Citation Nr: 1316689 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-32 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for bilateral eye condition, status post-surgery. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from February 1996 to June 2004 and July 2006 to May 2007. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also her file on the "Virtual VA" system to ensure a total review of the evidence. The Board notes that the issues of service connection for depression, tailbone condition, bilateral tinea pedis, human papilloma virus, temporomandibular joint disorder, and acne of face, back and chest were all withdrawn in a March 2012 written statement by the Veteran. The Veteran additional withdrew her claim for service connection for anemia at her hearing that same month. As such these claims are no longer before the Board. 38 C.F.R. § 20.204. Therefore, the only remaining issue before the Board is entitlement to service connection for a bilateral eye condition. FINDING OF FACT The weight of the evidence of record establishes the Veteran's current bilateral eye condition is the natural result of her surgical treatment in service for a preexisting eye disorder, which was not otherwise aggravated by her military service. CONCLUSION OF LAW The criteria for service connection for a bilateral eye condition have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "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, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The Veteran is currently seeking service connection for a bilateral eye condition. She specifically alleges she has double vision, poor night vision, and glare as a result of eye surgery while in service. As will be discussed below, the Board finds her current eye condition is not the result of her active military duty, but is rather the natural result of her eye surgery during service for a preexisting condition. Pertinent regulations provide that a pre-existing disability or disease will be considered to have been aggravated by active military service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). The Veteran's service treatment records have been reviewed. On the Veteran's entrance exam in October 1995 the examiner noted she had worn glasses or corrective lenses since she was sixteen due to myopia, or nearsightedness. An eye exam from May 1996, before she entered service, revealed her distance vision was 20/400 bilaterally, and near vision was 20/50 in her right eye and 20/40 in her left eye without her corrective lenses. As such, the Veteran's nearsighted condition clearly pre-dated her military service. In addition VA regulations note that congenital or development defects, including refractive error of the eye, are excluded from service connection. 38 C.F.R. § 3.303(c). Therefore the Veteran's pre-existing myopia is not due to her military service. Service treatment records from September 1996 found that the Veteran would be a good candidate for radial keratotomy (RK) surgery to correct her nearsightedness. The surgery was scheduled for December 1996. Service treatment records also include an undated consent form signed by the Veteran for the RK procedure in her left eye which indicated possible complications may include under-correction, over-correction, astigmatism, infection, partial to complete loss of vision, glare, and fluctuation of vision. Service treatment records note both surgeries were performed in December 1996 and no complications resulted from the procedure in either eye. Follow-up treatment records from one week, two weeks, and one month post-surgery all note the Veteran was doing very well following her procedure. Service treatment records also include an eyewear prescription for glasses from March 1998. In an exam from December 1998 the examiner noted the Veteran had bilateral RK with no sequelae (complications) and she only uses glasses for driving in the evening. Throughout the remainder of her military service the Veteran consistently reported decreased night vision and continued need to wear glasses while driving at night. However, eye examinations conducted throughout the remainder of her service consistently find the Veteran's vision was improved when compared with her vision upon entry. For example, in a June 2000 examination her distance vision was 20/20 bilaterally both near and at distance. In July 2006 her vision was 20/30 bilaterally at distance and 20/30 near in her left eye, 20/20 near in her right. Although this examination suggests the Veteran's vision acuity had decreased since January 2002, her vision was still better than at entry. In an April 2007 post-deployment report of medical history the Veteran reported she had a history of vision corrective surgery and wore contact lenses or glasses, but she denied having an eye disorder or other eye trouble. Based on the foregoing the Board finds the service treatment records establish that the Veteran was nearsighted before entering military service. While in service she elected to have a procedure to improve her eyesight which was performed without complication. The records establish the surgery improved the Veteran's eyesight, although she did experience decreased night vision and continued to need to wear glasses while driving at night. The record also establishes the Veteran was informed that similar continued vision impairment may have occurred as a result of the RK procedure. The Veteran filed her current claim for service connection three months after separating from military service. In a written statement in October 2007 she asserted the eye surgery she had while on active duty permanently damaged her night vision, as well as gave her an abnormal glare and double vision at close distances. Throughout the record the Veteran has consistently reported trouble with night vision, increased glare, and double vision. As a lay person, the Veteran is considered to be competent to report what comes to her through her senses, such as through her eyesight. Layno v. Brown, 6 Vet. App. 465 (1994). As such, the Board finds the Veteran's statements are competent to report she currently has a bilateral eye condition. The Veteran also consistently asserted that her current bilateral eye condition was due to her RK surgery while in service. In her October 2009 written statement the Veteran asserted the surgery was not 'elective' but suggested solely by the Navy. In her March 2012 hearing the Veteran testified the Navy suggested the vision correction surgery so that she could better perform her duties as a firefighter without having to wear glasses under the mask or, alternatively, have her eyes dry out while wearing contacts under the mask. In February 2009 the Veteran was provided with a VA examination to evaluate her eye condition. The Veteran reported being diagnosed with glare and visual doubling after radial keratotomy refractive surgery. The examiner noted that the Veteran's vision was normal, and did not reveal diplopia. The examiner opined the Veteran had "regression of radial keratotomy procedure and glare with visual doubling from the procedure." In October 2009 the Veteran sought treatment with a private physician for her bilateral eye condition. The physician noted the Veteran's complaints of double vision, which were worse when she was tired, glare, and problems driving at night. The physician gave the Veteran a prescription for glasses with phoenix lenses with an antireflective coating, which she opined may be beneficial for the Veteran's condition. In December 2010 the Veteran was again seen by a private physician regarding her eye condition. The Veteran reported her symptomatology consistent with the record. The physician assessed the Veteran was status post RK with diagnosis undetermined. No additional private treatment records were submitted. As such, the Board finds private treatment records confirm the Veteran currently has a bilateral eye condition, but do not provide an opinion as to the etiology of this condition. In November 2012 the Board referred the Veteran's claim for an expert medical opinion regarding whether the Veteran's current complaints were the usual effects of a RK surgery, or did they indicate the underlying eye condition had been aggravated because of the procedure. In December 2012 a specialist in ophthalmology reviewed the Veteran's file and prepared a report. The specialist noted the Veteran's history consistent with the record. She reported that a long-term study published in 1994, two years before the Veteran had her surgery, found that 43 percent of patients experienced a hyperopic shift of +1.00 shift or more diopters between six months and ten years post-surgery. The specialist opined the Veteran "certainly demonstrates" that shift, causing her to need glasses for reading and other tasks at close distances. She continued the Veteran's headaches were likely the result of her need for bifocals, which is common among people over forty years of age, such as the Veteran. The specialist also opined the Veteran's night glare was most likely due to the Veteran seeing the edges of the incisions when her pupils dilated. The specialist opined this condition has likely been present since the procedure. She also noted that double vision may be due to the Veteran straining to read up close without the use of bifocals, which caused her eyes to tire and the muscles to temporarily relax. She opined this is most likely a transient phenomenon related to eye strain and therefore cannot be shown to have a definite relationship to her in-service procedure. In summary, the specialist opined that she saw no indication that the Veteran's in-service surgery had any unusual or unanticipated results. In support of this opinion she noted the surgery was well performed and no complications were noted. She also noted the RK procedure was the best vision correcting procedure available in 1996, and did improve the Veteran's vision for many years without the need for glasses. She further opined the Veteran's current complaints are secondary to the natural course of her RK surgery and not due to any active duty assignments. The Board finds this outside medical opinion was based on a thorough and accurate understanding of the Veteran's background and the specialist provided a clear rationale for her opinion. As such, the Board finds this opinion is afforded great probative weight. As discussed above, the VA regulations provide that the usual effects of surgical treatment in service, which improved a condition which was incurred before service, will not be considered service connected unless the disease or injury was otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). In other words, if the Veteran's current bilateral eye condition is a usual effect of the surgery, which improved her pre-existing nearsightedness, it will not be considered service connected unless the underlying eye condition was otherwise aggravated by service. Based on all of the foregoing, the Board finds the medical evidence of record establishes the Veteran's current bilateral eye condition is due to the natural progression of her in-service RK procedure. Both VA examiners found the Veteran's current condition was related to the progression of the Veteran's RK procedure, while the private physicians did not provide any opinion regarding the etiology of the Veteran's current condition. None of the medical opinion of record suggests the Veteran's current bilateral eye condition was otherwise caused or aggravated by her active military service duties. More persuasively, the Veteran herself has continually related her current condition to her in-service procedure, and not to her active service duties. As such, the Board finds the Veteran's current bilateral eye condition is the natural result of her in-service RK procedure. The Board also finds the medical evidence of record establishes that the in-service RK procedure did improve the Veteran's nearsighted vision, which existed before she entered service. As discussed above, eye exams performed in service reflect the Veteran had better vision acuity after the procedure than when she entered service. This finding was again reiterated by the outside specialist who reviewed the Veteran's file in December 2012. As such, the Board finds the Veteran's claim meets all the conditions contemplated by 38 C.F.R. § 3.306(b)(1). The Veteran's current bilateral eye condition, including complaints of glare, poor night-vision, and double vision, are related to her in-service surgical procedure. This in-service procedure ameliorated the Veteran's poor near vision which existed before enlistment. Finally, the evidence of record does not establish the Veteran's eye condition was otherwise aggravated by her active military service. Therefore, under the regulations, her current bilateral eye condition is not service connected. The Veteran's claim for service connection for a bilateral eye condition is therefore denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in August 2007, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or 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 issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the 2012 Board hearing, the undersigned Veterans Law Judge specifically asked questions as to any medical opinions the Veteran may have received about the effects of the eye surgery she had during service and where she had received relevant treatment. Moreover, neither the Veteran, nor her representative, has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that any error in notice provided during the hearing constitutes harmless error. As to VA's duty to assist, 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). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was able to testify at a hearing before the Board. The Veteran was also provided with a VA examination (the report of which has been associated with the claims file). The Board finds the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from her, and provided the information necessary to evaluate her disability. The Board notes that in her March 2012 testimony the Veteran asserted that her 2009 examination "came up short." The Veteran asserted that other types of exams could have been performed which would have been better able to diagnose her current condition. However, the Board notes the current evidence of record was sufficient to establish the Veteran had a bilateral eye condition, and her current condition is not in dispute. Rather, service connection was not found due to the cause of the Veteran's current condition, not the severity. As such, the Board finds the Veteran was not harmed by any potential failure to perform additional testing to measure the severity of her current eye condition. However, the Board did determine that the medical evidence was lacking in this case, and, as such, requested an expert opinion. The Veteran was notified in November 2012 when the opinion was sought, and then she was provided a copy of the opinion and an opportunity to respond in January 2013. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. [Continued on Next Page] ORDER The Veteran's claim for service connection for a bilateral eye condition, status post surgery, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs