Citation Nr: 1107253 Decision Date: 02/23/11 Archive Date: 03/04/11 DOCKET NO. 09-45 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for an eye disability, to include astigmatism, compound, myopic, bilateral. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from February 1954 to February 1956. This matter comes to the Board of Veterans' Appeals (Board) from a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in July 2009, a statement of the case was issued in 2009, and a substantive appeal was received in November 2009. The Veteran testified at a Board hearing in March 2010; the transcript is of record. In January 2011, the Board advanced the Veteran's case on the docket pursuant to 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2010). FINDING OF FACT The Veteran's decreased visual acuity is due to refractive error and is not a disability for the purposes of entitlement to VA compensation benefits. CONCLUSION OF LAW Service connection for decreased visual acuity due to refractive error is precluded by governing regulations. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 and West Supp. 2010); 38 C.F.R. §§ 3.303, 4.9 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In March and April 2009, VCAA letters were issued to the Veteran with regard to his claim of service connection, and such letters predated the June 2009 rating decision. Collectively, the letters notified the Veteran of what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the types of evidence necessary to establish an increased rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA. The evidence of record contains a portion of the Veteran's service treatment records, to include the documents associated with his medical discharge from service. Apparently, the Veteran's remaining service treatment records are unavailable for review as they may have been destroyed in a fire. Under such situations the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of- the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim of service connection but rather 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). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217- 18 (2005) (wherein the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease). The evidence of record also contains records from the Intermountain Salt Lake Clinic. There is otherwise no indication of relevant, outstanding records which would support the Veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). VA is required to seek a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current disability, establishes that the Veteran suffered an event, injury or disease in service, and indicates that the current disability may be associated with the in-service event, injury or disease. 38 C.F.R. § 3.159(c)(4). As will be discussed in complete detail below, the competent and credible evidence in this case does not establish a superimposed injury of the eye, nor a possible association between a current disability and service. Therefore, a VA opinion is not required with regard to this issue. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue in appellate status. Criteria & Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). For purposes of entitlement to compensation, the law provides that refractive errors of the eyes are not diseases or injuries 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 has claimed entitlement to service connection for decreased visual acuity. Specifically, the Veteran asserts that he developed problems with his eyesight during service. A 'Clinical Abstract' generated during service reflects that the Veteran was serving as a cook in the Army. The Veteran gave a history of poor vision, bilateral, for as long as he could remember. He wore corrective lenses since early childhood. He claimed blurring of vision whenever he reads or watches television. He often experiences headaches. Due to his poor vision, he has been unable to obtain a driver's license. Upon examination, he was found to have a compound, myopic astigmatism, bilaterally. Unaided visual acuity was 20/200, bilaterally, corrected to 20/60, bilaterally. The Veteran's visual acuity fell below the minimum physical standards required for active duty in the Army. Due to his ocular limitations, he could prove a liability to the government if he were injured in the line of duty. Thus, it was recommended that he be separated from service for a condition which existed prior to service and falls below the minimum physical standards. Discharge Board Proceedings were conducted in February 1956, and he was separated from service as he was not considered qualified for enlistment due to defective vision, both eyes. At the Board hearing, the Veteran testified that he recalled being burned with steam while cooking. He stated that he was cleaned up, sent to sick bay, and put on light duty for a period. The Veteran has not suggested that he sustained an injury directly to the eyes during such incident, and moreover the 'Clinical Abstract' does not reflect any injury to the eyes, rather that he had poor vision present since childhood. If the Veteran had actually sustained injury to the eyes during service, it is likely that such injury would have been discussed or referenced in the 'Clinical Abstract' generated for purposes of his discharge from service. Thus, the Board finds that the Veteran did not sustain a superimposed injury to the eyes during service, but rather his claim stems solely from his claim of decreased visual acuity during service. The Veteran is not competent to state that his eye problems are due to a condition other than refractive error because he is not shown to have the medical expertise to determine the etiology of ocular pathology. While the service records do reflect that the Veteran underwent treatment for decreased visual acuity, to include compound, myopic astigmatism, bilaterally, there is no medical evidence of record to suggest any superimposed eye disability during active duty service. The Veteran was discharged from service due to a bilateral myopic astigmatism, and as detailed 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. Thus, the Veteran's claim must be denied as a matter of law. ORDER Entitlement to service connection for eye disability, to include astigmatism, compound, myopic, bilateral is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs