Citation Nr: 1312622 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 06-02 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an eye disorder, to include as secondary to service-connected diabetes mellitus Type II (DM). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from September 1969 to April 1972. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a January 2004 rating decision of the Department of Veterans Affairs (VA) regional office in Waco, Texas (RO). The Board has remanded this case back to the RO for additional development several times. The Board remanded the case in June 2011 for an addendum to a March 2010 VA opinion. Most recently, the Board remanded the issue on appeal to the RO in August 2012 to obtain an additional addendum opinion on whether the Veteran's eye disability was aggravated by his service-connected DM. An appropriate VA evaluation was obtained in October 2012. Consequently, there has been substantial compliance with the June 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). Although additional VA treatment records dated through September 2012 were added to the record and not referred to in the February 2013 Supplemental Statement of the Case, these records are either duplicative or cumulative of evidence previously considered by the RO. Consequently, the evidence is not "pertinent" and the case does not need to be remanded to the RO for consideration of this evidence. See 38 C.F.R. §20.1304(c) (2012). The Veteran testified at a personal hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO in April 2008, and a transcript of the hearing is of record. FINDING OF FACT The Veteran does not have an eye disorder that is either related to his military service or to a service-connected disability. CONCLUSION OF LAW The Veteran does not have an eye disorder that was incurred in or aggravated by active military service or that is secondary to service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in July 2003, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection. In compliance with the duty to notify, the Veteran was informed in a March 2006 letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. Additional relevant private evidence was subsequently added to the case after the letter. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. VA eye evaluations, with nexus opinions, are of record, with the most recent opinion dated in October 2012. 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 opinions obtained in this case are adequate, as they involve review of the claims file, relevant examination of the Veteran, and an opinion on whether the Veteran has an eye disorder due to service or to service-connected disability. Accordingly, the Board finds that VA's duty to assist in obtaining a VA examination or opinion with respect to the issue of service connection for an eye disorder has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issue decided herein. The Veteran has been given ample opportunity to present evidence and argument in support of his claim, including at his April 2008 travel board hearing. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. The Veteran was assisted at the hearing by an accredited representative from Disabled American Veterans. The representative and the VLJ asked questions to ascertain the extent of any in-service event or injury and whether any current disability is related to service or to service-connected disability. They also asked questions to draw out the current state of the Veteran's disability. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The 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 service connection. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Analysis of the Claim The Veteran seeks service connection for an eye disability. He contends that he has an eye disorder incurred in or aggravated by service or caused or aggravated by his service-connected DM. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Moreover, in the case of hypertension, cardiomyopathy, and neuropathy, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a disorder, 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); Pond v. West, 12 Vet. App. 341, 346 (1999). . Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2012) . This includes disability made chronically worse by service-connected disability. Allen v. Brown , 7 Vet. App. 439 (1995). The Veteran's service treatment records reveal that he had a swollen right eye in July 1970 after being beaten up; he was given an eye patch. There were no subsequent eye complaints in service. According to his undated separation medical evaluation report, his eyes were normal; his uncorrected distant and near vision was 20/20 bilaterally. VA treatment reports reveal that the impression in May 2003 was recurrent headaches, status post right eye retinal tear in 1970. It was noted in September 2003 that the Veteran had visual problems, which were not related to DM. It was reported on VA evaluation in September 2003 that the Veteran had a history of DM, peripheral neuropathy, and right eye injury with a corneal abrasion from a metal rod. He complained of floaters that had worsened since he was found to have diabetes. The diagnoses were no diabetic retinopathy; history of right corneal abrasion, without sequelae; drusen of the eyes; and vitreous degenerative of the eyes, not related to diabetes. It was concluded on VA evaluation of the eyes in November 2005 that the Veteran had mild drusen of both eyes. No diabetic retinopathy or diabetic eye disease was found. The Veteran testified in support of his claim at a RO in May 2006. He testified at his travel board hearing in April 2008 that he initially noticed an eye problem shortly after service separation and that he was diagnosed in the mid 1980's with macular degeneration. The Veteran was provided a VA eye evaluation, which included review of the claims file, in March 2010. The diagnoses were no diabetic retinopathy; blepharitis with meibomian gland dysfunction, not related to trauma or DM, with dry eye symptoms; and dry macular degeneration of the eyes, not related to DM or trauma. The examiner concluded that there was no association between the Veteran's bilateral macular retinal pigment atrophy (drusen) and the right corneal abrasion the Veteran incurred in service. The examiner who evaluated the Veteran in March 2010 provided an additional opinion in August 2011 in response to the Board's June 2011 remand. The examiner concluded, after review of the record, that there were no findings of eye disability on the prior examination that were related to either service trauma or service-connected DM. The examiner noted that she had spoken to a retinal specialist who said that there was no association between drusen/dry macular degeneration and either the Veteran's service eye trauma or DM. The examiner pointed out that drusen/dry macular degeneration is a binocular finding and that the Veteran's service eye trauma was unilateral. In response to the Board's August 2012 remand, this same VA examiner concluded in October 2012, after review of the record, that the Veteran did not have an eye disorder that was aggravated by his service-connected DM. The examiner noted that the Veteran's complaint of progressively decreasing near vision was due to developing presbyopia, which was related to aging and not to DM or corneal abrasion. Refractive errors of the eyes are not diseases or injuries within the meaning of the applicable legislation. See 38 C.F.R. § 3.303(c), 4.9 (2011); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Myopia, more commonly known as nearsightedness, is defined as an error of refraction. See Dorland's Illustrated Medical Dictionary 1094 (28th ed. 1994). Presbyopia, more commonly known as farsightedness, is defined as impairment of vision due to advancing years or old age. Id. at 1349. Myopia, presbyopia, and astigmatism are refractive orders of the eyes that are not generally eligible for disability compensation. See 38 C.F.R. § 3.303(c). The Board notes that although the Veteran injured his right eye in service as the result of trauma, there were no subsequent eye complaints in service and no eye disorder was reported on separation medical examination, at which time his uncorrected distant and near vision was normal. The initial post-service medical evidence of an eye disability was not until many years after service discharge. Moreover, the VA opinions on file, which are based on a review of the record and examination of the Veteran, are against the claim for service connection for an eye disorder on either a direct or a secondary basis. The evidence does not relate the Veteran's current eye disability to the injury in service or as secondary to his diabetes. Although the Veteran is competent to report his eye symptoms, he is not competent to report that he has an acquired eye disorder due to service or to service-connected diabetes. The diagnosis of a specific eye disability or the determination of etiology is a medical question and requires medical expertise. A layperson is not competent to address these issues. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Circ. 2007). Because the preponderance of the objective and probative medical evidence of record is against the Veteran's claim for service connection for an eye disorder, and it must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for an eye disorder is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs