Citation Nr: 1342277 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 07-21 818 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUE Entitlement to service connection for a bilateral eye disability, to include cataracts. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from April 1980 to April 2006. This appeal comes to the Board of Veterans' Appeals (Board) from May 2006 and November 2007 rating decisions. In a March 2011 decision, the Board denied service connection for hypertension and occlusal erosion. The Board also denied a disability rating in excess of 10 percent for gastroesophageal reflux disease. The Board's decision with respect to those issues is final. The Board also remanded a claim of entitlement to service connection for left ear hearing loss. Subsequently, the RO granted service connection for left ear hearing loss. This resolves the appeal as to that issue. 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 insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran does not have a chronic eye disability, other than refractive error. 2. There is no evidence of a prior episode of neuritis. 3. The Veteran does not have visually significant cataracts. CONCLUSION OF LAW Criteria for service connection for a bilateral eye disability, to include cataracts, have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection 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. As an initial point, a "chronic disease" listed under 38 C.F.R. § 3.309(a) has not been identified by the evidence of record, therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For VA purposes, refractive error of the eye is not on its own considered to be a disease or disability such that service connection could be granted for it alone. See 38 C.F.R. § 3.303(c). However, if the refractive error is caused by an eye disability or disease, then service connection may be warranted. The Veteran is seeking service connection for a bilateral eye condition, to include cataracts. He has a long history of wearing contacts and refractive error. At a hearing before the Board, the Veteran estimated that he first started having eye problems about the time computers came out, because he was clerk typist and had to begin looking at a monitor. He also has a history of ulcers in the eyes and distorted or blurry vision. He is currently diagnosed with multiple sclerosis, which has been found to be related to service, but the Veteran denied having ever been told by a doctor that any eye condition was the result of his multiple sclerosis. At his Board hearing in December 2010, the Veteran was asked about the "onset" of his cataracts to which he responded that, while in a VA vocational rehabilitation program at Eastern Washington University, he was having trouble reading his textbooks and reading the board. He reported going to a VA eye doctor in Spokane who informed him that he had a small cataract. The Veteran could not remember which eye his cataract was in. The Veteran asserts that he has an eye disability, to include cataracts, that either began during or was otherwise caused by his lengthy military service or is related secondarily to his service connected multiple sclerosis. The Veteran underwent frequent eye evaluations during his military career, and service treatment records do describe a history of ulcers in the eyes and distorted or blurry vision, with difficulty focusing. In March 1999, the Veteran was hit in the right eye with a basketball and reported seeing a floater. It was noted that the peripheral retina was intact. He was also required to wear an eye patch in service for several months. The Veteran was provided with a VA examination in December 2005, several months before separating from service. He reported that he had first noticed a decrease in his vision approximately four years earlier, and the examiner noted that the Veteran had developed ulcers in his eyes, particularly on the right. The examiner stated that the condition of both eyes was not due to injury and no cause had been identified. At the time of the examination, the Veteran was experiencing blurry vision in both eyes which did not cause incapacitation and had been treated with antibiotic eye drops. The Veteran demonstrated corrected far vision of 20/25-2 on the right, and corrected near vision of 20/32 (with uncorrected near vision of 20/100) on the left, the Veteran demonstrated corrected far vision of 20/25-3, and corrected near vision of 20/25 (with uncorrected near vision of 20/100). The Veteran did not have diplopia and a visual field examination was within normal limits. Additionally, a Goldmann perimeter test was within normal limits. The examiner did not find a disability in either eye, noting that the previously noted conditions had resolved. On this point treatment of the eye in service alone is not enough to warrant service connection; rather, the in-service event, illness, or injury must cause a chronic eye disability for VA purposes. As noted by the examiner, the ulcers in the Veteran's eyes resolved with treatment, and they have not been shown to have recurred. As such, they are not considered to be a chronic disability. The Veteran's claim was denied in May 2006 and he appealed, asserting that he had been experiencing trouble with his eyesight and he believed that his eyesight was deteriorating and he felt he required surgery to slow the process. In his substantive appeal, the Veteran sated that he had been diagnosed with early cataracts. In October 2006, the Veteran was seen at VA where he reported that his eyes were giving him a lot of trouble. His eyes drained and burned, and glasses reportedly made him dizzy. The Veteran stated that he got infections constantly; and reported his eye doctor had recommended a lens implant. He suggested that his eye problems had resulted from being exposed to a lot of plane-cleaning chemicals during his military career. In January 2007, the Veteran was seen by a VA eye doctor, who found him to be nearsighted (greater in the right eye) and diagnosed him with anisometropia. The Veteran reported an intolerance to spectacle correction due to high refractive error. The doctor found that the Veteran had been able to correct his vision with contact lenses until recently, but noted that over the previous several years, he had developed signs of contact lens over wear, which included corneal epithelial disruption, corneal ulcers, and corneal pannus. The Veteran was evaluated for a possible refractive lens exchange and/or cataract extraction. However, the doctor ultimately found that the Veteran did not meet the visual criteria (20/50 or worse) for cataract extraction and the doctor recommended a lensectomy. In October 2007, an evaluation by the VA eye clinic found that the Veteran did not have glaucoma, cataracts, or macular degeneration. The Veteran was assessed with myopia and lattice degeneration. The doctor discussed clear lensectomy, but concluded that the Veteran did not need eye surgery. In April 2011, the Veteran was provided with another VA examination in an effort to determine whether it was at least as likely as not that he had an eye disability that was caused or aggravated by his service-connected multiple sclerosis. At the examination, the Veteran reported a history of multiple sclerosis without ocular findings. On physical examination, the examiner found that diplopia was not present; the Veteran's optic nerve, vessel, and media were all found to be normal bilaterally; and the Veteran had mild RPE in the macula of his right eye (left eye macula was normal) and peripapillary atrophy in the fundus of the left eye. The examiner also noted that the Veteran experienced posterior vitreous separation with floaters bilaterally. However, the examiner did not detect any visual field defect, homonymous hemianopsia, or scotoma. The Veteran's visual acuity also exceeded 5/200, and no corneal disorder was found to have resulted in a severe irregular astigmatism that could be improved more by contact lenses than by eye glasses. The examiner diagnosed the Veteran with refractive error/high myopia, with mild myopic degeneration, with lattice degeneration, and with posterior vitreous separation with floaters. After reviewing the claims file, the examiner concluded that the eye examination did not show evidence of multiple sclerosis related neuritis at that time. He attributed the Veteran's blurred vision and difficulty focusing to his high myopia and myopic degeneration; and found that the Veteran's cataract was minimal and unrelated to his multiple sclerosis. The examiner allowed that the Veteran's visual field restrictions could be related to multiple sclerosis if the prior episode of neuritis had occurred, but found that the evidence did not suggest an actual history of neuritis in the Veteran's case. As noted, for VA purposes, refractive error of the eye is not on its own considered to be a disease or disability such that service connection could be granted for it alone. See 38 C.F.R. § 3.303(c). However, if the refractive error is caused by an eye disability or disease, then service connection may be warranted. In this case, it is clear that the Veteran has experienced refractive error for much of his life, and it is clear that while in service he had a number of eye problems; but, as is shown below, the Veteran is not shown to currently have any chronic eye disability beyond refractive error. Following the April 2011 VA examination, several questions remained, so the Board sought an expert medical opinion from an ophthalmologist which was provided in August 2013. The ophthalmologist was asked to address three specific questions. First, the ophthalmologist was asked whether it was at least as likely as not (50 percent or greater) that the Veteran has a chronic eye disability (other than refractive error secondary to myopia) that either began during or was otherwise caused by his military service, or by his service connected multiple sclerosis; and, if so, identify the condition? The ophthalmologist responded that from an extensive review of the Veteran's claims file and the current medical literature, she was of the opinion that the Veteran did not have a chronic eye condition that could be related to either his military service or to multiple sclerosis. The ophthalmologist explained that if one considered the Veteran's ocular findings anatomically (from the front of the eye to the back), no condition (refractive error, contact lens related corneal changes, immature nuclear sclerotic cataract, vitreous floaters, lattice degeneration or the visual field findings) is associated with multiple sclerosis, nor would they be uncommon findings in an age matched civilian peer group. She therefore considered them to be less likely than not related to the Veteran's military service. The ophthalmologist was then asked whether it was at least as likely as not that any of the Veteran's eye complaints in service actually represented symptoms of multiple sclerosis or an episode of neuritis which did in fact cause refractive error, or which aggravated (meaning made the underlying eye condition permanently worse beyond the natural progress of the disease) the already existing refractive error. To this, the ophthalmologist found that a review of the Veteran's most recent visual field, she did not see evidence of prior optic neuritis; specifically, there was no examination where the Veteran voiced visual complaints that were accompanied by findings that were consistent with optic neuritis or any of the other ophthalmic manifestations of muscle spasm. The ophthalmologist added that a review of the current ophthalmic literature and texts did not reveal any association between multiple sclerosis and progressive myopia. Finally, the ophthalmologist was asked whether the Veteran's diagnosed cataract(s) should be considered to be visually significant. The ophthalmologist observed that the Veteran had described having very functional visual acuity and did not verbalize complaints that supported the assertion that his cataract(s) were visually significant. This opinion was provided by a medical expert following consideration of the relevant medical literature. This opinion has not been undermined by any medical opinion of record. As such, it is found to be entitled to great weight. Essentially, the ophthalmologist found no eye disability either as a result of the Veteran's military service, or as a result of his service connected multiple sclerosis. While the Veteran has credibly reported discussing cataracts with his medical providers, the ophthalmologist underscored the fact that they were not visually significant. As such, the Board does not find that they fit the description of a current disability for VA purposes; and, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran's representative in an October 2013 response cited to the regulations regarding aggravation contained in 38 C.F.R. § 3.310, but these regulations do not appear to be applicable in this instance. Specifically, the ophthalmologist found that the Veteran did not have a chronic eye disability, beyond refractive error, and thus there was not an eye disability that could be aggravated by the multiple sclerosis. As described, the criteria for service connection have not been met, and the Veteran's claim is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. 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 claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant 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 claimant 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 March 2006, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. In April 2006, the Veteran indicated that he had no additional information or evidence to give to VA. 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). Extensive service treatment records have been obtained, as have VA treatment records, and the Veteran has not alleged receiving any private eye treatment. Additionally, the Veteran testified at a hearing before the Board. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file) and an expert medical opinion was obtained, which when read together address all of the questions necessary to fairly adjudicate this claim. Additionally, there has been no indication voiced by either the Veteran or his representative that any of the medical opinions were inadequate. As described, 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. When conducting a hearing, a VA hearing officer must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2013). The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Here, during the hearing, the Veteran's symptomatology, history, and assertions as to etiology were discussed in detail. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. Moreover, the Veteran has not asserted that there was any deficiency regarding the notice provided to him at the hearing. ORDER Service connection for a bilateral eye disability, to include cataracts, is denied. ____________________________________________ Lloyd Cramp Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs