Citation Nr: 1308733 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 10-39 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a bilateral eye disorder (previously evaluated as myopia) (claimed as vision problems). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from September 1959 to August 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In February 2011, a Board videoconference hearing was held before the undersigned. A copy of the hearing transcript has been associated with the claims file. In June 2012, this matter, along with entitlement to service connection for a right hand condition, was remanded for further development. A December 2012 rating decision granted the Veteran's right hand service connection claim. Consequently, such issue is no longer before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's bilateral astigmatism, mild hypermetropia, and presbyopia refractive error are congenital and developmental in nature, and are not shown to have been aggravated by a superimposed disease of injury. 2. Advanced glaucoma in both eyes; right eye senile cataract; left eye pseudophakia; and mild sensitive retinopathy were not manifested in service and a preponderance of the evidence is against a finding that these eye disabilities are related to the Veteran's service. 3. The slightly incongruous left homonymous quadrantanopsia noted in service is not currently seen. 4. The Veteran has never had myopia. CONCLUSION OF LAW Service connection for a bilateral eye disorder is not warranted. 38 U.S.C.A. § 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303, 4.9 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in February 2009 that fully addressed all notice elements. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file, to include the Veteran's electronic Virtual VA file, contains his service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements, to include his testimony, in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no additional available outstanding evidence has been identified. As noted, the Veteran was afforded the opportunity for a Board hearing in February 2011, and the transcript of the hearing is of record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a Board hearing fulfill two duties to comply with the above regulation. These duties consist of: (1) the duty to fully explain the issues, and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing, the VLJ specifically noted the issue as (at the time) "entitlement to service connection for myopia (vision problems)." The VLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of this claim. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. The VLJ specifically asked the Veteran about whether or not he had incurred an injury to either eye while in the service. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the Board hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that any error in notice provided during the Veteran's Board hearing constitutes harmless error. 23 Vet. App. at 488. Additionally, pursuant to the June 2012 Board remand, the Veteran was afforded a VA examination in June 2012 to determine whether his claimed disorder was related to his military service. The Board finds that the VA examination is adequate because, as shown below, it was based upon adequate review of the pertinent medical history. The VA examiner considered the Veteran's lay assertions and current complaints, and described the claimed disorders in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The Board accordingly finds no reason to remand for further examination. Accordingly, all reasonable efforts have been undertaken by VA with respect to the instant appeal, and no further development is required under these circumstances. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board also finds that there was substantial compliance with the June 2012 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to substantial compliance with a remand order. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to the internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). Specifically in this case, the Board directed the AMC/RO to obtain the Veteran's outstanding Social Security Administration (SSA) records, as well as pertinent VA treatment records dated from July 2010 to present and associate such records with the claims file. Upon remand, VA treatment records dated through June 2012 have been uploaded to the Veteran's Virtual VA file. Furthermore, correspondence from SSA, associated with the claims file, documents that the medical records were no longer available, and as noted, he was afforded a VA examination. Thereafter, the AMC/RO readjudicated the matter in a December 2012 supplemental statement of the case, as directed by the Board. For the above reasons, the Board finds that there was substantial compliance with the June 2012 remand directives. Accordingly, no further remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries, 22 Vet. App. at 104-05. II. Factual Background Initially, the Board notes that all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that service connection is warranted for a bilateral eye disorder. Specifically he contends that when he entered service his eyesight was fine. The Veteran's preinduction May 1958 physical contains a note that he had "defective vision" which was corrected to 20/20 and "not disqualifying." His September 1959 physical documents the same, and again refraction defects were corrected to 20/20. An October 1959 service treatment record documents the Veteran's complaint about difficulty with vision. Another treatment record from 1959 notes a complaint about "broken glasses." There is a visual field examination that documents "slightly incongruous homonymous quadrant anopsia" left side. A November 1960 treatment record indicates that the Veteran continues to have a field defect but it is unlikely to have increased since the previous study and there are little or no changes in symptomatology. On June 1961 separation physical examination it was noted that the Veteran wears glasses, had or has eye trouble, and specifies myopia. Postservice, the earliest treatment record that documents an eye disorder is a private November 2001 letter from San Juan Ophthalmology group which documents the Veteran's poor sight due to venous occlusion of the retina and advanced glaucoma. A June 2009 VA treatment record documents glaucoma. During the February 2011 Board hearing, the Veteran testified that he was never informed prior to service that he had vision problems. He stated that he was given glasses during basic training. He also stated that he did not experience any injuries to either eye during service. On June 2012 VA examination the following eye conditions were diagnosed: advanced open angle glaucoma, senile cataract right eye, pseudophakia [replaced lens] left eye, mild hypertensive retinopathy and pterygium right eye. Objective testing for visual acuity shows bilateral near and distance vision to be corrected to 20/40 or better. There was no diplopia or astigmatism. The Veteran had visual field loss of 15-20 degrees of the central visual field of his right eye and superior and inferior arcuate defects and scotoma affecting at least one quarter of the visual field of the left eye. It was noted that the Veteran was legally blind. The examiner again noted a senile cataract noted on the right eye and evidence of a cataract removal from the left eye. The bilateral open-angle glaucoma requires continuous medication. There had been no incapacitating episodes from the Veteran's eye condition noted in the last 12 months. The examiner rendered the opinion that the Veteran's loss of vision in the right eye was due to senile cataract and refractive error and the loss of vision in the left eye was due to refractive error. The loss of visual field was attributed to advanced open angle glaucoma which had eclipsed the effect of any homonymous visual field defect (such as the slightly incongruous left homonymous quadrantanopsia noted in service). Specifically, the examiner noted that "since the Veteran has such extensive visual field defect, slightly incongruous left homonymous quadrantanopsia is no longer visible. If incongruous left homonymous hemianopsia is present, it is lost into the widespread glaucomatous visual field defect." In the opinion, the examiner noted that the Veteran's refractive error pre-existed his entry into active duty, was not aggravated beyond its normal progression during service, and was corrected to 20/20 during service. The examiner also noted that the refractive disorder was not aggravated by a superimposed disease or injury, as refractive error has no association with visual field defect. Moreover, the examiner opined that the visual field defect noted in service was not secondary to glaucoma as such usually results from a retrochiasmal lesion in the visual pathway. As the cause of the visual field defect was not stated in the service treatment records, the examiner noted she could not opine about the cause or timing of the visual field defect without resorting to speculation. However, she did note that there was no evidence of central nervous system pathology or head trauma noted in the service treatment records which would normally be the cause for this type of visual field defect. She also noted that there was no diagnosis of glaucoma in the service treatment records. Finally, the examiner noted that the Veteran never had myopia. She indicated that the confusion in service may have been due to the way the refraction was documented. III. Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires 1) evidence of a current disability; 2) medical, or in some cases lay evidence, of in-service incurrence or aggravation of a disease or injury; and 3) medical evidence of a link, or nexus between the claimed in-service injury or aggravation and the present disability. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Congenital or developmental defects, refractive error of the eyes, and personality disorders, as such, are not diseases within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. § 3.303(c). When there is an 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. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board concludes that a preponderance of the evidence is against the Veteran's claim that his current bilateral eye disabilities are related to his service. The evidence shows that the Veteran entered active duty with a refraction defect that was corrected to 20/20 that was not aggravated by military service. Refraction error is considered a congenital or developmental condition and it is generally not service-connected. While he alleges that his vision disability was aggravated by duties in service, there is no evidence supporting such allegations. Specifically, the June 2012 examiner opined that there was no evidence that shows that the pre-existing refractive error was aggravated by a superimposed disease or injury as it has no association to visual field defect. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error, even if visual acuity decreased in service, as it is not (as previously noted) a disability entitled to service connection as it is congenital in nature. 38 C.F.R. §§ 3.303(c), 4.9; VA ADJUDICATION PROCEDURE MANUAL M21- 1MR, pt. III, subpt. iv, ch. 4 § B, 10d. The Veteran's service treatment records do indicate that he had a visual field defect noted during service whose etiology and date of onset cannot be ascertained without resorting to speculation. The Board notes that based upon the contemporaneous medical records, however, the examiner was able to opine that the small decrease in the visual field from that condition was totally subsumed by the visual field contraction caused by the nonservice-connected, advanced open-angle glaucoma. Thus the necessary medical nexus is not found. Regarding the Veteran's other eye conditions, there is no evidence that the Veteran's cataracts, glaucoma, current mild sensitive retinopathy. They were not manifested in service. He has not submitted any evidence suggesting they might be related to service. The Veteran's beliefs that his current eye disabilities are related to events during his service are not competent (medical) evidence, as he is a layperson, and lacks the training to opine regarding medical etiology. The question is a complex medical question not capable of resolution by lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hence, a preponderance of the evidence is against the Veteran's claim of service connection for a bilateral eye disability, and it must be denied. ORDER Service connection for a bilateral eye disorder (previously evaluated as myopia) (claimed as vision problems) is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs