Citation Nr: 1319184 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 12-25 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for residuals of right eye injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1954 to May 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was previously remanded by the Board in March 2013 for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran does not have residuals of right eye injury causally related to injury, disease, or other event of his active duty service. 2. Refractive error of the eye is not a disability subject to VA compensation. CONCLUSION OF LAW Residuals of a right eye injury were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 4.9 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 U.S.C.A. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The record shows that in an August 2011VCAA letter, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the Veteran in August 2011, which was prior to the February 2012 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. The August 2011 letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (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). Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The Veteran's service separation examination and VA medical records are associated with the file. The Board notes that the Veteran's STRs (with the exception of a service separation examination report) were apparently destroyed by a fire at the NPRC. Therefore, VA has a heightened duty to assist the Veteran in developing evidence to substantiate these claims. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In accordance with this heightened duty, the Board remanded the case to obtain a medical examination and opinion. The Veteran was afforded said VA examination in March 2013. Thus, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. Legal Criteria, Factual Background, and Analysis The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also 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). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board's analysis will focus specifically on the evidence pertinent to the claim, and what it shows, or fails to show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran is seeking service connection for the residuals of right eye injury in service, to include loss of visual acuity. He stated that while in the army, he was assigned to the signal corps and was responsible for operating the teletype machines. He stated that he was hit in the eye quite frequently with the tapes from the machines during unloading and reloading of the machines. The Veteran also claimed that he injured his eye in-service after falling into a plant. A 1956 service separation examination report is negative for any treatment, complaints, or diagnoses related to the eye. The Veteran's vision was noted as 20/20. Postservice VA treatment records dated from May 2007 note presbyopia and age-related macular degeneration. A March 2012 optometry note reported the same, in addition to drusen. On March 2013 VA eye examination, the examiner noted a history of increasing loss of vision in the Veteran's right eye. The examiner stated that the current evaluations shows macular degeneration in the right eye, but that the exact time this began is not determinable from the history or the record. After a physical examination, upon which he noted refractive error of the eyes, the examiner concluded that the Veteran has nuclear sclerotic cataract, which is age-related. He stated that the Veteran has dry age related maculopathy. He opined that he can find no way that the Veteran's present condition is related to military service or the accident that occurred in the military. The examiner noted that the only history of an eye event in service is when a paper poked the Veteran in the eye. The examiner further noted the Veteran's service separation examination which showed no complaints about the eyes or any degradation of vision. The record reflects that the Veteran has a current diagnosis of nuclear sclerotic cataract and dry age related maculopathy. Refractive effort of the eyes was also noted; however, for purposes of entitlement to benefits, the law provides that refractive errors of the eyes are developmental defects and not disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9; VA Manual M21-1, Part VI, Subchapter II, para. 11.07. Thus, VA regulations specifically prohibit service connection for refractory errors of the eyes unless such defect was subject to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (1990). Accordingly, what is left for determination is whether the Veteran's nuclear sclerotic cataract/dry age related maculopathy is related to service. On the Veteran's service separation examination, his eyes (and opthalmoscopic) were clinically evaluated as normal and his vision was 20/20. This demonstrated that military medical personnel after examining the Veteran were of the opinion that no eye disorders or eye injuries (to include residuals from an eye injury) were present at that time. The Board acknowledges the Veteran's assertions that he injured his eye in service and has suffered residuals since. The Veteran is competent to report the types of symptoms he has experienced and continuity of symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). However, a VA medical examiner, with full knowledge of the Veteran's reports of an eye injury in service and residuals as related to such service, was nevertheless of the opinion that the Veteran's current eye disability is not causally related to service. The examiner specifically noted that the Veteran's current condition is age-related and he could find no reason or evidence to suggest a relationship to service. No medical evidence of record contradicts the March 2013 VA examiner's analysis addressing the nature and etiology of the Veteran's current eye disability, or otherwise relates this disability to service. Additionally, while not determinative by itself, it is also significant that there is no evidence of an eye disability for over 50 years after service. This lengthy period without complaints or treatment after service also suggests that there has not been a continuity of symptomatology. See Maxon v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). After a thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claim for service connection for the residuals of right eye injury in service. Therefore, the appeal in this matter must be denied. ORDER Entitlement to service connection for residuals of right eye injury is not warranted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs