Citation Nr: 0814882 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 05-06 863 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral refractive error. 2. Entitlement to service connection for skin disease, to include as due to herbicide exposure. 3. Whether new and material evidence has been submitted to reopen a previously-denied claim for entitlement to service connection for bilateral knee disabilities. 4. Entitlement to a disability rating in excess of 20 percent for a low back disability. 5. Entitlement to a compensable disability rating for erectile dysfunction. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The veteran served on active duty from January 1951 to July 1971, to include service in Vietnam from August 1965 to August 1966. The veteran presented sworn testimony in support of his appeal during an April 2008 hearing at the RO before the undersigned acting Veterans Law Judge. By order of April 2008, the Board of Veterans' Appeals granted a motion for advancement on the Board's docket due to the veteran's advancing age. Therefore, the appeal has received expedited treatment since that time. The issues of whether new and material evidence has been presented to reopen a previously-denied claim for entitlement to service connection for bilateral knee disabilities, entitlement to service connection for eczema, entitlement to a disability rating in excess of 20 percent for a low back disability, and entitlement to a compensable disability rating for erectile dysfunction are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There is no evidence showing that bilateral eye refractive error was directly caused by any event in service or was proximately caused by any service-connected disabilities. CONCLUSION OF LAW In the absence of a showing of direct causation, service connection for refractive error of the eyes on any other basis is precluded by law. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303(c), 4.9 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the issue of entitlement to service connection for refractive error, the Court has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In this instance, as discussed below, the facts are not in dispute. Resolution of the appeal is governed by the specific law and regulations pertaining to congenital and developmental disabilities. Because there is no reasonable possibility that further notice or assistance would aid in substantiating this claim, any deficiency as to VCAA compliance is rendered moot. Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). 38 C.F.R. § 3.159(d). Analysis Initially we note that the veteran has filed claims for entitlement to service connection for refractive error on two previous occasions. These claims were denied by rating decisions of April 1988 and January 1992. Normally, new and material evidence must be submitted to support reopening a finally-denied claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. However, in this instance, such an analysis is inappropriate, given the disposition reached below, that service connection is precluded by law. Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. However, congenital or developmental defects and refractive error of the eye are not considered diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9; Winn v. Brown, 8 Vet. App. 510, 516 (1996). VA's General Counsel has further explained that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin, as long as the evidence as a whole establishes that the familial conditions in question were incurred or aggravated during service within the meaning of VA laws and regulations. VAOPGCPREC 82-90 (July 18, 1990). Precedent opinions promulgated by the Office of General Counsel as to matters of legal interpretation are binding upon the VA. 38 C.F.R. § 14.507. Review of the veteran's service medical records shows that he was initially prescribed glasses to correct his eyesight several years into his active service career and has worn them ever since. There is no indication of any trauma or injury to his eyes during his service. During the April 2008 hearing on appeal, the veteran testified that he believed service connection was warranted for his failing eyesight because he had enjoyed normal vision prior to service and had initially required correction of his eyesight during service. He also testified that he had recently been told he may be developing some diabetic retinopathy. Review of the available VA treatment reports shows that the pertinent diagnosis involving his eyesight was that of refractive error. No diabetic retinopathy had been identified as of November 2006, the most recent eye examination for which results are available in the claims file. To the extent that the veteran may be developing incipient diabetic retinopathy, this symptomatology is already service-connected, as a grant of service connection for diabetes mellitus has been implemented. The veteran and his representative are hereby informed to present evidence of diabetic retinopathy to the RO. As to the issue before the Board, however, involving the demonstrated diagnosis and claimed disability of refractive error; in the absence of direct causation, service connection for refractive error of the eye on any other basis is precluded by law and the benefit sought must be denied. There is no legal basis upon which to grant service connection for refractive error of the left eye, as refractive error is specifically excluded from such consideration under the law. As the disposition of this claim is based on interpretation of the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for bilateral refractive error is denied. REMAND In the recent case of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the United States Court of Appeals for Veterans Claims established significant new requirements with respect to the content of the duty-to-assist notice which must be provided to a veteran, such as this one, who is seeking a higher disability rating. We note that the Court issued this decision after the most recent RO adjudication of the veteran's appeal. Nevertheless, applying these new principles to the present case, the Board finds that although the veteran has been provided with some notification, it does not meet the requirements set forth in Vazquez-Flores v. Peake. In this regard, the letters did not include at least a general description of the criteria necessary to demonstrate entitlement to a higher rating; i.e., a worsening or increase in severity of the disability; and the effect that worsening has on the claimant's employment and daily life. Further, he must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from 0% to as much as 100% (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. The notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Therefore, a remand to provide adequate pre-decisional notice as to these elements of his claims is required. Review of the veteran's claims file reveals several types of evidence which have not yet been fully obtained for review. Initially, it appears that his service medical records may be incomplete. The period between 1951 and 1957 is represented only by two examination reports, one dated in October 1952 and one in April 1953. As the veteran was a cook during service, and was required to undergo yearly examinations, as there is no entrance medical examination of record, and as he likely received some sort of additional medical treatment over the period of six years, we must assume that additional service medical evidence from this period is outstanding. Additionally, during the April 2008 hearing, the veteran testified that he had received several profiles and light duty assignments for knee problems during service. The service medical records currently do not contain any indication of profiles or light duty on account of the veteran's knees. Therefore, in the effort to substantiate the veteran's contentions, another attempt to obtain any outstanding records reflecting the veteran's entire period of service should be made. In this regard, the transcript of the April 2008 hearing reflects some discussion of the many places where the veteran was posted during his military career. In order to correlate the service medical records with all the various locations in which the veteran served, his service personnel records should be obtained for review. After obtaining the personnel records, adjudicators should review them to ensure that all service medical records have been requested and obtained. At multiple points during the veteran's history of interactions with the VA, he has written to request that the RO obtain treatment records from VA medical facilities in Mobile, Alabama; Biloxi, Mississippi; and Pensacola, Florida; and from the medical facility at Keesler Air Force Base, where the veteran was treated as a military retiree, in support of his various claims. However, the RO has not requested records from all these facilities, and in many cases, made requests for only limited time periods. To fully support the veteran's claims for service connection, medical evidence showing continuity of symptomatology is particularly helpful; whereas complete recent medical evidence is most helpful to his increased rating claims. Thus, upon remand, consistent with the VA's duty to assist the veteran in fully- developing his claims, VA should obtain complete medical records reflecting all treatment provided to the veteran at these four facilities from the time of his discharge from service until the present. With regard to the veteran's claim for entitlement to service connection for a skin disease, review of the available service medical records reveals multiple complaints of various skin problems in service. Although there is no indication that these problems are related to each other or were chronic in nature, these are medical questions which require medical expertise to answer. Therefore, upon remand, a VA medical examination should be provided to resolve these questions. Accordingly, the case is REMANDED for the following actions: 1. The RO must review the claims file and ensure that all notification actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A, as interpreted by Vazquez- Flores, are fully complied with and satisfied, to include informing him that he may submit evidence showing the effects of any worsening or increase in severity upon his employment and daily life, providing at least a general description of the criteria necessary to demonstrate entitlement to a higher rating, and providing examples of the types of medical and lay evidence that he may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. See also 38 C.F.R. § 3.159. 2. The RO should obtain the veteran's service personnel records through official channels for inclusion in the veteran's claims file. 3. The RO should make another attempt to secure all outstanding service medical records through official channels; in particular, those records reflecting the time period from 1953 to 1957. If the veteran's service personnel records contain any indication of additional outstanding medical records, these records should be requested as well. 4. The RO should obtain all records of VA medical treatment afforded to the veteran at the VA facilities in Mobile, Alabama; Biloxi, Mississippi; and Pensacola, Florida, from 1972 until the present, which are not contained in his claims file for inclusion in the file. 5. The RO should obtain all post-service treatment records from Keesler Air Force Base, from 1972 to the present. 6. AFTER all development requested above has been completed, the veteran should be afforded a VA dermatologic examination to identify whether the veteran has a current, chronic skin disease, and if so, whether such is related to the skin complaints recorded in his service medical records. The claims folder, including all records obtained pursuant to the above requests, must be made available to the examiner for review before the examination. All tests and studies deemed helpful by the examiner should be conducted in conjunction with the examination. The examiner is requested to express the medical opinion in terms of probability, i.e., greater than 50 percent, less than 50 percent, or exactly 50 percent likely that any current, chronic skin disease is related to the skin complaints in service. 7. After the development requested above has been completed to the extent possible, the RO should again review the record, making an initial determination as to whether new and material evidence sufficient to reopen the previously- denied claim for bilateral knee disabilities has been presented, and reviewing the other claims on their merits. If any benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs