Citation Nr: 1416940 Decision Date: 04/16/14 Archive Date: 04/24/14 DOCKET NO. 10-17 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for astigmatism and presbyopia. 2. Entitlement to service connection for eye disability, other than astigmatism and presbyopia. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD T. Matta, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1979 to May 2002, including service in the Southwest Asia Theater of operations during the Gulf War. This matter is before the Board of Veteran's Appeals (Board) on appeal from a September 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in August 2009, a statement of the case was issued in March 2010, and a substantive appeal was received in April 2010. The Board notes that the Veteran also appealed a denial of service connection for kidney stones. The electronic file reflects that the RO issued a November 2013 rating decision that granted service connection for kidney stones and assigned a 30 percent disability rating. The issue of service connection for eye disability, other than astigmatism and presbyopia, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's astigmatism and presbyopia are not diseases or injuries within the meaning of applicable legislation relating to service connection. CONCLUSION OF LAW Service connection for astigmatism and presbyopia is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 4.9 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 and 3.326(a) (2013). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of her claim. A July 2007 letter explained the evidence necessary to substantiate her claim, the evidence VA was responsible for providing, and the evidence she was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claim, and has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Duty to Assist VA also has a duty to assist the Veteran in developing her claim, which includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. However, astigmatism and presbyopia are being denied as a matter of law (discussed in more detail below), the Board is satisfied that VA has fulfilled its duty to assist. The Veteran has not been afforded a VA examination with respect to her claim for these two eye disorders. As the Veteran's claim of service connection astigmatism and presbyopia is being denied as a matter of law, an examination is not warranted. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010); see also VAOPGCPREC 5-2004. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence of record included in the Veteran's claims file, including such evidence contained in Virtual VA and VBMS, 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). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). It should be noted at this point that in the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9; VA Manual M21-1, Part VI, Subchapter II, para. 11.07. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against service connection for eye disability, including astigmatism and presbyopia. In her April 2010 substantive appeal, the Veteran challenges the denial of service connection by stating that she was diagnosed with astigmatism and presbyopia while in service. Although the service treatment records confirm such diagnoses, they do not provide evidence of any superimposed injury to the eyes during service. Accordingly, service connection must be denied. See 38 C.F.R. § 3.303(c). As the preponderance of the evidence is against the Veteran's claim of entitlement to service connection in this case, the benefit-of-the-doubt rule does not apply and this claim is denied. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection astigmatism and presbyopia is not warranted. To this extent, the appeal is denied. REMAND After reviewing the claims file, the Board finds that a VA examination is necessary to assist the Veteran with her service connection claim for eye disability, other than astigmatism and presbyopia. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran maintains that her current eye disabilities were caused by injuries incurred in service, including exposure to fire, smoke, and sand while stationed in Saudi Arabia during the Gulf War. The Veteran's in- and post-service treatment records include a number of eye-related diagnoses. Accordingly, the Board concludes that, to fulfill its duty to assist the Veteran, a VA examination is necessary to determine the likely etiology of the Veteran's diagnosed eye disabilities and to determine whether there are any eye symptoms that cannot be attributed to a known diagnosis. Additionally, in her August 2009 notice of disagreement, the Veteran stated that her service treatment records from 1979 to 1982 have been lost. In her April 2010 substantive appeal, she stated that medical records from the George Air Force Base in California were lost and new records were created. The Board notes that the claims file includes a few service treatment records from 1979 to 1982. However, as this case is being remanded, the Board finds that it is necessary for the RO to determine whether any of the Veteran's service treatment records are missing and to obtain such records. Accordingly, the case is REMANDED for the following actions: 1. Efforts must be made to obtain any missing service treatment records from 1979 to 1982, including from the George Air Force Base in California, from any appropriate records repository. If such records cannot be obtained after reasonable efforts have been exhausted, the AOJ should issue a formal determination that they do not exist or that further efforts to obtain them would be futile and document that finding in the claims file. 2. The Veteran should be scheduled for a VA eye examination to determine the current nature and likely etiology of any eye disabilities, other than astigmatism and presbyopia. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated tests should be conducted. Based on examination of the Veteran and review of her claims file, the examiner should provide an opinion that responds to the following: (a) Please identify (by medical diagnosis) each of the Veteran's eye disabilities, other than astigmatism and presbyopia. (b) As to each disability entity diagnosed, is it at least as likely as not (a 50 percent or greater probability) that such disability was manifested in the Veteran's active duty service or is otherwise causally related to such service, to include exposure to fire, smoke, and sand? (c) If there are objective signs and symptoms of the eye which cannot be attributed to a known clinical diagnosis, the examiner must identify those signs and symptoms. A complete rationale for all opinions should be provided. 3. After completion of the above and any additional development which the AOJ may deem necessary, the issue on appeal should be readjudicated. If service connection for eye disabilities, other than astigmatism and presbyopia, remains denied, the AOJ should issue an appropriate supplemental statement of the case and give the Veteran and her representative the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs