Citation Nr: 0810655	
Decision Date: 04/01/08    Archive Date: 04/14/08

DOCKET NO. 05-00 797	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, 
Virginia


THE ISSUE

Entitlement to service connection for a vision disability.


REPRESENTATION

Appellant represented by:	Virginia Department of 
Veterans Services


ATTORNEY FOR THE BOARD

M. N. Hyland, Counsel


INTRODUCTION

The veteran had active duty from March 1979 to July 1999.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a January 2003 rating decision by a 
Regional Office (RO) of the Department of Veterans Affairs 
(VA). In an August 2006 rating decision, the RO granted 
entitlement to service connection for a right hand 
disability, a lumbar strain disability, a cervical strain and 
degenerative disc disease disability, and a hemorrhoids 
disability. This is considered a full grant of the benefits 
sought with respect to these issues; as such, these issues 
are no longer considered to be in appellate status.


FINDING OF FACT

A refractive error of the eye is not a disability for 
purposes of VA compensation.


CONCLUSION OF LAW

Service connection for an eye disability due to refractive 
error is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 
2002); 38 C.F.R. §§ 3.303, 4.9 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to advise a claimant 
of the information and evidence not of record that is 
necessary to substantiate the claim. See 38 U.S.C.A. § 5103 
(West 2002); 38 CFR § 3.159(b)(1) (2007). As part of that 
notice, VA must inform the claimant of the information and 
evidence he is expected to provide, as well as the 
information and evidence VA will seek to obtain on his 
behalf. In addition, VA must advise a claimant to provide any 
additional evidence in his possession that pertains to the 
claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 
3.159(b)(1) (2007); Quartuccio v. Principi, 16 Vet. App. 183 
(2002). 

The requirements apply to all five elements of a service 
connection claim: veteran status, existence of a disability, 
a connection between the veteran's service and the 
disability, degree of disability, and 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 decision on a claim for VA benefits by the agency 
of original jurisdiction (in this case, the RO). Id; see also 
Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, VA 
may proceed with adjudication of a claim if errors in the 
timing or content of the VCAA notice are not prejudicial to 
the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); 
Dunlap v. Nicholson, No. 03-320 (U.S. Vet. App. Mar. 22, 
2007); see also Pelegrini, 18 Vet. App. at 121; Sanders v. 
Nicholson, 487 F.3d 892 (Fed. Cir. 2007); Simmons v. 
Nicholson, 487 F.3d 881 (Fed. Cir. 2007).

In this case, in June 2002, and March and May 2006 letters, 
the RO provided notice to the veteran regarding what 
information and evidence is needed to substantiate service 
connection, increased rating, and effective date claims, as 
well as specifying what information and evidence must be 
submitted by her, what information and evidence will be 
obtained by VA, and the need for her to advise VA of or 
submit any further evidence that pertains to her claim. 

Because not all of the notice was issued prior to issuance of 
the January 2003 rating decision on appeal, the notice was 
not timely; however, the veteran has not been prejudiced from 
this timing error because the denial of the claim in this 
appeal renders moot any question as to the appropriate 
disability rating or effective date to be assigned. See 
Sanders, supra.; Simmons, supra.

The RO has taken appropriate action to comply with the duty 
to assist the veteran with the development of her claim. The 
record includes service records, private medical records, and 
VA treatment records. The veteran has not been afforded a VA 
examination with respect to her claim; however, as explained 
in more detail below, refractive errors of the eye are not 
disabilities for purposes of VA benefits. As such, the 
veteran's claim is denied as a matter of law. Therefore, the 
Board finds that a VA examination is not necessary to 
adjudicate this claim and that the record as it stands 
includes sufficient competent evidence to decide this claim. 
See 38 C.F.R. § 3.159(c)(4). Under these circumstances, the 
Board finds no further action is necessary to assist the 
veteran with the claim.

In sum, the record reflects that the facts pertinent to the 
claim have been properly developed and that no further 
development is required to comply with the provisions of the 
VCAA or the implementing regulations. That is to say, 
"the record has been fully developed," and it is "difficult 
to discern what additional guidance VA could [provide] to the 
veteran regarding what further evidence he should submit to 
substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 
(Fed. Cir. 2004). Accordingly, the Board will adjudicate the 
claim.

Analysis

The veteran's service medical records show a refractive error 
of the eyes with corrected vision to 20/20. For purposes of 
entitlement to benefits, the law provides that refractive 
errors of the eyes are developmental defects and not disease 
or injury within the meaning of applicable legislation. 38 
C.F.R. §§ 3.303(c), 4.9. 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. Thus, VA regulations specifically prohibit 
service connection for refractory errors of the eyes unless 
such defect was subjected to a superimposed disease or injury 
which created additional disability. See VAOPGCPREC 82-90, 55 
Fed. Reg. 45711 (1990) (service connection may not be granted 
for defects of congenital, developmental or familial origin, 
unless the defect was subject to a superimposed disease or 
injury). The veteran's service medical records fail to 
reflect any superimposed injury or disease of the eye, beyond 
the veteran's refractive error. As such, entitlement to 
service connection for a vision disability is not warranted. 

In summary, service connection for a refractive error of the 
eyes for compensation purposes is not legally permitted, and 
as a matter of law this claim must be denied. Sabonis v. 
Brown, 6 Vet. App. 426 (1994). 


ORDER

Service connection for a vision disability is denied.




____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs