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