Citation Nr: 1315396	
Decision Date: 05/09/13    Archive Date: 05/15/13

DOCKET NO.  12-21 032	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota


THE ISSUE

Entitlement to service connection for a bilateral eye condition. 


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

M. Taylor, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  
The Veteran served on active duty from August 1944 to January 1946. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in August 2012 of a Department of Veterans Affairs (VA) Regional Office.  

This case was previously before the Board in September 2012.  The Board granted service connection for bilateral hearing loss and remanded the service connection claim for a bilateral eye condition for further development.  


FINDING OF FACT

A bilateral eye condition is not causally related to active service.  


CONCLUSION OF LAW

The criteria for service connection for a bilateral eye condition have not been met.  38 U.S.C.A. §§ 1110, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).


Duties to Notify and Assist

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  

A June 2010 letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1).  This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claim was subsequently readjudicated, most recently in a March 2013 supplemental statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  See Shinseki v. Sanders, 556 U.S. 396 (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).  

Service treatment records associated with the Veteran's period of active duty service are missing despite reasonable attempts by the RO to obtain them.  In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  

Because of missing records, the analysis below has been undertaken with this heightened duty in mind.  The case law  does not, however, lower the legal standard for proving a claim for 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 claimant.  See Russo v. Brown, 9 Vet. App. 46 (1996).  Given the discussion below, the Board concludes the VA's heightened duty to assist the Veteran, to explain findings and conclusions, and to consider the benefit-of-the-doubt rule, is satisfied. 

VA medical treatment records have been obtained; the Veteran did not identify any additional private treatment records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2).  A VA examination was conducted in February 2013; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4).  The examiner reviewed the claims file and the rationale for the opinion provided is based on objective findings, reliable principles, and sound reasoning.  

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009).  

The case was remanded for additional development in December 2012.  There has been substantial, if not full, compliance with the remand directives.


REASONS AND BASES FOR FINDING AND CONCLUSION

Laws and Regulations

Service connection may be granted for disability resulting from disease or injury incurred or aggravated in service.  38 U.S.C.A. § 1110 (West 2002 & Supp. 2012).  Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces.  38 C.F.R. §§ 3.303, 3.304 (2012).  Service connection may 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). 

Service connection may 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. 

Refractive errors of the eyes are not diseases or injuries within in the meaning of applicable legislation for disability compensation purposes.  See 38 C.F.R. §§ 3.303(c), 4.9 (2011); see also Winn v. Brown, 8 Vet. App. at 516.  Presbyopia is "hyperopia and impairment of vision due to ... old age."  Dorland's Illustrated Medical Dictionary 1349 (28th ed. 1994).  Hyperopia is that error of refraction in which rays of light entering the eye parallel to the optic axis are brought to a focus behind the retina, as a result of the eyeball being too short from front to back ... called also farsightedness and hypermetropia."  Id. at 797. 

When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

Analysis

The Veteran asserts entitlement to service connection for a bilateral eye disorder, to include as a result of navigational equipment used during service.  His service treatment records are unavailable.  As noted, under these circumstances there exists a heightened obligation for VA to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule.  See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)).  The Board's analysis has been undertaken with this heightened duty in mind.  

The February 2013 VA examination report reflects diagnoses of posterior vitreous detachment, bilaterally; right eye cataract and epiretinal membrane; and left intraocular lens secondary to cataract extraction.  The examiner stated that the Veteran's eye conditions are exceedingly common among individuals of his age, and likely due to the normal aging process.  

Although a history of sty affecting both eyes for many years after separation was noted, the Veteran denied having a sty for many years, and the examiner reported no evidence of any current sty.  A small epiretinal membrane outside of the fovea of the right eye was noted to produce no loss in visual acuity and no vision related symptoms.  Absent current disability at any time during the relevant period, service connection is not warranted.  See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  

The VA examiner determined that contraction and decreased acuity was attributable to hyperopia, and noted to be unrelated to the diagnosed eye conditions.  Hyperopia involves refractive error of the eyes.  Congenital or developmental defects, including refractive errors of the eyes, are not "diseases or injuries" within the meaning of applicable statutes and regulations.  38 C.F.R. §§ 3.303(c), 4.9, 4.127; accord Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007).  Actual pathology, other than refractive error, is required to support impairment of visual acuity.  Id.  See VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 4, Section B, Topic 10 (December 29, 2007).  

Although a history of floaters for several years was noted, the examiner specifically concluded the Veteran's eye conditions are likely due to the normal aging process, noting no indication that navigational equipment could cause his current eye conditions.  

The Veteran is competent to report his symptoms and lay evidence may establish the existence of a current disorder capable of lay observation.  Even assuming the Veteran had eye symptoms during service, and to the extent that he has attempted to establish continuity of symptoms based on lay statements, the diagnosed bilateral eye conditions are not subject to the provisions of 38 U.S.C.A. § 1101 or 38 CFR 3.303(b).  See Walker v. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed.Cir. Feb. 21, 2013).  

The October 2012 VA opinion is consistent with the February 2013 opinion.  Although the October 2012 examiner erroneously referenced normal findings at separation even though service records are unavailable, the remarkable gap between separation and the initial documented complaints in regard to the eyes then and now weighs against the claim.  The competent and probative evidence with respect to causation does not establish the Veteran's bilateral eye conditions are related to service.  

In reaching a determination, the Board has accorded more probative value to the February 2013 VA opinion.  The examiner reviewed the claims file and the rationale provided for the opinion is based on objective findings and reliable principles.  Such is far more probative than the Veteran's remote lay assertions.  


ORDER

Service connection for a bilateral eye condition is denied.  



____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs