Citation Nr: 1533188 Decision Date: 08/04/15 Archive Date: 08/11/15 DOCKET NO. 03-25 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for left eye impairment of visual acuity (claimed as blindness), to include as secondary to service-connected diabetes mellitus, type II, or hypertension. REPRESENTATION Appellant represented by: Lawrence D. Levin, Attorney ATTORNEY FOR THE BOARD L. Connor, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to September 1969. The record reflects that the Veteran served in the Republic of Vietnam and he is in receipt of the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. That rating decision denied entitlement to service connection for blindness. A claim for service connection for hypertension was also on appeal. In a rating decision dated in April 2013, the RO granted service connection for hypertension. The Veteran's claim for right eye vision disability as secondary to hypertension was also granted. The claim for entitlement to service connection for left eye blindness remains denied and has returned to the Board. This claim was most recently before the Board in February 2012 when it was remanded for additional development. It has returned to the Board for adjudication. FINDING OF FACT The preponderance of the evidence fails to establish that the Veteran's left eye disability had its onset in service or was otherwise caused or aggravated by his active service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for left eye disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his attorney has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in April 2002 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. Although he was not notified at this time of how VA determines disability ratings and effective dates if service connection is awarded, he was subsequently notified in a letter dated in March 2006. His claim was readjudicated in a supplemental statement of the case issued in May 2006. Under these circumstances, the Board finds that adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claims. Pertinent medical evidence associated with the claims files consists of service, private, and VA treatment records in addition to statements made by the Veteran regarding his claim. It is additionally noted that this appeal was remanded by the Board in February 2012 for further development. Specifically, his claim for bilateral eye disability was found to be inextricably intertwined with his claim for service connection for hypertension. As discussed above, service connection for hypertension has been granted as has service connection for right eye vision disability. The Board is satisfied there was substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The RO obtained a VA opinion in July 2009 regarding this claim. The Board finds the July 2009 opinion is adequate, as it is predicated on a review of the Veteran's medical records in addition to the expertise of the practicing optometrist, and provides a sufficient evidentiary basis for the claim to be adjudicated. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the Veteran's left eye claim has been met. 38 C.F.R. § 3.159(c)(4). The record shows that the Veteran requested that he be afforded a personal hearing before the Board in Washington, DC. Such a hearing was scheduled for February 2005, but he did not report. Neither the Veteran nor his attorney has requested another hearing. The hearing request is thereby deemed withdrawn. No outstanding evidence has been identified that has not otherwise been obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis While the Board recognizes that direct service connection must also be considered under Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), in this instance, the record does not support that the Veteran's left eye disability (blindness) began in service or is otherwise related to his active service, to include his presumed exposure to herbicide agents. There is simply no basis to award service connection on a direct or presumptive basis or on the basis of chronicity or continuity of symptomatology. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a) (2014). He does not argue the contrary. Rather, the Veteran has alleged that his blindness is secondary to his service-connected diabetes mellitus, type II. Service connection may be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability, not to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a) (2014); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As to Wallin element (1), the medical evidence of record demonstrates that the Veteran currently has blindness in his left eye as a result of enucleation. With respect to Wallin element (2), it is undisputed that the Veteran is currently service-connected for diabetes mellitus, type II and hypertension. The Board finds that the Veteran's claim fails on crucial Wallin element (3), nexus. The VA opinion dated in July 2009 indicates that the Veteran has a prosthetic left eye due to trauma. The examiner found that the Veteran's right eye disability was secondary to his hypertension. Treatment records from Ely State Prison dated in September 1988 note that the Veteran was "jumped" and a weapon was stuck into his left eye. As a result, his globe was ruptured and his lens was free floating. Treatment notes from Dr. M.F. dated in September 1988 note that the Veteran had a ruptured left eye. Upon examination, his retinal tissue was "totally shattered and destroyed from the previous injury." Dr. M.F. noted that the eye "is basically a lost eye from the standpoint of the seriousness of the injury." As a result, he underwent enucleation of the eye that month. A letter dated in June 2000 from Dr. M.F. notes that his right eye is "his only good eye." Dr. M.F. opined that the Veteran's right eye vision disability was the result of hypertension. The Board has considered the Veteran's statements asserting a nexus between his vision disability and his service-connected diabetes mellitus, type II. The Veteran is competent to report that he has problems seeing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007). However, the Veteran is not found competent to relate a vision problem to a service-connected disability. See Jones v. West, 12 Vet. App. 460, 465 (1999). The Veteran has not submitted any competent evidence of a nexus between his left eye disability and his service-connected diabetes mellitus, type II or hypertension. Rather, the only medical evidence of a nexus between a vision disability and a service-connected condition relates to his right eye disability and his service-connected hypertension. His post-service medical records clearly indicate that his left eye blindness resulted from enucleation after sustaining trauma. The Veteran does not offer evidence to the contrary. Indeed, although the Veteran alleges a relationship between his "blindness" and his diabetes mellitus, his claim was filed in June 2001, over 10 years after his right eye prosthetic was placed. Additionally, his post-service treatment records note complaints of vision problems beginning in May 2000, indicating his complaints were related to his only remaining, right eye. The preponderance of the evidence indicates that the Veteran's left eye blindness is the result of trauma sustained in 1988, nearly 20 years after service. As such, the Veteran's claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for left eye impairment of visual acuity, claimed as blindness, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs