.  I do not have any new records to provide. I am waiting to pick up my C&P exam. I provided 3 years of STRs for these conditions, 5 years of DOD dependent military treatment records, 15 years of post service treatment records, a buddy statement, a nexus letter and a DBQ. The only thing that was listed at MEPS entrance exam in 1994 was vision defect correct with glasses. The first year of service in 1995, second year in 1996 did not show any of these conditions. It wasn't until 1997 while deployed to Bosnia that I started having occasional double vision, photo-sensitivity, frequent dry eyes, tearing, spikes, halos, floaters and night vision issues. When I returned to Germany, I had an eye exam where I was diagnosed with pigment dispersion syndrome, bilateral acute iris transillumination, grade 2 Krukenberg's spindles, macular disease and cystoid macular edema. I was followed every month for progression, then every 6-mo, then to every  year where I also received new glasses or contacts.

Since the denial (below) states that my conditions are congenital defects, am I wrong to think that these conditions should have been detected pre-enlistment, at enlistment and at every yearly eye exam up until 1997?  Then, there would be reason to believe that the issues would have progressed or appeared to finally be seen on an eye exam 3 years later, while in service. It is my understanding from reading the CFRs that if it is a "defect" then there would be no changes or progression of issues/symptoms, therefore no compensation. If it is a disease, there would be progression or symptoms and can be compensated. If the disease was found during military service, then it can be compensated.  

Here are the details from my denial letter:

1) Service connection for bilateral eye condition is denied (claimed as pigment dispersion syndrome, bilateral acute iris transillumination, grade 2 Krukenberg's spindles, retinal condition to include scars, atrophy and irregularities, vision problem and macular disease

The current claim for bilateral eye condition and conditions identified as pigment dispersion syndrome, bilateral acute iris transillumination, grade 2 krukenburg's spindles, retinal condition to include scar, atrophy and irregularities, vision problem, and macular disease are considered congenital or developmental defects which are unrelated to military service and not subject to service connection. (38 CFR 3.303, CFR 4.9)

Your conditions are considered congenital or developmental defects, which are unrelated to military service and are not aggravated by it. Additionally refractive errors are due to anomalies in the shape and conformation of the eye structures, and generally of congenital or developmental origin. Defects of form of structure of the eye that are congenital or developmental origin may not be considered disabilities or service connected on the basis of incurrence or aggravation beyond natural progress during service. The fact that a Veteran was supplied with glasses for correcting refractive errors (such as astigmatism, myopia, hyperopia and presbyopia) is not, in itself considered indicative of aggravation by service that would warrant compensation (38 CFR 3.303, 38 CFR 4.9).

Therefore, service connection is denied.

Favorable findings identified in this decision:

Findings of pigment dispersion syndrome, macular disease, and cystoid macular edema are noted in service treatment records.

Your private treatment records and VA examination show treatment and diagnosis of pigment dispersion syndrome, dry macular degeneration, lattice degeneration and esophoria.

Your service treatment records show findings of pigment dispersion syndrome, macular disease and cystoid macular edema and treatment for conjunctivitis.

2) Service connection for glaucoma, bilateral is denied

They fail to mention that these conditions were also found in my STRs (not all issues claimed and in records are congenital):

bilateral acute iris transillumination, congenital opacities, grade 2 Krukenberg's spindles (which progressed to grade 3+ in records) , eye strain, problems with peripheral vision, headaches, blurred vision, drusen,  macular DISEASE, peri-macular pigmentary DISEASE, pigmentary keratitis, macular retinal pigment epithelium (RPE) etiology unknown, macular mottling, congenital cataracts and their "diagnosis" of conjunctivitis that was actually diagnosed later on by a civilian as lagophthalmos.

What should I provide in my appeal? Can I provide court cases where the claim for the conditions were won?

Service connection is available for congenital diseases, but not defects, that are aggravated in service.  Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993).  In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness.  Quirin, 22 Vet. App. at 394-97.  It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted, and if so whether there was aggravation during service.  Id. at 395

In this regard, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of 38 U.S.C.A. §§ 1110 and 1111.  See 38 C.F.R. § 3.303(c); see also Quirin at 390 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply").

For purposes of determining whether a disorder is a congenital defect or a familiar disease, VA interprets the term "disease" in 38 U.S.C. §§ 310, 331, and the term "defects" in 38 C.F.R. § 3.303(c), as being mutually exclusive.  "Disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown.  See VAOPGCPREC 82-90 (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 385 (26th Ed. 1974)).  On the other hand, the term "defect," viewed in the context of 38 C.F.R. § 3.303(c), is defined as a structural or inherent abnormality or conditions which are more or less stationary in nature.  As noted in VAOPGCPREC 82-90, a Federal court, in drawing a distinction between "disease" and "defect," indicated that disease referred to a condition considered capable of improving or deteriorating, whereas defect referred to a condition not considered capable of improving or deteriorating.  See Durham v. United States, 214 F.2d 862, 875 (D.C. Cir. 1954); see also United States v. Shorter, 343 A.2d 569, 572 (D.C. 1975).

If it is determined during service that a veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service.  That is, the presumption of soundness still applies to congenital diseases that are not noted at entry.  Quirin at 396-97.  VA must then show by clear and unmistakable evidence that the congenital disease preexisted service and was not aggravated thereby in order to rebut the presumption of soundness.  Monroe v. Brown, 4 Vet. App. 513, 515 (1993).  VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence.  Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  VA's Office of General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303(c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service.  See VAOPGCPREC 67-90.

===============

The C&P Director referred to General Counsel Opinion (OGC 82- 90) dated on July 18, 1990, which held that service connection may be granted for diseases of congenital, developmental, or familial origin provided that the evidence as a whole establishes that the condition was incurred in or aggravated during service.

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

===============

The veteran’s pigmentary dispersion syndrome with pigmentary 
glaucoma is currently rated as 10 percent disabling, the 
minimum rating allowed under 38 U.S.C.A. § 4.84a, Diagnostic 
Code 6013 (for simple, primary, noncongestive glaucoma).  
Under this provision, the disability may be given a higher 
rating based on impairment due to related loss of visual 
acuity (Diagnostic Codes 6061-6079) or related field loss 
(Diagnostic Code 6080). 

=====================

A bilateral eye disorder, diagnosed as pigment dispersion 
syndrome, was incurred by veteran during active military 
service, and service connection for the manifestations of 
that condition, to include increased intraocular pressure, is 
warranted.  38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. 
§§ 3.303, 4.9 (1996).

===================

Any help is greatly appreciated.

[broncovet]

Its probably going to take an Independent Medical opinion, or Independent medical exam for you to get SC.  

You need a "medical opinion" that YOUR conditions are not congenital, but rather were caused by or aggravated by an event(s) in military service.  

Absent said opinion, you will llkely be denied again.  With this opinion, along with a current diagnosis and "in service event or aggravation" from military service, you should get SC.  

You need to file a NOD.  I suggest you file a nod, then get an IMO.  You could try HLR, but I think it will take an IMO.  (maybe not, tho).  

[Wendy Ramirez]

2 minutes ago, broncovet said:

Its probably going to take an Independent Medical opinion, or Independent medical exam for you to get SC.  

You need a "medical opinion" that YOUR conditions are not congenital, but rather were caused by or aggravated by an event(s) in military service.  

Absent said opinion, you will llkely be denied again.  With this opinion, along with a current diagnosis and "in service event or aggravation" from military service, you should get SC.  

You need to file a NOD.  I suggest you file a nod, then get an IMO.  You could try HLR, but I think it will take an IMO.  (maybe not, tho).  

broncovet, I had an IMO, had them fill out the DBQ and provide a nexus letter. The nexus letter specified which conditions were congenital and which were not. The Dr even stated that although there were conditions that were congenital in nature, from the reviewing my STRs the conditions did not manifest themselves until they were diagnosed 3 years after joining the military. I hoped that would have been enough evidence to win. I do plan on filing a NOD. I am just not sure how to attack it since I do not have any additional evidence to provide.

[broncovet]

If you dont have additional evidence then use the HLR.  With HLR, you are not allowed to submit new evidence.  You are just asking for a more senior reviewer to look at it again.  

Or, you can skip the HLR and appeal directly to BVA.  

Your doctor needs to be familair with VA to write a good IMO that works with VA.  For example:

1.  Your doctor needs to submit his CV, proving he is competetent to opine on your conditions.  If he has a PHd in basketball athletics, his opinion on eye disorders is not competent.  He needs to have medical training and experience in eye disorders for his opinon to mean anything. 

2.  The doctor needs to state, "he reviewed your records".  A doctors opinion that has not reviewed your records is useless to VA.  

3.  He needs to state it in a format vA understands.  That is, "in my professional opinion (the Veterans) eye conditions are not congenital, but rather at least as likely as not caused by (an event in military service).  He needs to supply a medical rationale as to why he makes said opinion.  If he did a genetic testing on you, then so state.  If your parents did not have the disorder, then the doctor should so state.  

    In short, there are IMO's and there are IMO's that work and win benefits.  They are not always the same.  

[broncovet]

If you dont have additional evidence then use the HLR.  With HLR, you are not allowed to submit new evidence.  You are just asking for a more senior reviewer to look at it again.  

Or, you can skip the HLR and appeal directly to BVA.  

Your doctor needs to be familair with VA to write a good IMO that works with VA.  For example:

1.  Your doctor needs to submit his CV, proving he is competetent to opine on your conditions.  If he has a PHd in basketball athletics, his opinion on eye disorders is not competent.  He needs to have medical training and experience in eye disorders for his opinon to mean anything. 

2.  The doctor needs to state, "he reviewed your records".  A doctors opinion that has not reviewed your records is useless to VA.  

3.  He needs to state it in a format vA understands.  That is, "in my professional opinion (the Veterans) eye conditions are not congenital, but rather at least as likely as not caused by (an event in military service).  He needs to supply a medical rationale as to why he makes said opinion.  If he did a genetic testing on you, then so state.  If your parents did not have the disorder, then the doctor should so state.  

    In short, there are IMO's and there are IMO's that work and win benefits.  They are not always the same.  

    When filing a nod, my advice is NOT to offer "your opinion".  Instead cite regulations, medical journals, your doctor, etc opinions.  You also want to "refute" the reasons and bases for denial.  Example:

While the mmddyy VARO decision states, "this is a congenital defect", the VA rating specialist is not competent to determine the etiology of this medical condition.  Instead, the Vets doctor, doctor (name) stated, in an exam dated 11-14-2018, "this is inconsistent with a congenital defect."   Cite the docs opinion.  Half the time VA does not read our evidence, they just deny.  It saves em time.  

[Oceanbound]

They don't read your records but claimed they did. They know and denied because like most we all went in there blind and pretty much signed our name to a generic form.

Dr. L can help you with a real IMEO. I posted in the IMO section.

[Holllie Greene]

Hi Wendy,

Good for you to file a NOD.  Hang in there.