Citation Nr: 0814266 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 04-40 958 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for otitis interna, claimed as an ear condition. 2. Entitlement to service connection for impaired vision. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran served on active duty from August 1969 to August 1971. This case was previously before the Board of Veterans' Appeals (Board) in November 2006, at which time it was remanded for further development. Following the requested development, the RO confirmed and continued its denial of the veteran's application to reopen a claim of entitlement to service connection for otitis interna, claimed as an ear condition, as well as his claim of entitlement to service connection for impaired vision. Thereafter, the case was returned to the Board for further appellate action. After reviewing the record, the Board finds that still- additional development is warranted with respect to the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for otitis interna 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. During the course of the appeal, the veteran claimed entitlement to service connection for post-traumatic stress disorder (PTSD). In July 2005, the RO denied that claim, and later that month, it notified the veteran of that decision. The veteran disagreed with that decision, and in June 2006 he filed a timely notice of disagreement. In December 2006, the veteran was issued a Statement of the Case and informed that he had 60 days to file an appeal. He was further informed that if he did not file an appeal within the allotted time, his case would be closed. Thereafter, the veteran did not file a timely substantive appeal. Therefore, the case is closed and the July 2005 decision is final. 38 U.S.C.A. § 7105(c) (West 2002 and Supp. 2007); 38 C.F.R. § 20.1103 (2007). Accordingly, the Board has no jurisdiction over any claim of service connection for PTSD, and it will not be considered below. 38 U.S.C.A. § 7104(a) (West 2002 and Supp. 2007); 38 C.F.R. § 20.101 (2007). FINDINGS OF FACT 1. The veteran's impaired vision is the result of refractive error and cataracts. 2. Refractive error is not a disease within the meaning of the law and regulations providing compensation benefits. 3. Cataracts were first manifested many years after service, and there is no competent evidence that they are in any way related thereto. 4. The veteran's impaired vision is not proximately due to or chronically worsened by his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. Impaired vision is not the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.159, 3.303 (2007). 2. The criteria for secondary service connection for impaired vision have not been met. 38 U.S.C.A. §§ 5103, 5103A (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.159, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Prior to consideration of the merits of the veteran's appeal, the Board must determine whether VA has met its statutory duty to assist the veteran in the development of his claim of service connection for impaired vision. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Generally, in order to establish service connection for a particular disability, there has to be competent evidence of current disability (generally, a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in- service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Upon receipt of a complete or substantially complete application for benefits, VA is required to advise a veteran of the information and evidence not of record that is necessary to substantiate the claim. 38 U.S.C.A. § 5103; 38 CFR § 3.159(b)(1). As part of that notice, VA must inform the veteran 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 veteran to provide any additional evidence in his possession that pertained to the claim. See 38 U.S.C.A. § 5103; 38 CFR § 3.159(b)(1); 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 veteran 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 notice are not prejudicial to the veteran. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Pelegrini, 18 Vet. App. at 121. In letters, dated in January 2004 and March 2007, the RO provided timely notice to the veteran regarding the information and evidence necessary to substantiate service connection claims, as well as specifying the information and evidence to be submitted by him, the information and evidence to be obtained by VA, and the need for him to advise VA of or submit any further evidence that pertained to his claim. Relevant evidence on file consists of the veteran's service medical and personnel records; records reflecting the veteran's treatment by VA from July 1989 through February 2007; and reports of VA examinations performed in December 1990, June1993, and May 2007. In March and September 2007, the RO notified the veteran that once service connection for a particular disability had been established, a disability rating would be assigned in accordance with the criteria set forth in the VA schedule for evaluating disabilities. 38 C.F.R. Part 4. The RO also notified the veteran that an effective date for the award of benefits would be assigned and would be based, generally, on the date of the receipt of the claim for benefits or when the evidence showed a level of disability that supported a certain rating under the rating schedule. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although notice of the information and evidence necessary to establish an assigned rating and effective date was not provided to the veteran at the time he filed his claim of service connection for impaired vision, any such error was effectively harmless. Not only did the foregoing notices provide such information, the veteran and his representative submitted addition evidence and argument, and VA examined the veteran. Thereafter, the RO made a determination after consideration of such additional evidence and argument. Finally, the Board notes that since the claim is being denied no disability rating or effective date will be assigned. Therefore, any questions in that regard are essentially moot. For all of these reasons, the Board finds that the veteran was not prejudiced by any notice timing error. After reviewing the record, the Board finds that VA has met its duty to assist the veteran in the development of information and evidence necessary to support his claim for service connection for impaired vision. With respect to that issue, it appears that all relevant evidence identified by the veteran has been obtained and associated with the claims folder. Indeed, he has not identified any outstanding evidence, which could be used to support that claim. As such, 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). Therefore, further action is unnecessary in order to meet VA's statutory duty to assist him in the development of his claim for service connection for impaired vision. See, e.g., Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (development that would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Accordingly, the Board will proceed to the merits of the appeal. Analysis The veteran contends that his impaired vision is a result of service or of his service-connected diabetes mellitus. Therefore, he maintains that service connection is warranted. However, the veteran's impaired vision was first manifested many years after service and there is no competent evidence of record that it is in any way related thereto. Moreover, there is no competent evidence that it is proximately due to or chronically worsened by his service-connected diabetes mellitus. Accordingly, service connection is not warranted. Service connection connotes many factors, but basically, it means that the facts, shown by the evidence, established that a particular disease or injury resulting in disability was incurred coincident with active military, naval, or air service, or, if preexisting such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may, however, 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). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). Service connection may also be granted when the evidence shows that a particular disability is proximately due to or the result of a disability for which service connection has already been established. 38 C.F.R. § 3.310(a). Effective October 10, 2006, VA revised its regulations with respect to secondary service connection. 71 Fed. Reg. 52,744 (September 7, 2006) (now codified at 38 C.F.R. § 3.310 (2006)). Under the revised rules, any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. Id. In this case, a review of the evidence is negative for any complaints or clinical findings of eye disability of any kind. Indeed, during service entrance examination and during his service separation examination, his eyes, pupils, and ocular motility were normal, as were the results of an ophthalmoscopic evaluation. Moreover, his uncorrected visual acuity was 20/20, bilaterally. Impaired vision was not manifested until the early 2000's, when it was noted that the veteran had refractive error, bilaterally. His visual acuity was 20/40 in the right eye and 20/50 in the left eye. By VA regulation, however, refractive error is not considered a disease for which service connection may be established. 38 C.F.R. § 3.303(c). In this regard, there is no competent evidence of injury or disease responsible for the veteran's refractive error. Since the early 2000's, the veteran has been followed by the VA Ophthalmology/Optometry service, primarily to assess any effect that his service-connected diabetes mellitus was having on his eyesight. VA eye consultations, such as those performed in March 2004 and May 2006, have confirmed the veteran's refractive error as well as the presence of cataracts and the residuals of a right pterygium, post- operative. However, they have been consistently negative for any vision changes or eye involvement associated with diabetes. Nevertheless, in May 2007, the veteran underwent a VA eye examination to determine the nature and etiology of any eye disorder found to be present. The VA examination confirmed the presence of refractive error, cataracts, and the residuals of a right pterygium post-operative. Indeed, the examiner stated that the veteran's loss of vision was due to refractive error. He also stated that the was no diabetic retinopathy and that the veteran's loss of vision, including cataracts was not caused by or a result of his service-connected diabetes mellitus. Although the examiner did not squarely address the question of whether the veteran's diabetes aggravated his impaired vision, such a question is effectively moot, as the competent evidence of record has been consistently negative for any association of the veteran's diabetes and any type of eye disability. The only reports to the contrary come from the veteran. As a layman, however, the veteran is only qualified to report on matters which are capable of lay observation. He is not qualified to render opinions which require medical expertise, such as the diagnosis or cause of a particular disability. 38 C.F.R. § 3.159(a); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Therefore, his opinion, without more, cannot be considered competent evidence of service connection. Absent such evidence, service connection is not warranted on a direct or secondary basis. To that extent, the appeal is denied. ORDER Entitlement to service connection for impaired vision is denied. REMAND The veteran also seeks to service connection for otitis interna, claimed as an ear condition. In its November 2006 remand, the Board noted that such a claim had been before VA previously, the last time in May 1984. The veteran had not appealed that decision and, therefore, it had become final under the law and regulations then in effect . 38 U.S.C. § 4005(c) (1982); 38 C.F.R. § 19.192 (1983). Where, as here, the veteran seeks to reopen claims of service connection, the RO/AMC must ensure compliance with VA's duty to notify in accordance with Kent v. Nicholson, 20 Vet. App. 1 (2006) (Holding that when a veteran seeks to reopen a previously denied claim, VA must examine the bases for the denial in the prior decision and advise the veteran of the evidence necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial.). In its November 2006 remand, the Board found that while VA had notified the veteran of the information and evidence necessary to substantiate the underlying claim, it had failed to notify him that new and material evidence was necessary to reopen the claim of service connection for otitis interna. In particular, the Board noted that the veteran had not been notified of the element or elements necessary to support a grant of service connection, which had been found insufficient in the prior denial. Consequently, the Board directed the RO to notify the veteran of the information and evidence necessary to support a reopening of his claim of service connection for otitis interna, claimed as an ear condition. In March 2007, the RO notified the veteran that he required new and material evidence to reopen his claim of service connection for otitis interna. The also notified the veteran of the information and evidence necessary to substantiate the underlying claim. Although the RO explained the meaning of new and material evidence, it did not identify the element or elements necessary to support a grant of service connection, which had been found insufficient in the prior denial. The foregoing deficiency suggest less-than-full compliance with instructions in the Board's remand and must be remedied. Stegall v. West , 11 Vet. App. 268 (1998). While it is true that where a veteran has not been harmed by an error in a Board determination, the error is not prejudicial, the Board cannot say, based on the record before it, that the veteran here has not been harmed. Stegall at 271. In light of the foregoing, the case is remanded for the following actions: 1. Ensure compliance with VA's duties to assist the veteran in the development of his application to reopen a claim of service connection for otitis interna, claimed as an ear condition, as well as his claim for service connection for impaired vision. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In so doing, ensure that the veteran is informed of the element or elements necessary to support a grant of service connection, which had been found insufficient in the RO's May 1984 denial. 2. When the actions requested in part 1 actions have been completed, undertake any other indicated development, if deemed by the RO/AMC to be appropriate under the law. Then readjudicate the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for otitis interna, claimed as an ear condition. If the benefits sought on appeal are not granted to the veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The veteran need take no action unless he is notified to do so. It must be emphasized, however, that the veteran has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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). _________________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs