Citation Nr: 1315492 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 08-09 164 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to service connection for a bilateral eye disability, variously classified, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from November 1994 to November 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the VARO in Denver, Colorado, that denied entitlement to the benefit sought. Jurisdiction of the case was transferred to the Montgomery RO in July 2009. The Veteran testified at a travel board hearing before a Veterans Law Judge sitting in Montgomery in June 2010. Additional evidence was submitted at the hearing, along with the Veteran's waiver of a right to initial review by the RO. The case was previously before the Board in August 2010 at which time it was remanded for further development. The requested actions have been accomplished to the extent possible and the case has been returned to the Board for appellate review. The Judge who conducted the June 2010 hearing is no longer employed by the Board. The Veteran was sent a letter in February 2012 informing her that she could testify at another hearing should she so desire. 38 C.F.R. § 20.717 (2012). She was asked to inform VA as to whether she wanted another hearing. She did not complete the form. However, received in March 2012 was a communication in which she signed a statement that she had received a supplemental statement of the case and had no additional evidence with regard to her appeal that she wanted to submit. She asked the Board to proceed with adjudication of her appeal. FINDINGS OF FACT 1. Diabetic retinopathy is related to service connected diabetes mellitus. 2. A bilateral eye disability other than diabetic retinopathy is not attributable to the Veteran's active service or causally related to the service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. Diabetic retinopathy is proximately due to or the result of service-connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (a) (2012). 2. The criteria for service connection for a bilateral eye disability other than diabetic retinopathy are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 as amended (VCAA) and its implemented regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (a) (2012). As the Board is granting the claim for diabetic neuropathy, further discussion of the VCAA with regard to that matter is not necessary. As for a bilateral eye disability other than diabetic neuropathy, the Board finds there has been essential compliance with the mandates of the VCAA throughout the course of the appeal. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of the 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. VCAA notice should be provided to a claimant before the initial RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 (b) apply to all five elements of a service connection claim. Those elements are: (1) Veteran status; (2) the existence of a current disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of a disability award. See Dingess/Hartmann v. Nicholson, 19 Vet. App. 473 (2006). A review of the claims file discloses the Veteran has received all required notice, has had a meaningful opportunity to present evidence that would help her develop her claim, and is not prejudiced by any technical notice deficiency along the way. See Cartright v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). She has been sent appropriate VCAA orders as recently as November 2010. The claim was most recently adjudicated in a December 2011 supplemental statement of the case. Regarding the duty to assist, VA has also satisfied its obligation in terms of obtaining all potentially relevant evidence concerning the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records, VA medical records, and identified private medical records have been obtained. The Veteran has also been provided a VA compensation examination, including obtaining a medical nexus opinion concerning the etiology of the bilateral eye disability for which service connection is being sought. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The medical nexus opinion obtained is responsive to the matter of causation, so additional examination and opinion is not needed. The Veteran had the opportunity to provide testimony in her own behalf with regard to the disability at issue before a Veterans Law Judge conducting a travel board hearing at the Montgomery RO in June 2010. A transcript of the RO proceedings is in the claims file. The Judge explained the issue on appeal, and suggested that submission of evidence for the issue of consideration was addressed and the pertinent evidence was discussed. Neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103 (c) (2), nor did either refer to any prejudice in the conduct of the hearing in 2009. The RO focus of the elements necessary to substantiate the claim and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate the claim for benefits. Accordingly, the Board finds that the presiding Judge complied with the duties set forth in 38 C.F.R. § 3.103 (c) (2). In view of the foregoing, appellate review may proceed without prejudice to the Veteran. See Barnard v. Brown, 4 Vet. App. 384 (1993). The Board finds it difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence she should submit to substantiate her claim. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001). Indeed, in a communication dated in March 2012, the Veteran stated she had no other information or evidence to submit. She wanted her case decided by the Board as soon as possible. Law and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in service incurrence or aggravation of a disease or injury; and (3) the causal relationship, that is, a nexus, between the claimed in service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Pursuant to 38 C.F.R. § 3.310 (a) disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. See Evans v. West, 12 Vet. App. 22, 29 (1998). (Noting requirements for establishing service connection on a secondary basis). In order to establish a secondary service connection claim, the claimant must show: (1) the existence of a current secondary disability; (2) the existence of a service-connected disability; and (3) evidence that the service-connected disability proximately caused the secondary disability. 38 C.F.R. § 3.310. A claimant may also establish secondary service connection by demonstrating that a current secondary disability was aggravated or worsened by the already worsened by the already service-connected disorder. Allen v. Brown, 7 Vet. App. 439, 448 (1995). (When aggravation of a Veteran's nonservice connected [secondary] condition is proximately due to or the result of a service-connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability (but only that degree) over and above the degree of disability as shown prior to the aggravation); Libertine v. Brown, 9 Vet. App. 521, 522 (1996) ( additional disability resulting from aggravation of a nonservice-connected [secondary] condition by a service-connected condition is also compensable under 38 C.F.R. § 3.130 (a)). If the claimant succeeds in establishing service connection for a secondary condition, "the secondary condition shall be considered a part of the original condition." 38 C.F.R. § 3.310 (a). Factual Background and Analysis The Board has comprehensively reviewed all the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases in support of its decision, there is no need to discuss in detail each and every piece of evidence submitted by the Veteran on his own behalf. See Gonzales v. West, 218 F.3d. 1378, 1380, -81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has ignored pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, (2000) (The Court requires only that the Board discuss its reasons for rejecting evidence favorable to the Veteran). A review of the service treatment records is without reference to complaints or findings indicative of the presence of a bilateral eye disability. The post service medical evidence includes the report of a VA outpatient visit on one occasion in October 2003. A review of the record since that time reveals VA and private treatment records dating from 2003, with the Veteran having complaints of fluctuating vision problems including blurred vision and decreased visual acuity. Clinical examination of the eyes in April 2004 disclosed the absence of any abnormalities, including optic atrophy or diabetic retinopathy. Treatment records dated through 2005 continued to note the absence of diabetic neuropathy. In June 2006 an optometrist, F. U., M. D., diagnosed the Veteran as having background diabetic neuropathy involving the left eye. He stated that the Veteran complained of blurred distance vision and had a history of unstable blood sugar levels. He indicated that she had refractive error in both eyes and explained that unstable blood glucose levels could cause fluctuation in her vision. He explained it was unclear as to what level of refractive error directly resulted from the Veteran's diabetes. The Veteran was accorded a VA examination in February 2007. At that time she reportedly expressed no complaints with regard to visual symptoms. The examination was negative for any identified eye abnormalities, except for decreased uncorrected visual acuity. The examiner noted the absence of optic atrophy in each eye. The examiner concluded that the Veteran did not have diabetic retinopathy. Subsequent medical records show that in December 2009, following the discovery of bilateral atrophic retinal holes, lattice degeneration, and cataracts, the Veteran underwent prophylactic encircling retinoplexy with laser repair of a retinal detachment in the right eye, and prophylactic encircling retinoplexy in the left eye. Subsequent to the Board's remand, the Veteran was accorded an eye examination by VA in February 2011. The claims file was reviewed by the examiner. The Veteran gave a history of having laser treatment in both eyes in 2009, including for some type of retinal tear or hole in the right eye. She expressed no complaints regarding her eyes or vision at the present time. Following examination she was given the following assessments: diabetes mellitus with mild nonproliferative diabetic retinopathy in both eyes; atrophic hole in the right eye, noted as being "not as least as likely not secondary to diabetes mellitus"; mild dry eye syndrome involving both eyes. In view of the assessment following the February 2011 examination that the Veteran had diabetes mellitus with diabetic retinopathy in both eyes, the Board finds that the Veteran has a disability that is proximately due to or the result of service-connected disease, that being the diabetes mellitus. However, the Board finds that there is no other disability involving the eyes that is related to service under any theory. Notation was made at the time of the February 2011 eye examination that the Veteran had an atrophic hole in the right eye, but the examiner opined this is not at least as likely as not secondary to the diabetes mellitus. There is no medical opinion of evidence to the contrary. There is no showing of the presence of a disability that is secondary to the service-connected diabetes. Accordingly, entitlement to service connection for diabetic retinopathy, but no other eye disorder, is warranted on a secondary basis. There is no other eye disorder for which service connection is warranted under any other theory. ORDER Entitlement to service connection for diabetic retinopathy secondary to diabetes mellitus is granted. ______________________________________________ KELLI KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs