Citation Nr: 1324032	
Decision Date: 07/29/13    Archive Date: 08/07/13

DOCKET NO.  07-17 128	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

1.  Entitlement to service connection for a left eye disability.  

2.  Entitlement to service connection for a right eye disability.  


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A-L Evans, Associate Counsel
INTRODUCTION

The Veteran served on active duty from September 1993 to June 1995.  

This matter comes to the Board of Veterans' Appeals (Board) from an August 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the claims.  

The Veteran testified at a hearing before the Board in February 2010.  A transcript of that hearing is associated with the Veteran's file.  Regrettably, the Veterans Law Judge (VLJ) who held the hearing is no longer at the Board.  The law requires that the VLJ who conducted a hearing shall participate in making the final determination of the claim.  38 U.S.C.A. § 7107 (c) (West 2002); 38 C.F.R. § 20.707 (2012).  By a June 2013 letter, the Veteran was provided an opportunity to request another Board hearing and given 30 days to respond.  To date, a response has not been received.  Thus, the Board assumes that the Veteran does not desire an additional hearing and will adjudicate the claims.

The issues of service connection for left and right eye disabilities and headaches were before the Board in March 2010, and the claims were remanded for further development.  In February 2012, the Appeal Management Center (AMC) granted service connection for headaches.  Thus, the issue of service connection for headaches has been resolved and is no longer on appeal before the Board.  See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997).  

The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims.  A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The issue of service connection for a right eye disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, DC.  VA will notify the Veteran if further action is required on his part.

FINDING OF FACT

The most probative evidence notes the Veteran's left eye examination was normal except for a refractive error, which is not a disability for VA purposes. 


CONCLUSION OF LAW

The requirements for establishing service connection for a left eye disability have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 4.9 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 C.F.R. § 3.159(b) (2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

In this case, in a February 2006 letter, issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate her claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  The Veteran was not advised of how disability evaluations and effective dates are assigned until his most recent supplemental statement of the case.  However, as the Board concludes below that the preponderance of the evidence is against the appellant's claim for service connection for a left eye disability, any question as to an appropriate evaluation or effective date to be assigned is rendered moot  

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post service treatment records, private treatment records, and hearing testimony. 

The Board also notes that actions requested in the prior remand have been undertaken.  VA examinations were conducted in May 2010 and medical opinions obtained.  Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).   

The Veteran has been afforded a hearing before a VLJ in which she presented oral argument in support of her claims for service connection.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked.  Here, the VLJ identified the issues to the claimant and asked specific questions directed at identifying whether the Veteran met the criteria for service connection.  Additionally, the Veteran volunteered her treatment history and symptoms since service.  The Veteran has not 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.   The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements.  As such, the Board finds that the Veteran is not prejudiced by a decision being rendered at this time and no further action pursuant to Bryant is necessary. 

As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining 
such evidence.  The Veteran was an active participant in the claims process by submitting evidence and argument to support her claim.  Therefore, she was provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran.  See Pelegrini, 18 Vet. App. at 121.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II.  Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

III.  Analysis

The Veteran contends that she currently has a left eye disability, manifested by decreased vision, which is related to her active military service.  

Service treatment records show the Veteran's visual acuity was 20/20 upon entrance examination.  She was seen for a left eyelid contusion in October 1994.  The medical report indicates that the Veteran was struck with a piece of wood and sustained a small laceration.  Her left eye vision was noted as 20/30.  A treatment report a few days later indicated slight swelling of the left eyelid, but that the eyelid was healing well.  Fundoscopic and flurostain evaluations were normal.  The Veteran's left eye vision was 20/20.  The Veteran's service personnel records indicate the Veteran declined to have a separation examination. 

Post-service medical records dated in July and September 2006 reflect a private optometrist's prescription for correction of distance vision.  

At the Veteran's February 2010 Board hearing, she stated that she was hit in the face while in service and her eye was bruised.  She stated that it felt like "blunt trauma to the eye."  She stated that she now has to depend on glasses, that her vision has never been the same and that she is sensitive to light.  She also stated that she has astigmatism.

The Veteran was afforded a VA eye examination in May 2010.  Upon examination, the Veteran's distance visual acuity without correction for the left eye was 20/200+ and distance visual acuity with correction was 20/15.  The examiner noted the lids, lashes and lacrimal system were within normal limits and the cornea and lens were clear.  The visual fields were full and extraocular motility was full.  The examiner concluded the Veteran had a normal eye examination for her left eye, and diagnosed her with refractive error.

The Board finds that the weight of the medical evidence is against a finding that 
the Veteran has any current left eye disability for which service connection can be granted.  In this regard, congenital or developmental defects and refractive error of the eye are not diseases or injuries within the meaning of applicable legislation for disability compensation purposes.  38 C.F.R. §§ 3.303(c), 4.9. 

Here, the medical evidence of record establishes that the only diagnosed left eye disorder is a refractive error.  As such condition is not a disability for which service connection can be established, the claim must be denied.  

While the Veteran contends that she has a left eye disability that is related to her military service, there is no indication that she has specialized training in diagnosing eye disorders.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  In this regard, the diagnosis of eye disorders requires medical testing and training to identify.  Thus, her opinion as to the cause of 
her decreased vision is not a competent medical opinion.  The Board accords significantly greater probative value to the diagnosis rendered by the VA physician. 

As the probative medical evidence indicates the only left eye condition present is a refractive error, which is a defect for which service connection is not payable, the Board finds that the preponderance of the evidence is against the claim.  Accordingly, service connection for a left eye disability is denied.  

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

 
ORDER

Entitlement to service connection for a left eye disability is denied.


REMAND

After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim for service connection for a right eye disability.

The Board notes that service treatment records reflect that the Veteran suffered a left eyelid contusion in October 1994.  Visual acuity in her right eye at that time was 20/25.  A few days later, her right eye vision was listed as 20/40.  At the Veteran's February 2010 Board hearing, she stated since being hit, she has felt "like both of [her] eyes are affected."  

During the May 2010 VA examination, the VA examiner found that the Veteran essentially had a normal eye examination, but diagnosed conjunctiva racial melanosis of the right eye as well as refractive error.  

As noted above, refractive error is not a disability for VA purposes.  However, the examiner did not provide an opinion as to whether conjunctiva racial melanosis was related to the Veteran's military service.  Under these circumstances, the Board finds that a remand for an additional opinion is necessary.  

Relevant ongoing medical records should also be requested.  38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated her for her right eye condition.  After securing the necessary release, the RO/AMC should request any relevant records identified. 

2.  After the above has been completed to the extent possible, return the claims file and the May 2010 eye examination report to the examiner who conducted that examination, if available, for an addendum opinion.  If the examiner determines an additional examination is necessary, such should be scheduled.  If the original examiner is not available, the claims file should be forwarded to an optometrist or ophthalmologist to obtain the requested opinion.  Following review of the claims file, the examiner should respond to the following:

Is it more likely (greater than 50% probability), less likely (less than 50% probability) or at least as likely as not that (50/50 probability) that the Veteran's conjunctiva racial melanosis of the right eye was caused by or is related to the Veteran's active military service, to include the injury in October 1994 involving her left eye?  Please explain why or why not.  

3.  After completion of the above development, the Veteran's claim should be readjudicated.  If the claim remains denied, she and her representative should be provided with a supplemental statement of the case and be given an opportunity to respond thereto.  Thereafter, the case should be returned to the Board, if in order.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs