Citation Nr: 0005512
Decision Date: 02/29/00	Archive Date: 09/08/00

DOCKET NO. 89-21 182               DATE FEB 29, 2000

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

THE ISSUE

Entitlement to service connection for a bilateral eye disability,
diagnosed as ischemic optic neuritis and keratoconus, claimed as
residual to inservice toxin(s) or chemical exposure other than
Agent Orange herbicide.

REPRESENTATION 

Appellant represented by: Disabled American Veterans 

ATTORNEY FOR THE BOARD 

Frank L. Christian, Counsel

INTRODUCTION

The veteran served on active duty from August 1950 to August 1951,
from August 1952 to August 1955, and from February 1956 to service
retirement in January 1972.

This matter comes before the Board of Veterans' Appeals (Board) on
appeal from a rating decision of March 1989 from the Department of
Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

This case was previously before the Board in December 1989 and in
December 1994, and was Remanded to the RO on both occasions for
further development of the evidence and for consideration of all
pertinent law and regulations. The case was again before the Board
in October 1997, at which time the appear for service connection
for a bilateral eye disability as residual to Agent Orange (AO)
herbicide exposure was denied. As a consequence, the Board will not
consider the issue of a bilateral eye disability as residual to AO
herbicide exposure is this decision. The remaining issue of whether
new and material evidence has been submitted to reopen a claim of
entitlement to service connection for a bilateral eye disability
was Remanded to the RO on both occasions for further development of
the evidence, for consideration of all pertinent law and
regulations, and for issuance of a Supplemental Statement of the
Case which informed the appellant of all pertinent law and
regulations applicable to the remaining issue on appeal. The case
has been returned to the Board for further appellate consideration.

The Board's review of the record shows that the veteran and his
representative have limited the remaining issue on appeal to that
of service connection for a bilateral eye disability, diagnosed as
ischemic optic neuritis and keratoconus, claimed as residual to
inservice toxin(s) or chemical exposure other than AO herbicide. As
that issue has not previously been the subject of a final
adjudicative, denial, the RO and the Board have addressed that
issue on a de novo basis. In view of the Board's

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October 1997 decision denying the appeal for service connection for
a bilateral eye disability as residual to AO herbicide exposure,
the Board will not further address or consider that particular
issue in this decision.

The record shows that the veteran's pending claim for a rating in
excess of 10 percent for bilateral defective hearing was denied by
rating decision of November 1997, and was not appealed.

The Board notes that in a letter received at the RO in December
1997, the veteran makes reference to his participation in nuclear
weapons testing on Eniwetok and Kwajalein Islands between 1956 and
1959. If the veteran wishes to claim service connection for
disability secondary to exposure to ionizing radiation, he should
express that intention to the RO and identify the disability
claimed, and should be provided VA form 21-526 to complete and
submit.

FINDINGS OF FACT

1. The veteran served on active duty from August 1950 to August
1951, from August 1952 to August 1955, and from February 1956 to
service retirement in January 1972, including service as an
Aircraft Loadmaster from February 1960 to June 1964, as an Air
Freight Specialist from June 1964 to August 1966, and as a Material
Facilities Specialist or Supervisor from August 1966 to May 1968.

2. The only eye disabilities manifest during active service or on
service retirement examination were a congenital compound myopic
astigmatism of tie left eye, diagnosed as congenital amblyopia and
a bilateral refractive error of vision; ischemic optic neuritis of
the left eye was first demonstrated and diagnosed in July 1978,
while keratoconus of the left eye was initially shown in August
1995.

3. Service connection may not be granted for congenital
disabilities or for refractive errors of vision under VA law and
regulations.

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4. Ischemic optic neuritis and keratoconus are not among the
diseases which may be presumptively service connected under
applicable law and regulations pertaining to AO exposure.

5. The veteran has submitted no competent medical evidence which
links or relates ischemic optic neuritis and keratoconus to his
periods of active service or to toxin or chemical exposure during
such service.

6. The claim of entitlement to service connection for a bilateral
eye disability, including ischemic optic neuritis and keratoconus,
as residual to toxin or chemical exposure during active service is
not plausible.

CONCLUSIONS OF LAW

1. Congenital defects and refractive errors of vision, including
the veteran's congenital amblyopia and congenital compound
hyperopic astigmatism, are not diseases or injuries under
applicable legislation providing for payment of VA disability
compensation benefits. 38 C.F.R. 3.303(c) (1999).

2. The claim of entitlement to service connection for a bilateral
eye disability, diagnosed as ischemic optic neuritis and
keratoconus, as residual to toxin or chemical exposure during
active service is not well grounded. 38 U.S.C.A. 5107(a) (West
1991).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As a preliminary matter, the Board must determine whether the
veteran has submitted evidence of a well-grounded claim for service
connection for bilateral eye disability, including ischemic optic
neuritis and keratoconus, as residual to toxin or chemical exposure
during active service. If he has not, his appeal must fail, and VA
is not obligated to assist him in the development of the claim. 38
U.S.C.A.

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 5107(a)(West 1991). The United States Court of Appeals for
Veterans Claims (Court) has defined a well-grounded claim as a
plausible claim, one which is meritorious on its own or capable of
substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). It has
also held that where a determinative issue involves a medical
diagnosis or medical causation, competent medical evidence to the
effect that the claim is plausible is required. Grottveit v. Brown,
5 Vet. App. 91 (1993). For the reasons set forth below, the Board
finds that the veteran has not met his burden of submitting
evidence to support a belief that his claim of entitlement to
service connection for a bilateral eye disability, diagnosed as
ischemic optic neuritis and keratoconus, as residual to toxin or
chemical exposure during active service is not well grounded. 38
U.S.C.A. 5107(a)(West 1991); see Grottveit v. Brown, supra; Tirpak
v. Derwinski, 2 Vet. App. 609 (1992); Murphy v. Derwinski, supra.

The appellant contends that the RO erred in failing to grant
entitlement to service connection for a bilateral eye disability,
diagnosed as ischemic optic neuritis and keratoconus, because it
did not take into account or properly weigh the medical and other
evidence of record. It is contended that he was exposed to numerous
and various toxins and chemicals, known and unknown, while serving
as an Aircraft Loadmaster in the Republic of Korea and the Republic
of Vietnam, and that such exposure caused him to develop his
current bilateral eye disability, including ischemic optic neuritis
and keratoconus. It is contended that he experienced massive
defusion of the right eye with loss of right eye vision in 1978;
and that he is totally blind in both eyes. It is asserted that VA
should obtain the quarterly and historical reports for the units in
which the veteran served to ascertain his exposure to the toxins.

The evidence of record establishes that the only eye disabilities
manifest during the veteran's periods of active service or on
service retirement examination were a congenital compound myopic
astigmatism of the left eye, diagnosed as congenital amblyopia, and
a bilateral refractive error of vision. Ischemic optic neuritis of
the left eye was first demonstrated and diagnosed in July 1978,
while keratoconus of the left eye was initially shown in August
1995. Governing law and regulations provide that congenital defects
and refractive errors of vision, including the

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veteran's congenital amblyopia and congenital compound hyperopic;
astigmatism, are not diseases or injuries under applicable
legislation providing for payment of VA disability compensation
benefits. 38 C.F.R. 3.303(c) (1999).

In the present case, the veteran has not submitted any competent
medical evidence or opinion which links or relates his bilateral
eye disability, diagnosed as ischemic optic neuritis and
keratoconus, to his period of active service or to AO exposure
during such service. Specifically, the September 1992 statement
from H. Jackson Woodward, MD, does not link or relate any
compensable eye disability of the veteran to AO exposure during
active service, and the report of VA ophthalmologic evaluation in
August 1995 clearly states that there is no evidence that toxic
chemicals or toxic exposure can predispose an optic nerve to
ischemic optic neuropathy [or] the development of keratoconus.
Further, the Board notes that, as a lay person, the veteran is not
competent to offer evidence that requires medical knowledge, such
as the diagnosis or cause of a disability, See Grottveit at 93;
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).

The veteran's has not established factually that he had any
extensive or unusual exposure to toxins or chemicals during his
periods of active service and there is no competent medical
evidence or opinion linking or relating the veteran's bilateral eye
disability to exposure to toxins or chemicals during such service.
The fact that the veteran served as an Aircraft Loadmaster, an Air
Freight Specialist, and a Material Facilities Specialist or
Supervisor during portions of his active service is not dispositive
as to his claim of extraordinary toxin or chemical exposure during
active service.

The Board is aware of the appellant's personal opinion that his
bilateral eye disability is due to inservice toxin and chemical
exposure. However, as the Board has noted above, as a lay person,
he is not competent to proffer diagnoses or opinions as to the
cause of a disability. Grottveit, at 93; Espiritu, all 494-495
(1992).

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Therefore, without competent medical evidence attributing his
bilateral eye disability to toxin or chemical exposure during his
periods of service, the veteran has not met his burden of
submitting evidence that his claim of entitlement to service
connection for that disability, diagnosed as ischemic optic
neuritis and keratoconus, claimed as residual to inservice toxin
and chemical exposure, is well grounded. Grottveit at 93; Tirpak at
611.

The Board has noted the assertion that VA should obtain the
quarterly and historical reports for the units in which the veteran
served to ascertain his exposure to the toxins. While securing such
records might show a list of toxins or chemical as cargo, such
would not serve to establish harmful exposure of the claimant to
such substances, or that such long-ago exposure was the cause of
his current eye disabilities.

The Court has held that VA cannot assist a veteran in developing a
claim that is not well grounded. Morton v. West, 12 Vet. App. 477
(1999). However, the Board notes that the veteran may render his
claim well grounded by submitting clinical evidence showing the
presence of a ratable bilateral eye disability during active
service or on service retirement examination, or competent medical
evidence linking or relating his current bilateral eye disability,
diagnosed as ischemic optic neuritis and keratoconus, to inservice
toxin or chemical exposure. Robinette v. Brown, 8 Vet. App. 69, 74
(1995).

Although the Board has considered and denied the veteran's claim
for service connection for a bilateral eye disability, diagnosed as
ischemic optic neuritis and keratoconus, as residual to toxin or
chemical exposure during active service on a ground different from
that of the RO, that is, on the basis of whether the veteran's
claim for service connection for that disability on that basis is
well grounded rather than whether he is entitled to prevail on the
merits, the veteran has not been prejudiced by this decision. In
assuming that the claim was well grounded, the RO accorded the
veteran greater consideration than his claim warranted under the
circumstances. Bernard v. Brown, 4 Vet. App. 3845 392-394 (1993).
To remand this case to the RO for consideration of the issue of
whether the appellant's claim

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for service connection for a bilateral eye disability, diagnosed as
ischemic optic neuritis and keratoconus, as residual to toxin or
chemical exposure during active service is well grounded would be
pointless and, in light of the legal authority cited above, would
not result in a determination favorable to the appellant.
VAOPGCPREC 16-92 (O.G.C. 16-92); 57 Fed. Reg. 49, 747 (1992).

ORDER

Evidence of a well grounded claim not having been submitted, the
claim of entitlement to service connection for a bilateral eye
disability, diagnosed as ischemic optic neuritis and keratoconus,
as residual to toxin or chemical exposure during active service, is
denied.

F. JUDGE FLOWERS
Member, Board of Veterans' Appeals

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