Citation Nr: 1323592 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 13-11 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Service connection for a bilateral eye condition, to include as due to exposure to asbestos. REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from October 1953 to April 1957. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. 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's refractive error of the eye is a genetic defect, and there is no evidence of superimposed injury during service. 2. The weight of the evidence fails to establish the Veteran's current cataract condition either began during, or was otherwise caused by, his active military service, to include any exposure to asbestos therein. CONCLUSION OF LAW Criteria for service connection for a bilateral eye condition have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(c) (2012); VAOPGCPREC 82-90 (July 18, 1990). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking service connection for a bilateral eye condition. 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, 1131. "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. In this case the Veteran is alleging he had a loss in vision acuity occur during his active duty military service. The Veteran asserts his vision loss was due to his extended assignments monitoring the radar. Throughout the course of the appeal the Veteran has consistently testified that he did not require corrective lenses before military service, but during his active duty with the Navy he was fitted for glasses and has had to wear them since. As a lay person, the Veteran is considered to be competent to report what comes to him through his senses, such as difficulties seeing. Layno v. Brown, 6 Vet. App. 465 (1994). In addition, the claims file includes several written statements of support from friends and family of the Veteran asserting he did not require glasses until during his military service. However, it must be noted that upon entry into service in 1953, the Veteran completed a medical history report, where he checked "yes" next to wears glasses, and the corresponding physical examination report indicates "formerly wore glasses" under the notes section. Regardless, the Board does not doubt the Veteran's consistent and well-documented assertion that he was fitted for glasses during his military service following prolonged periods reading the radar screen. In fact, there is an eye exam report dated in May 1956 showing decreased visual acuity. However, VA regulations provide that "refractive error of the eye . . . are not diseases or injuries within the meaning of applicable legislation" and therefore are not subject to service connection. 38 C.F.R. § 3.303(c). A precedential General Counsel opinion further explains that congenital or developmental defects, including refractive error of the eye, may not be service-connected because they are not diseases or injuries under the law. However, such defects can be subject to superimposed disease or injury during military service and, if so, the resulting disability may be service-connected. VAOPGCPREC 82-90 (July 18, 1990). The Veteran's development of the need to wear glasses during his military service was due to a refractive error of the eye. As such, this condition is considered a genetic defect by VA regulations and not a disease or injury on which service-connection can be granted. The Veteran has not alleged and the evidence does not support that his refractive error of the eye requiring corrective glasses was subject to a superimposed disease or injury during military service. Therefore the Veteran's undisputed need to wear glasses, which developed during his active military service, is not a disability for which service connection can be granted under VA regulations. In his substantive appeal the Veteran expressed disagreement with the VA regulations asserting that if hearing loss can be service-connected than so should vision loss. However, the Board is bound by VA regulations. Moreover, the Court of Appeals for Veterans Claims (Court) has specifically upheld the validity of the VA regulation is question. Cf. Winn v. Brown, 8 Vet. App. 510 (1996). (Holding the regulation providing that certain personality disorders are not diseases or injuries, such as would give rise to compensable service-connected disability, is valid.) Therefore the Veteran's claim for service connection for refractive error of the eye, that is requiring corrective glasses, is denied. In his March 2013 DRO hearing the Veteran himself stated that his claim was primarily for a bilateral eye condition due to prolonged exposure to radar screen, and that his asbestos exposure and later cataracts were only incidental. However, VA has a duty to consider all diagnoses shown by the record when a claim is filed, and he has been diagnosed with cataracts. Although cataracts are a condition for which service-connection could be granted, the evidence of record does not establish the Veteran's cataracts began during, or were otherwise caused by, his military service. Service treatment records do not reflect the Veteran made any complaint of, or sought any treatment for, any cataract condition during his military service. At his April 1957 separation examination the Veteran's eyes were noted to be in normal condition and his vision was 20/20. As such, the Board finds the evidence of record does not establish the Veteran developed cataracts during his military service. Additionally the earliest post-service treatment records included in the claims file reflecting the Veteran had eye problems are from October 1995, almost forty years after he separated from military service. As such, the Board finds the evidence of record fails to establish the Veteran had a chronic cataract condition since shortly after his military service. Additionally, while post-service treatment records diagnosed the Veteran with cataracts, they do not show that this condition was otherwise related to the Veteran's military service, nor does he allege such an opinion has ever been provided. As such, the Board finds the evidence of record does not establish the Veteran's current bilateral cataract condition began during, or was otherwise caused by his military service. Finally, in his May 2012 written statement the Veteran asserted that he was exposed to asbestos dust during military service which resulted in a burning sensation in his eyes. However, even assuming the Veteran was exposed to asbestos during military service; cataracts are not a condition associated with exposure to asbestos. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Topic 9. Additionally, the record does not include any medical evidence otherwise linking the Veteran's cataracts to his alleged asbestos exposure. Therefore, the evidence of record does not establish the Veteran's cataract condition is due to his alleged asbestos exposure. Based on the foregoing the Board finds the preponderance of the evidence weighs against finding that the Veteran's current cataract condition began during, or was otherwise caused by, his military service. As discussed above, refractive error of the eye, or requiring glasses, is not an injury for which service connection can be granted. Therefore the Veteran's claim for service-connection for a bilateral eye condition is 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 June 2012, 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. 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). Service treatment records have been obtained, as have private treatment records. The Veteran has not alleged he received any VA treatment for his bilateral eye condition. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Board acknowledges that no VA examination was provided in this case. However, the duty to assist does not require a VA medical examination be provided in every case. Instead four factors are considered in determining if an examination is required: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). As discussed above, although the Veteran has submitted competent evidence of his refractive eye condition, this condition is a genetic defect and as such not considered a disability or injury for VA purposes. 38 C.F.R. § 3.303(c). Therefore the Veteran's claim for a bilateral refractive eye condition failed to meet the first factor. As discussed above, the record also contains evidence the Veteran has a current cataract condition; however, the record does not include any indication the Veteran's current cataract condition may be associated with his military service. As such, no VA examination was required in this case. 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. ORDER The Veteran's claim for service connection for a bilateral eye condition is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs