Citation Nr: 1209433 Decision Date: 03/13/12 Archive Date: 03/28/12 DOCKET NO. 08-27 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for dry eye disorder, claimed as residuals of right eye surgery. 2. Entitlement to an initial disability rating in excess of 10 percent for lumbar strain. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tabitha G. Macko, Associate Counsel INTRODUCTION The Veteran had active service from May 2001 to May 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction over the case was subsequently returned to the RO in Newark, New Jersey. In connection with his appeal the Veteran testified at a hearing before a Hearing Officer at the Newark, New Jersey RO in February 2009. A transcript of the hearing is associated with the claims file. In an April 2010 decision, the Board denied service connection for insomnia, granted service connection for migraine headaches, and remanded for further development the issues of service connection for residuals of right eye surgery and entitlement to an initial disability rating in excess of 10 percent for lumbar strain. The issue of service connection for the left eye, to include as secondary to the residuals of right eye surgery has been raised by the record (See 2009 DRO hearing Transcript), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to an initial disability rating in excess of 10 percent for lumbar strain 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. FINDINGS OF FACT 1. The Veteran reported a complaint of dry eye in the right eye at the six month post-operative follow up examination following the August 2004 photorefractive keratectomy (PKR) surgery. 2. The Veteran is currently diagnosed with dry eye in the right eye. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, dry eye disorder in the right eye, status post right eye surgery, was incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDINGS 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 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). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). With respect to the Veteran's claim of entitlement to service connection for the residuals of right eye surgery, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to substantiate his claim with regard to the dry eye disorder symptom. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, or 38 C.F.R. § 3.159. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that he continues to experience residual symptoms following a right eye surgery (PRK) performed in service, referred to as having been performed in July 2005. He testified before the DRO that he has experienced eye itching, eye pain, and dry eye in his right eye and that vision had since grown worse. As the Veteran reported dry eye of the right eye in service following the PRK surgery, the Board finds that service connection is warranted for dry eye in the right eye. A review of the Veteran's STRs shows that at his 2001 enlistment examination he indicated that he wore contact lenses to correct his vision. He also denied having had eye trouble. In a May 2001 eye evaluation, the visual acuity, uncorrected, for the right eye (OD) was 20/160. The next eye consultation of record was found in June 2004. At that evaluation, the Veteran denied any pain. He also reported no worsening distance vision, or for nearby objects, or dryness in the right eye. He was still wearing soft, disposable contact lenses. This consultation listed the Veteran's history as having had eye laser surgery to the right eye in either 1999 or 2000 as secondary to a stroke. Following the consultation, the service clinician listed these assessments: a normal examination, refractive error - hypermetropia, regular astigmatism, refractive error - myopia, and that there was a chorioretinal scar in the right eye, status post PRP (panretinal photocoagulation) OD. The service clinician also noted he was an excellent candidate for another procedure, the PRK (photorefractive keratectomy). In another consultation dated July 2004, at the service Refractive Surgery Center, the Veteran again denied experiencing dry eye. His surgery goal was to improve his vision. This consultation also noted his history of having had the PRP in the right eye - before service - in either 1999 or 2000 in Ecuador. The service clinician also assessed stigmatism and myopia. Despite many references in the Veteran's statements to having had the PRK (right eye surgery) in July 2005, the surgery report is dated in the STRs as August 2004. Another document in the STR's informed the Veteran of various preparations before the surgery and his limitations after the surgery and this document as well listed the date of the PRK as scheduled for August 2004. In the six month post-operative examination, dated February 2005, the Veteran reported his chief complaint was dry eye, right eye only. The uncorrected visual acuity for the right eye was now 20/60. The service clinician assessed a normal status post PRK examination, but noted the Veteran may be considered for enhancement in six months time. The Veteran completed a Report of Medical Assessment in March 2006. He reported only that he had had eye surgery "a year ago". The service clinician noted the PRK was in July 2005 and that it went well and that there were no complications. In a Report of Medical History completed in April 2006 for the purpose of separation, the Veteran again denied any eye trouble. He reported that he had worn contact lenses before the PRK in 2004 and that the PRK was performed because his use of glasses and contacts had interfered with his duties. The service clinician's notes, following the Veteran's report, again dated the PRK to July 2005 and observed there were no complications or complaints. While the Veteran had used contact lenses prior to the surgery, the service clinician noted he now used reading glasses. The Board finds that the Veteran did have PRK or right eye surgery, though the surgery was performed in August 2004 and not July 2005. The Veteran did report at the six month follow-up (February 2005) that his chief complaint was dry eye in the right eye. Though the Veteran did not separate from service until nearly a year after that post-operative follow-up, and during that time the Veteran did seek medical attention for other disorders without reporting any complaints that his right eye experienced dry eye or any other symptom, the Veteran did report to the service clinician six months after the PRK that he had been experiencing dry eye in the right eye. Giving every benefit of the doubt to the Veteran, the Board finds that the Veteran experienced the chronic symptoms in service of dry eye in the right eye following the PRK surgery that had been performed in August 2004. The Veteran submitted his claim in July 2006 following service separation and was afforded a VA eye examination in August 2006. To this VA eye examiner the Veteran presented yet another version of his history. At this time he reported having had surgery on his right eye in 1998 because he experienced bleeding and that he had laser surgery after that. He also reported having experienced decreased vision since. He also dated the PRK to 2005 and reported intermittent right exotropia. He used artificial tears as needed and denied any other ocular history. Exotropia is "strabismus in which there is permanent deviation of the visual axis of one eye away from that of the other, resulting in diplopia; called also divergent or external strabismus, and walleye." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 669 (31st ed.2007). Thought the VA examiner conducted an objective examination, and reached the assessment of status post PRP, right eye, status post PKR, right eye, refractive error and intermittent right exotropia, the 2006 VA examiner did not give an opinion regarding whether any assessment was related to the in-service PKR surgery. The Board also observes that the right eye exotropia was not found, or reported, again in the record. The Veteran submitted private treatment reports dated in 2007. In March 2007 he reported itchiness in the eyes; however there was no reference to his having had eye surgery in service and the Veteran did not attribute this one-time report to any eye surgery, but instead, in April 2007, complained of sinus problems and face pain because of his sinuses. At his RO hearing in February 2009 the Veteran reported that his right eye was dry all the time, that his right eye itched, and that his right eye was painful. The Veteran reported that he used artificial tears in his right eye. The Veteran also reported that immediately following the 2005 PRK surgery, his vision had improved; however, at the time of his RO hearing the Veteran reported that his right eye vision was sometimes blurry and that his visual acuity had deteriorated. The Veteran also reported that he had begun to wear glasses again to correct his deteriorated visual acuity. The Board notes that the Veteran is competent to state when he first experienced symptoms in his right eye and that the symptoms have continued since service. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). In May 2010 the Veteran was afforded another VA eye examination. He reported his vision had decreased since the PRK surgery and that had experienced dry eye in the right eye. He again reported having had a stroke in his right eye, now at age 15 and that he underwent surgery, now in Spain, to relieve fluid from the eye. He used artificial tears twice a day. The VA examiner found his uncorrected right eye visual acuity was 20/60. The VA examiner assessed scars, status post PRP, right eye, status post PRK, right eye, and dry eye. In a 2011 addendum opinion, the same VA examiner noted that he had reviewed the claims file and there the PRP had been described as a procedure performed in Ecuador in either 1999 or 2000. The examiner noted the July 2004 service examination found normal lacrimation and that dry eye did not appear chronic on examination. To only one private clinician of record did he report itchiness in his right eye in 2007, though he did not report this symptom to either VA examiners in 2006 or 2010. As well, though the Veteran reported to the DRO during the 2009 hearing that his vision had declined following surgery, the Board observes that the uncorrected visual acuity found in the 2010 VA eye examination for the right eye, 20/60, was the same uncorrected finding for visual acuity noted in February 2005, at the six-month follow-up after the in-service PRK. Further, there is no medical opinion that found either of these reported symptoms to be etiologically related to the in-service PRK surgery. The Board finds that the evidence regarding the dry eye disorder to be in equipoise. The Veteran did report as his chief complaint in February 2005, six months after the PRK surgery of August 2004 that he experienced dry eye in the right eye. The service clinician noted this complaint in the follow-up evaluation. The Board infers that the Veteran experienced chronic symptoms of dry eye at the least during that period. On the other hand, during the March and April 2006 separation assessments and Report of Medical History, the Veteran made no such complaint and the service examiners assessed no complications, at all, from the PRK surgery. However, within mere months after separation from service, the Veteran submitted a claim seeking service connection for the residuals of the PRK surgery and he reported to the August 2006 VA examiner that he used artificial tears. He made the same report to the 2010 VA eye examiner. The Board finds that the evidence regarding whether the Veteran's reported dry eye disorder in the right eye, as a residual of the PRK, is related to service is at least in equipoise. When there is approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, as the evidence is at least in equipoise, the benefit of the doubt doctrine is applicable, and the Veteran prevails. The claim for service connection for a dry eye disorder of the right eye, as a residuals of right eye surgery, is granted. ORDER Service connection for dry eye of the right eye, as a residual of right eye surgery, is granted. REMAND The Board ordered additional development of the appeal seeking entitlement to an initial disability rating in excess of 10 percent for lumbar strain in the April 2010 remand. Though the development ordered by the Board was accomplished, specifically, the Veteran was afforded a VA spine examination and the VA treatment records were updated through to 2010, the appeal for an increased disability rating was not readjudicated, and no supplemental statement of the case was prepared or issued to the Veteran. As the RO/AMC has not readjudicated this evidence in regard to the current issue on appeal in a supplemental statement of the case (SSOC), a remand pursuant to 38 C.F.R. § 19.31(c) (2011) is required. Accordingly, the case is REMANDED for the following action: The claim for an initial disability rating in excess of 10 percent for lumbar strain should be readjudicated. If the claim remains denied, the RO/AMC should issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claim and allow an appropriate period of time for response. The SSOC must specifically refer to the evidence received since the last SSOC in September 2009. The Veteran has the right to submit additional evidence and argument on this matter. 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. 2011). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs