Citation Nr: 1031282 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 05-18 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for night myopia, claimed as night blindness. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1983 to July 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted service connection for hypertension, assigning a 10 percent evaluation, and hemorrhoids, assigning a 10 percent evaluation; and denied service connection for myopia, claimed as night blindness, and sinusitis, to include allergies. In April 2004, the Veteran submitted a notice of disagreement for the issue of night myopia and subsequently perfected his appeal in June 2005. In July 2007, the Board remanded the Veteran's claim of entitlement to service connection for night myopia to the Appeals Management Center (AMC) for further evidentiary development, including additional notice, attempting to obtain additional treatment records, and a eye specialist examination. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the Veteran was sent notice compliant with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), in August 2007. The August 2007 letter also requested that the Veteran identify any outstanding treatment records that he wanted VA to obtain. The Veteran did not identify any outstanding private or VA treatment records. In September 2008 and January 2009, the Veteran was afforded new VA eye examinations. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. FINDING OF FACT The preponderance of the evidence is against a finding that night myopia is the result of a disease or injury in active duty service. CONCLUSION OF LAW Night myopia was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all 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 Veteran. 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. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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; and (3) that the claimant is expected to provide. Prior to the initial adjudication of the Veteran's claim, a letter dated in October 2003 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio at 187. Additionally, a letter dated in August 2007 informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman, supra. The Board also concludes VA's duty to assist has been satisfied. The Veteran's VA treatment records and select service treatment records are in the file. Private treatment records identified by the Veteran have been obtained, to the extent possible. In January 2010, the Veteran was informed that his claims file could not be located and would be rebuilt. The service treatment records contained in the claims file are those the Veteran provided. In a case such as this where the Veteran's service records are incomplete, the Board's obligation to explain its findings and conclusions, and to carefully consider the benefit- of-the-doubt doctrine, is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board notes, however, that O'Hare does not create a presumption that the missing treatment records would, if they still existed, necessarily support the Veteran's claim. Case law does not establish a heightened "benefit of the doubt" when the Veteran's service treatment records have been destroyed, only heightened duties of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the Veteran in developing the claim, and to explain its decision. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, the case law does not lower the legal standard for proving a claim for service connection. Rather, it increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). In fulfilling its heightened obligation, VA requested that the Veteran submit any service treatment records or other relevant documents that he possessed. See Letter from RO, January 2010. In response to the January 2010 letter, the Veteran submitted copies of service treatment records relating to his in-service complaints of night blindness and copies of his correspondence with the RO. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when there is (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The record indicates that the Veteran underwent VA eye examinations in September 2008 and January 2009, with April and June 2009 addendums. The results from those examinations have been included in the claims file for review. Both examinations involved a review of the claims file, a thorough examination of the Veteran, and an opinion that was supported by sufficient rationale. Therefore, the Board finds that the examinations are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim for night myopia. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. See 38 C.F.R. § 3.303(b) (2009). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2009). In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran contends that he currently suffers from night myopia as a result of his time in active duty service. Specifically, he claims that he has experienced night blindness since his time in service. Therefore, he believes service connection is warranted. For purposes of entitlement to benefits, the law provides that refractive errors of the eyes are congenital or developmental defects and are not a disease or injury within the meaning of applicable legislation. 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. See 38 C.F.R. §§ 3.303(c), 4.9 (2009). Thus, VA regulations specifically prohibit service connection for refractive errors of the eyes unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990). The Veteran's April 1983 entrance examination indicated that his eyes were normal, but that he had refractive errors correctable by lenses. See entrance examination report, April 1983. Service treatment records from February to April 1991 show the Veteran's complaints of difficulty seeing at night. A March 1991 in- service eye examination showed that the Veteran's eyes were normal with correctable refractive errors. The Veteran was diagnosed with night myopia with no evidence of retinitis pigmentosa. His rating was changed from boat coxswain to subsistence specialist in light of his night vision problems in April 1991. A subsequent July 1991 in-service examination report noted no evidence of any progressive disorder, night vision difficulties which may be markedly improved with new glasses, and that Congenital Stationary Night Blindness could not be ruled out without electroretinography (ERG) testing. See service treatment record, July 1991. The Veteran was afforded VA eye and general examinations in November 2003, September 2008, and January 2009, with April and June 2009 addendums, to determine whether he suffered from an eye disability other than a refractive error. The November 2003 examiner diagnosed the Veteran with night blindness or nocturnal myopia. The September 2008 examiner found normal eyes with no signs of degeneration or pigment spicules. He observed a constricted visual field bilaterally. He concluded that he was unable to give a complete opinion without ERG testing. In January 2009, the Veteran underwent a VA eye specialist's examination with ERG testing. At that time, the examiner diagnosed the Veteran with a refractive error and photosensitivity that was not related to his military service. He noted that ophthalmic and ERG findings revealed a normal retina and optic nerve, with no optic abnormality to support the Veteran's symptoms of night blindness. The examiner was unable to find any eye disability that had an etiology other than congenital or developmental. An April 2009 optometry note reflects review of examination and testing, including a March 2009 complete ophthalmology consult. The diagnoses included refractive error and decreased ocular function at night. It was noted there was no ocular abnormality to support the patient's symptoms. A June 2009 addendum note referred to the prior notes. In this case, the only evidence which purports to relate the Veteran's vision problems to his military service, rather than congenital or developmental defects, consists of the statements of the Veteran and his representative. However, it is now well established that laypersons, such as the Veteran and his representative, without medical training are not competent to relate those symptoms to a specific etiology. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also 38 C.F.R. § 3.159 (a)(1) (2009) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran can describe what he experiences, he is not able to provide competent evidence as to the etiology of his vision problems. His assertions are accorded less weight than the competent medical evidence, the January 2009 VA examiner's opinion, that is against his claim. Competent medical evidence to show that the Veteran's vision problems are not congenital or developmental in nature is lacking in this case. The Board has also considered the other evidence submitted in support of the claim, to include private treatment notes and an article printed off of the internet. The private treatment notes do not indicate that the Veteran's night myopia is due to other than congenital/developmental defect. Similarly, the article off of the internet does not specifically indicate that night myopia is due to disease or injury. Thus, the additional evidence does not indicate that the Veteran's night myopia is due to inservice disease or injury. Based on the medical evidence of record, particularly the January 2009 VA examination report, the Board must conclude that the Veteran's refractive error and other vision complaints are of a congenital/developmental nature. No superimposed disease or injury during service is shown. As the Veteran's decreased ocular function at night is not a disorder capable of service connection, the claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, the Board finds that the claim of entitlement to service connection for night myopia, claimed as night blindness, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for night myopia, claimed as night blindness, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs