Citation Nr: 1318169 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 08-38 804 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for dry eye syndrome. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from March 1981 to March 2007. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a September 2007 rating decision issued by the Regional Office (RO) in Salt Lake City, Utah. The Board remanded the case for further development in September 2012, and it has now been returned to the Board. The case is presently under the jurisdiction of the RO in Houston, Texas. FINDINGS OF FACT 1. The Veteran is shown as likely as not to have developed dry eye syndrome after the performance of an elective photorefractive keratectomy (PRK) procedure during service. 2. The Veteran is found to have presented credible lay assertions that are sufficient to establish the presence of chronic dry eye syndrome beginning in and continuing after his extensive period of active service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by chronic dry eye syndrome is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306(b), 4.9 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. The VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding defects in timing or content of the notice if they are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was given a letter prior to the initial rating decision in connection with his participation in the Benefits Delivery at Discharge program which explained what the evidence needed to show in order to substantiate a service connection claim. It also explained how VA assigns ratings and effective dates for service connected disabilities. Further, the letter explained how VA would help the Veteran develop evidence in support of his claim. The Veteran was sent another VCAA notice in October 2007, shortly after the initial rating decision, which reiterated this information and provided a more detailed explanation of the types of evidence that could support the Veteran's claim and how VA could help him obtain that evidence. The Veteran's claim was thereafter readjudicated on multiple occasions, most recently in March 2013. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, Tricare records, and the written contentions of the Veteran. The records of the actual PRK procedure are not in the claims file. VA attempted to retrieve records from the Defense Personnel Records Information Retrieval System (DPRIS), but did not uncover any additional service treatment records. The Veteran was requested to submit these records if he had copies of them but he did not do so. The Board concludes from these efforts that the records sought do not exist or that further attempts to obtain the records would be futile. 38 C.F.R. § 159(c)(2). The Veteran was afforded two VA examinations in support of his claim, which, taken together, provide sufficient information for the Board to make a reasoned decision on the Veteran's claim. The latter examination, in December 2012, was conducted in substantial compliance with the Board's September 2012 remand. Also in compliance with the September 2012 remand, the Veteran was sent a letter in November 2012 that requested that he identify any health care providers who treated him for his dry eye and submit any medical records related to his eyes, including the PRK procedure. The Veteran did not submit any additional information or evidence after receiving this letter. As previously noted, VA also made a DPRIS request for additional service treatment records as set forth in the remand. For these reasons, the Board finds that VA satisfied the its duties pursuant to VCAA in this case. The Board also finds that the directives set forth in the prior remand of this case were substantially complied with. Service connection Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases may be granted if manifest to a compensable degree within one year of separation from service; however, dry eye is not one of these chronic diseases. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, the usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, the Veteran entered active service with refractive error. Refractive error is considered a congenital or development defect and as not a disease or injury for VA compensation purposes. 38 C.F.R. § 4.9. At a February 2007 VA examination, performed during service, the Veteran reported undergoing PRK in each eye about two years earlier. Currently, he had dry eye syndrome. He had to frequently use ocular lubricants. The Veteran reported having pain and distorted vision. The eye symptoms consisted of ocular irritation and blurred vision that sometimes got to the point that he could no longer read. After the examination, the diagnosis was that of dry eye syndrome, as evidenced by ocular irritation, blurred vision, and poor tear film production. The examiner opined that the Veteran's dry eyes were at least as likely as not secondary to his PRK surgery. In a September 2007 Notice of Disagreement, the Veteran contended that his dry eye syndrome was "an abnormal complication of [his] PRK." The Tricare treatment records show continuing complaints of dry eye. In a September 2007 treatment record, the Veteran's doctor wrote that he wondered if PRK was the cause of the dry eye so far after the procedure or if it was consistent with the Veteran's family history. On his VA Form 9 the Veteran reported that his doctor told him that the PRK procedure did not cause his dry eye and that dry eye related to PRK would only be present for 6 months after the procedure. He felt that this was a prior condition that surfaced because he was no longer wearing glasses. The Veteran was reexamined in December 2012. In contrast to his earlier statements that his dry eyes were due to PRK, he claimed that he had dry eyes well before the procedure. He claimed having had dry eyes since he was in Iraq in the 1990's. The Veteran reported that his eyes were dry and that he used artificial tears. After examining the Veteran, the examiner found no evidence of dry eye. After a complete review of the evidence in the claims file, the examiner noted that the Veteran had normal refractive error upon enlistment. The PRK procedure was to correct the refractive error. The examiner explained that dry eye was a "common side effect" of PRK, but added that the Veteran had no evidence of dry eye at the time of the examination. While the Veteran contends that he had dry eye prior to undergoing surgery, there is no showing of complaints of dry eye before the Veteran reported having the PRK. The VA examiner in February 2007 indicated that the Veteran had dry eyes that were at least as likely as not the result of the PRK procedure performed in service. The Veteran also has reported that his doctor told him that his dry eye syndrome was not the result of the PRK. To the extent that the evidence is conflicting as to cause of the claimed dry eye syndrome, it is clear that the Veteran exhibited findings of the condition during his period of active service and following his retirement therefrom. Moreover, on review, his lay assertions are found to be credible for the purpose of establishing the chronicity of the claimed dry eye syndrome. Thus, the Board finds the evidence to be in relative equipoise in showing that the Veteran suffers from chronic dry eye syndrome that as likely as not had its clinical onset during his extensive period of active service. In resolving all reasonable doubt in the Veteran's favor, service connection is warranted. ORDER Service connection for dry eye syndrome is granted. ____________________________________________ STEPHEN L.WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs