Citation Nr: 0813661 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 02-12 704A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for strabismic/refractive amblyopia as secondary to service- connected diabetes mellitus. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from December 1968 to December 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Other than for congenital abnormalities, strabismic/refractive amblyopia, there is no competent evidence that the veteran has a currently diagnosed acquired eye disability that is related to a disease or injury during active service, or is due to or aggravated by service- connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for eye problems, claimed as secondary to service-connected disability, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 4.9 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, a November 2004 letter to the veteran from the RO specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting the veteran to provide any information or evidence in his possession that pertained to the claims. Second, VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007). The information and evidence associated with the claims file consist of the veteran's service treatment records, VA medical treatment records, private post-service medical treatment records, VA ophthalmologic examinations, and statements and testimony from the veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the veteran. Lastly, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements apply to all five elements of a service connection claim, including the rating and effective date of an award. For the reasons described below, service connection and/or an increased rating for the claimed disability is being denied and neither a rating nor an effective date will be assigned. As such, there is no prejudice to the veteran with respect to any notice deficiencies related to the rating or effective date. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). Service connection may 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) (2007). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2007). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Additionally, when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310 (2007). Generally, congenital or developmental defects or conditions are not considered to be diseases or injuries within the meaning of applicable legislation providing VA disability compensation benefits. 38 C.F.R. § 3.303(c). Additionally, 38 C.F.R. § 4.9 indicates that mere congenital or developmental defects, absent, displaced or supernumerary parts, refractive error of the eye, personality disorder and mental deficiency are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Factual Background and Analysis At the time of enlistment examination, the veteran was noted to have refractive vision. This was not considered disqualifying. In January 1969, hyperopia and right amblyopia were noted upon visual testing. The right and left eyes were corrected to 20/20. In November 1969, the veteran was seen for right eye pain. There was swelling on the medial aspect of the upper right lip, with no definite lump, and with redness at the conjunctival side and epidermal side of the lid. Hordeolum was diagnosed. At the time of discharge exam in December 1970, no defects regarding the eye were noted. Based on the veteran's statements and testimony of record, it is his contention that his current vision problems are related to his service-connected diabetes mellitus. His problems included dimming of vision, itching, burning, and seeing flashing lights. However, as indicated upon VA examination in December 2003, it was determined that the veteran had refractive strabismic amblyopia with no diabetic retinopathy. Additional exam was conducted by VA in November 2004. At that time, it was determined that the veteran's reduced vision was most likely due to a longstanding microtropria combined with latent hypermetropia, i.e., strabismic and refractive amblyopia. The veteran was seen again for additional testing approximately one week later. It was concluded that there was a longstanding right microtropia combined with latent hyperopia. While it was noted by the examiner that the veteran had a history of diabetes mellitus, no diabetic retinopathy was shown. Similarly, when seen in June 2005, strabismic amblyopia in the right eye A history of severely restricted (tubular) visual field though to be psychogenic in nature was also noted. In January 2006, the veteran testified that his vision had worsened after he was diagnosed with diabetes. Records show a longstanding history of decreased visual acuity due to refractive error. This was initially noted at time of service entrance. Under 38 C.F.R. § 3.303(c), congenital or developmental abnormalities, and refractive error of the eye, are not considered diseases or injuries within the meaning of applicable legislation governing the awards of compensation benefits. As strabismic refractive/amblyopia are refractive errors, those conditions are not "diseases" or "injuries" for the purposes of service connection. McNeely v. Principi, 3 Vet. App. 357, 364 (1992). Service connection could be granted for additional acquired eye pathology superimposed on the refractive error. No chronic eye disease or injury was assessed in service. Refractive error noted then is a manifestation of refractive error. While service connection may be granted, in limited circumstances, for superimposed disability on a constitutional or developmental abnormality (see VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); see also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993)), there is no evidence whatsoever that such occurred in this case. The veteran's service treatment records reflect neither an injury nor a chronic disease regarding the eyes. They do show that he was treated on one occasion for an eye lesion but no residuals of such were noted. The only additional visual impairment other than refractive errors, noted since discharge from service is visual field loss (tubular), as noted by a VA examiner in 2005. This was reported as functional and psychogenic in nature. The fact that the veteran had diabetes but no diabetic retinopathy has been noted on several occasions by VA personnel. In short, the evidence does not reflect aggravation or other acquired eye pathology. The VA examiners' opinions of record are consistent with the evidence of record that shows decreased visual acuity in the eyes due to refractive amblyopia and/or psychogenic visual field loss. In this regard, the opinions are probative on the question of causation and are supported by the evidence of record. Here, there is no competent opinion that there are eye disabilities are proximately due to or the result of service-connected diabetes; or that eye disabilities were aggravated by such. Hence, the weight of the evidence is against the claim, and against the grant of service connection. Inasmuch as the preponderance of the evidence is against each of the claims for service connection, reasonable doubt does not arise and the claim is denied. 38 U.S.C.A. § 5107(b). ORDER Service connection for eye disorders as secondary to service- connected diabetes mellitus is denied. REMAND The veteran's claim for service connection for PTSD was originally denied in a January 1987 rating decision. That denial was confirmed and continued by rating decision in September 1995. The veteran was notified that same month but did not appeal. The September 1995 rating decision, therefore, represents the last final action on the merits of the service connection claim. Glynn v. Brown, 6 Vet. App. 523 (1994). The provisions of 38 C.F.R. § 3.156(a), which defines new and material evidence, were amended in 2001, and that amendment applies to claims to reopen filed on or after August 29, 2001. See 66 Fed. Reg. 45620 (2001). That amendment does apply in this case as the veteran's claim to reopen was filed in September 2001. In May 2002, the RO determined that new and material evidence has not been received to reopen the claim of entitlement to service connection for PTSD. Subsequently dated rating determinations in the form of the statement of the case (SOC) and supplemental statements of the case (SSOCs) only sometimes refer to the fact that the claim was previously denied by the RO. The August 2005 letter regarding VCAA duties to notify and assist specifically does not reflect that his claim for service connection for PTSD was one based on whether new and material evidence had been received since the last final denial of the claim. At his personal hearing, his claim was referred to as one for entitlement to service connection for PTSD, not as a claim addressing whether new and material evidence had been received to reopen a previously denied claim for such. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held, in part, that VA's duty to notify a claimant seeking to reopen a claim included advising the claimant of the evidence and information needed to reopen the claim and notifying the claimant of the evidence and information needed to establish entitlement to the underlying claim for the benefit sought by the claimant. The Court further held that VA must, in the context of a claim to reopen, look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. As inadequate notice in this regard has been provided to the appellant, his new and material evidence claim for service connection for PTSD must be remanded. As indicated above, while the May 2002 decision by the RO mentioned that his claim had previously been denied as does the SOC and select SSOCs of record, the veteran has not been issued adequate notice regarding the reopening of a previously denied claim. The United States Court of Appeals for Veterans Claims (Court) has indicated that when the Board addresses a question not considered by the RO, the Board must consider whether the claimant had notice of that issue and whether the claimant would be prejudiced by lack of such notice. Barnett v. Brown, 8 Vet. App. at 4; Curry v. Brown, 7 Vet. App. 59, 66 (1994); Bernard v. Brown, 4 Vet. App. 384 (1993). The Board is of the opinion that there is much doubt as to whether the veteran had adequate notice as to the issue of new and material evidence, and that there may be prejudice to him by the lack of such notice. It is noted that neither the veteran nor his representative have addressed or referenced the issue in terms of whether new material evidence has been received. Under the circumstances of this case, the Board is of the opinion that further development is necessary in order to provide due process of law. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC will advise the claimant of what evidence would substantiate his petition to reopen claim of service connection for PTSD last denied in a September 1995 rating decision. Apart from other requirements applicable under the Veterans Claims Assistance Act (VCAA), the RO/AMC will comply with the Kent ruling, and advise the claimant of the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefits sought by the claimant. In so doing, the RO/AMC will comply with any directives of the Veterans Benefit Administration and advise the claimant of the element or elements required to establish service connection that were found insufficient in the previous denials. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007). 2. Following such development, the RO should review and readjudicate the claim. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.). If any such action does not resolve the claim, the RO/AMC shall issue the appellant a SSOC. Thereafter, the case should be returned to the Board, if in order. 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 of Veterans' Appeals 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. 2007). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs