Citation Nr: 1334516 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-25 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residual visual impairment of the right eye, status post chloroquine exposure. 2. Entitlement to service connection for residual visual impairment of the left eye, status post chloroquine exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran had active service from June 1966 to September 1973; February 1991 to July 1991; January 1994 to December 1994; October 1996 to February 1997; December 1998 to September 1999; and December 2002 to August 2007. The Veteran also had unverified periods of service in the U.S. Army Reserves throughout his years of active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In that decision, the RO denied the claim for service connection for residual visual impairment in both eyes, status post chloroquine exposure, and further denied the claim for service connection for onychomycosis. Before the matter was transferred to the Board, by a July 2010 rating action, the RO granted service connection for onychomycosis of both feet, combined it with the previously service-connected actinic keratosis, and evaluated this disorder as 10 percent disabling, effective January 29, 2009. The Board finds that the grant of service connection for this disability constitutes a full award of the benefit sought on appeal with respect to the tinnitus issue. See Grantham v. Brown, 114 F. 3d 156, 1158 (Fed. Cir. 1997). Although the AOJ has developed the claim as entitlement to service connection for residual visual impairment, status post chloroquine exposure, in light of the medical evidence of record, which will be discussed in greater detail in the decision below, the Board finds it appropriate to bifurcate the Veteran's claim into two separate issues, as reflected on the title page of this decision. FINDINGS OF FACT 1. An acquired right eye disorder did not have its clinical onset in service and is not otherwise related to active duty. 2. Status post left eye retinal tearing is the result of an event that occurred during the Veteran's period of military service. CONCLUSIONS OF LAW 1. An acquired right eye disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. Status post left eye retinal tearing was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board will address the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)(2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In the decision below, the Board has granted the Veteran's claim for service connection for the left eye disorder, and therefore the benefit sought on appeal with respect to this claim has been granted in full. Accordingly, regardless of whether the notice and duty-to-assist requirements of the law have been met in this case, no harm or prejudice to the Veteran has resulted. See, e.g., Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. With regard to the right eye disorder, the Board finds that all notification and development action needed to arrive at a decision has been accomplished. In this respect, through a Benefits Delivery at Discharge (BDD) VCAA notice letter dated in April 2007, the Veteran received notice of the information and evidence needed to substantiate his claim. Thereafter, he was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claim. The Board finds that the April 2007 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In the letter, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, service department records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (to be codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned April 2007 letter. Further, the Veteran was provided notice regarding an award of an effective date and rating criteria in the April 2007 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 472 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the notice requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. The Veteran's service treatment records as well as all identified and available VA and private treatment records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the service connection claim adjudicated herein. The Board acknowledges that some of the post-service medical records, to include prescriptive records and billing statements, appear to have been issued by a physician located in Guatemala, and are written in Spanish. However, these records pertain to the Veteran's dermatological condition - a disability which has already been service-connected and which is currently not on appeal. Furthermore, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran also underwent a VA examination in connection with his claimed disorder in April 2010; the report of which is of record. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Board finds that the VA examination obtained in this case is adequate, as it was predicated on a physical examination as well as consideration of the medical records in the Veteran's claims file and the Veteran's reported history. The opinion considers all of the pertinent evidence of record, to include statements given by the Veteran at the time of the VA examination, and provides a complete rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claims on appeal has been met. 38 C.F.R. § 3.159(c)(4). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. II. Factual History The Veteran contends that his current vision problems developed after he was placed on the medication chloroquine prior to, and during, his tour of duty in Haiti in 2004. According to the Veteran, he began experiencing floaters, which he likened to "black and grey specks and string like cobwebs" that drifted around his field of vision after he started using chloroquine. The Veteran further stated that he was evaluated by an optometrist several times in service, and both of those times, the optometrist found no evidence of retinal separation. See January 2007 notice of disagreement (NOD) and July 2009 substantive appeal. Turning to the service treatment records, the Board notes that at the March 1966 enlistment examination, the clinical evaluation of the Veteran's eyes was shown to be normal. Although the Veteran reported a history of eye trouble in his medical history report, in the section entitled 'Physician's Summary and Elaboration of all Pertinent Data,' the examiner noted that the Veteran wore glasses for a brief period during his adolescence and that he had not worn them since. The record reflects that the Veteran served as a Rotary Wing Aviator during his first period of service, (January 1967 to September 1973) and underwent routine physical examinations, sometimes several times a year, to ensure that he was physically capable of maintaining his flying privileges. Clinical evaluation of the eyes was once again shown to be normal at the March 1967 medical examination. Although the Veteran reported a history of eye trouble at the January 1970 Class II Flight Physical, the clinical evaluation of the eyes was shown to be normal, and in the Physician's Summary and Elaboration of all Pertinent Data Section, the medical examiner noted that the Veteran wore reading glasses for approximately one year, ten to eleven years prior. The Veteran underwent a number of medical examinations again in February 1971, February 1972, May 1973 and July 1973, and at each examination, the clinical evaluation of his eyes was shown to be normal. Although the Veteran continued to report a history of eye trouble, the medical examiners continually reiterated that he only wore reading glasses for one year many years ago, and had not experienced any vision problems since. The Board finds that the Veteran did not exhibit a vision impairment prior to his period of service, and he is presumed to have been in sound condition at entry to service in June 1967. Medical records and examination reports issued during the Veteran's period of service in the U.S. Army Reserves (USAR), also reflect normal clinical evaluations of the eyes. In September 1987, the Veteran underwent a periodic Class 2 Flying examination and while the clinical evaluation of his eyes was shown to be normal, the medical examiner noted that examination of the eyes revealed signs of mild presbyopia and hyperopia. At the September 1988 medical examination, the medical examiner noted that the Veteran had presbyopia and recommended that he wear corrective lenses when handling his flights. On the July 2002 medical history form, the Veteran reported a history of eye trouble, and in the explanation section, it was noted that he had a piece of shrapnel removed from his face in 1969, and a thorn removed from his eye in 1986. In a March 2004 pre-deployment medical form, it was noted that the Veteran would deploy to Haiti in 90 days, and would be placed on certain types of medication, to include chloroquine phosphate, two weeks prior to his arrival, as a preventative measure against the contraction of malaria. In May 2004, the Veteran presented at the Army Medical Center, at which time he reported to see "faint spots" and "halos" in both eyes. The Veteran was seen once again several days later, at which time he reported to experience floaters in his left eye. Upon evaluating the Veteran's eyes, the medical examiner noted no abnormalities in the Veteran's visual acuity, and further noted that results from the slit lamp examination were within normal limits. There were findings of vitreous floaters in the left eye. Based on his evaluation of the Veteran, it was determined that the Veteran's examination results were normal. In a June 2004 Post-Deployment Health Assessment form, the Veteran reported that his left eye was damaged as a result of his exposure to chloroquine. During an August 2005 consultation, the Veteran complained of visual problems, to include experiencing "flashes of light [and] half moon" in the left eye for the past twenty-four to thirty-six hours. Even after conducting an opthalmological evaluation of the Veteran, the medical examiner did not discover any signs of a retinal detachment in the eyes. At the February 2006 examination, the clinical evaluation of the Veteran's eyes was shown to be abnormal, and in the notes section, the medical examiner noted that the Veteran's vision was "corrected only to 20/70, 20/50" and that the eyes displayed "unequal, yet normal, pressure." It was further noted that the Veteran had a medical history of retinal detachment and shrapnel removal from OS [left eye]" and that he "reports seeing floaters yet none appreciated on exam." In the recommendations section, the medical examiner suggested that the Veteran be referred to an ophthalmologist for evaluation and treatment. He also referred the Veteran to an optometrist for a new prescription and recommended that the Veteran return to the clinic for follow-up treatment and evaluation of his corrected vision. In March 2007, the Veteran was seen at the Center for Excellence in Eye Care, during which he reported to experience recurrent floaters in his right eye. The Veteran was afforded a VA examination in June 2007, prior to his August 2007 discharge from service, at which time he reported to notice "spider like floaters" two to three months after being placed on chloroquine. According to the Veteran, he initially began experiencing floaters in one eye, and these floaters started to affect the other eye one year later. The Veteran described visual symptoms, to include experiencing halo-like images and floaters in both eyes. On physical examination, the Veteran's uncorrected distance vision was 20/100 in the right eye and 20/80 in the left eye. In addition, the Veteran's uncorrected vision for objects within close range was 20/400 in both eyes. Findings on slit lamp examination were shown to be normal, and the Veteran's cornea and optic lens were described as clear in both eyes. Although fundoscopic examination findings were shown to be normal, the VA examiner observed "posterior vitreal detachment and condensed vitreal floaters without traction in both eyes." Based on his evaluation of the Veteran, the VA examiner diagnosed the Veteran with normal macular appearance without pigmentary alteration, and noted that while the Veteran may experience possible ocular side effects as a result of the chloroquine, he did not exhibit any evidence of chloroquine retinal toxicity. In a February 2009 letter, the Veteran's private ophthalmologist, L.H., M.D., took note of the Veteran's complaints of floaters and flashes in both eyes, and further acknowledged that the Veteran took anti-malarial medication for two months during his military service. Dr. H. also noted that the Veteran underwent refractive (Lasik) surgery on both eyes and currently wore reading glasses. Upon physical examination, the Veteran's visual acuity was shown to be 20/20 in both eyes, the intraocular pressure was 14 millimeters of mercury (mm Hg) bilaterally, and the optic fundii revealed a normal optic nerve and macula and bilateral posterior vitreous detachment with fibrillary condensations floating in front of the posterior pole. According to Dr. H., evaluation of the left eye showed a "large horse-shoe shaped retinal tear, without retinal detachment." The Veteran was afforded a VA examination in April 2010, at which time, he provided his medical history and described how he began noticing moving floaters in the left eye shortly after he started taking chloroquine. According to the Veteran, four months after he started this medication, he began having spider like floaters in his left eye. Upon reviewing the Veteran's medical history, the examiner noted that the Veteran underwent Lasik surgery in 2007, and a retinal laser procedure in 2009 to treat the retinal tear discovered in his left eye that year. On physical examination, funduscopic examination findings were described as normal in the right eye and abnormal in the left eye. According to the examiner, evaluation of the left optic media revealed signs of "PVD [posterior vitreous detachment] with syneresis peripherally" and "pigment spots floating in the vitreous." While slit lamp findings in the right and left eye were shown to be normal, the Veteran's uncorrected visual acuity for objects within close range was 20/200 for the right eye and 20/100 in the left eye. Based on these findings, the examiner assessed the Veteran with presbyopia in the eyes. After interviewing and evaluating the Veteran, the VA examiner diagnosed the Veteran with a horseshoe tears in the left eye post PVD. According to the examiner, the floaters experienced by the Veteran were not related to his medication use as problems associated with this medication include retina/macula bull's eye maculopathy and central scotomas and blur, rather than floaters. The examiner explained the medical process behind the formation and development of a posterior vitreous detachment, and further noted that "vitreous detachments can lead to other areas of the retina being tractionally pulled. . . ." According to the examiner, "if the vitreous adhesion pulls part of the retina off with it, it can lead to retinal tears or holes." The examiner further noted that Lasik surgery was a known risk factor for developing peripheral retinal tears, as is any ocular surgery, and concluded that this surgery combined with the previous PVD is what most likely caused the Veteran's peripheral tears. III. Analysis Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) evidence of the current disability; (2) evidence of the in-service incurrence of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a). Subsection (a) also refers to "each disabling condition . . . for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Visual Impairment of the Right Eye, status post chloroquine exposure Initially, the Board notes that service connection for presbyopia is not warranted as presbyopia is a refractive error, and refractive errors of the eye are not disabilities for VA compensation purposes. See 38 C.F.R. § 3.303; Winn v. Brown, 8 Vet. App. 510, 516 (1996). The March 2004 and June 2007 eye examinations in service noted findings of posterior vitreal detachment in both eyes, however, there were no findings of an acquired eye disability. Indeed, the April 2010 VA examiner (who also performed the June 2007 VA examination) conducted a detailed and thorough evaluation of the Veteran's eyes, noted that funduscopic examination findings in the right eye were shown to be normal, and described in detail where the PVD was specifically located. Other than the incidental findings of PVD in service, there were no findings of an acquired right eye disorder in service or following active duty. The PVD did not result in retinal detachment or other chronic disability. There is no persuasive evidence that indicates that the Veteran currently has a right eye disorder. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Given the lack of a current diagnosis of a right eye disorder, other than one that is considered congenital, service connection cannot be awarded. As the preponderance of the evidence is against the Veteran's service connection claim, the benefit of the doubt doctrine is not for application. See generally Gilbert, 1 Vet. App. at 49. Visual Impairment of the Left Eye, status post chloroquine exposure After a review of the evidence of record, the Board finds that service connection is warranted for left eye disability. The post-service treatment records reflect that the Veteran has been diagnosed as having horseshoe tears in the left eye post PVD. See April 2010 VA examination report. A review of the service treatment records reflect the Veteran's complaints of recurrent floaters in his eyes and the June 2007 funduscopic examination findings revealed PVD and condensed vitreal floaters in the optic media. Finally, turning to the third element required for service connection, the Board takes note of the April 2010 VA medical opinion which relates the Veteran's current horseshoe tears in the left eye to his Lasik surgery combined with this previous PVD - both of which occurred during his period of service. Although the VA examiner determined that the Veteran's PVD is a normal process of aging and did not occur as a result of an in-service incident, the evidence reflects that the PVD did occur while he was in service. In light of the fact that the April 2010 VA examiner attributed the Veteran's current retinal tear to these in-service occurrences, the Board finds that the third element required for service connection has also been satisfied. Based on the totality of the evidence, and resolving reasonable doubt in the Veteran's favor, his residuals of left eye retinal tearing is related his military service. (CONTINUED ON NEXT PAGE) ORDER Service connection for residual visual impairment of the right eye, status post chloroquine exposure is denied. Service connection for status post left eye retinal tearing is allowed ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs