Citation Nr: 1312121 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 09-11 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a bilateral eye disability, to include myopia and photokeratitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from August 2004 to August 2008. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDING OF FACT No eye disorder other than refractive error has been present during the period of this claim. CONCLUSION OF LAW The criteria for service connection for a bilateral eye disability are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 4.9 (2012); VAOGCPREC 82-90. REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that VA's duty to notify was satisfied by a pre-adjudication letter sent to the Veteran in October 2008. The Board also finds that VA has met its duty to assist the Veteran in the development of the facts pertinent to this claim. All pertinent service treatment records, service personnel records, private treatment records, and VA treatment records have been obtained and associated with the record. A VA eye examination and addendum medical opinion were provided in December 2008 and July 2009. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination report and addendum medical opinion in this case are adequate for adjudication purposes. Each examiner considered all of the pertinent evidence of record and the statements of the Veteran, and provided a rationale for the opinions stated, relying on and citing to the records reviewed. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate this claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Congenital or developmental defects, such as refractive error of the eye, including myopia and astigmatism, are not considered disabilities for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. However, if a claimant develops a superimposed disease or injury during service, such superimposed disease or injury may be subject to service connection. VAOGCPREC 82-90. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges that the Court held in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran's eyes were clinically evaluated as normal in his May 2003 service enlistment examination report. Service treatment records are negative for evidence of photokeratitis but show that the Veteran was evaluated for refractive error/myopia and treated with spectacles. Health records dated in May and November 2007 show assessments of refractive error - myopia and astigmatism. Service personnel records show the Veteran's military occupational specialty (MOS) was Security Forces, Journeyman and that he was stationed in Southwest Asia during multiple deployments while on active duty. Private treatment records from Mayo Clinic dated in November 2007 detail that the Veteran sustained injuries in a motor vehicle accident (MVA) that occurred while he was on leave from active duty. Treatment records show summary diagnoses of status post MVA, forehead laceration, occipital laceration, loss of consciousness, alcohol intoxication, and left elbow pain. However, examination of the Veteran's eyes revealed no injury with pupils noted as equal, round, and reactive to light. In a post-service December 2008 VA eye examination report, the examiner noted that the Veteran had an MVA with traumatic brain injury in November 2007 during active duty. The Veteran complained of some distance visual blurring with some spots that move around in his vision. The examiner indicated that his best assessment for the Veteran was myopia and noted a plan for the Veteran to have spectacles. The examiner indicated that other than the fact that the Veteran was myopic with some astigmatism, he did not see any other visual problems which could be related to the accident in question. In a March 2009 statement, the Veteran asserted that his records showed that his eye sight loss occurred during service. He reported his belief that his eye sight loss may be due to photokeratitis from the amount of sun exposure he experienced during his Middle East deployments. In a July 2009 VA addendum medical opinion, the same VA examiner who conducted the December 2008 VA examination was requested to review the claims file and address whether the Veteran's myopia was at least as likely as not related to sun exposure while he was serving as a Security Forces Journeyman. The examiner opined that myopia was not related to any service connected activity but to changes due to the aging process. As an initial matter, based on a thorough review of the evidence discussed above, the Board finds that the totality of evidence fails to support a diagnosis of photokeratitis. As the Board has determined there is no probative evidence establishing a current diagnosis of photokeratitis, a discussion as to whether there exists a medical nexus or causal relationship between military service and such disability is not necessary. While the Veteran currently has myopia and astigmatism as noted in the service treatment records as well as the December 2008 post-service VA examination report, refractive error of the eye is not considered a disability for VA compensation purposes. In addition, evidence of record does not show that the Veteran has any current eye disorder that resulted from a superimposed injury (such as sun exposure) or disease. VAOPGCPREC 82-90 (July 18, 1990). In fact, in the July 2009 VA medical opinion, the VA examiner specifically concluded the Veteran's myopia was not related to any service-connected activity but to changes due to the aging process. Evidence of record also includes statements from the Veteran asserting that he had experienced loss of eyesight that began after sun exposure during active service and that there was a causal connection between his claimed bilateral eye disorder and events in service. The Veteran is competent to describe his in-service recollections of loss of eye sight and sun exposure during service because this requires only personal knowledge as it comes to him through his senses. However, the Veteran does not possess the medical expertise to diagnose a disorder of the eyes. The Board further acknowledges the Veteran's contentions that his current bilateral eye disorder was incurred as a result of events during active service. The Board has found no reason to doubt the Veteran's credibility. Never the less, the etiology of the Veteran's current bilateral eye disorder is a medical question that the Veteran, as a lay person, is not competent to answer. As discussed above, the medical evidence shows that it was not. Accordingly, the Board must conclude that service connection is not warranted for the Veteran's bilateral eye disorder. In arriving at the decision to deny the claim, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. ORDER Entitlement to service connection for a bilateral eye disability, to include myopia and photokeratitis, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs