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.

[vetquest]

Never quit.  If I had a good IMO and a denial I would go directly to the BVA.  Your chances at a HLR are not as good.  The BVA law judge will read all of the evidence and not make sloppy decisions.  They spend their time revamping RO decisions.  This is not right but that is the way this animal (VA) lives.

[Richard1954]

I think your case may end up in the Court of Veterans Appeals.  Although with luck the BVA may decide in your favor. I think you can win the case because you indicated this started in service, and you have medical records showing treatment.  In addition, you continue to receive treatment.   I don't think I can advise you based on my eye damage because my situation was rated secondary to my lung disease.  However....

My Asthmatic condition existed when I entered service although I had not had problems for years , by 1986 my condition had worsened with secondary COPD, and I was medically retired. The VA initially denied my claim, and I then claimed CUE, providing a copy of my medical board records which indicated the reasons for my medical retirement.  After receiving the documents the VA granted me 30%.  However, the VA had all of my medical records, and in no less than 7 places it indicated Asthma with secondary COPD. The retirement board indicated that my asthma condition was worsened by active duty.      

I think you can fight this denial and win. You already have an IMO which apparently was not considered or was considered to not carry enough weight with the rater Generally speaking when there exists two separate opinions the tie goes to the veteran.

So first you need a copy of the C/P exam to see what the examiner stated that caused the denial. You need to tear his examination report up as part of your appeal. You need to show where the examiner is wrong. You also need to question why the IMO was ignored. Many cases of pigmentary dispersion and pigmentary glaucoma are not congenital or developmental defects.   

If your c/p exam was conducted at a va facility you should be able to download  a copy from my Healthvet web site.  If it was conducted by a contractor,  you will have to request a copy from the folks in Janesville , Wi Intake center. They will handle the request under the  freedom of information act. It could take 6 months or more to get a copy from them so you need to do this as quickly as possible as you only have a yar to appeal.  

 

Best of luck