Citation Nr: 1749934 Decision Date: 11/02/17 Archive Date: 11/13/17 DOCKET NO. 10-41 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a disability manifested by vision loss, to include as secondary to diabetes mellitus (vision loss disability). REPRESENTATION Appellant represented by: James G. Fausone, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.Lee, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 2004 to June 2005, and had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Indiana Army National Guard from June 2006 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In August 2011, the Veteran testified at a video conference hearing held before the undersigned. A transcript of this hearing has been added to the record. In September 2014 and June 2016, the Board remanded the issue for further development. The issues have been returned to the Board for further appellate review. FINDING OF FACT The Veteran's vision loss disability is not causally or etiologically related to active service, and is not caused or aggravated by his service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for bilateral vision loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for vision loss disability, including as secondary to diabetes mellitus. While the Veteran has recently undergone LASIK surgery to correct a vision defect, he maintains that his vision loss, to include any residuals subsequent to corrective surgery, are a consequence of his diabetes. The Board notes that for service connection to be granted, it is first and foremost a requirement that a current disability be present. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Jurisprudence from the U.S. Court of Appeals for Veterans Claims has, however, established that this first prong of the regulatory requirements can be established by a disability being present at any time during the appeal period. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thus, even though there has been successful LASIK surgery intervention, service connection may still be warranted for visual impairment if at some point following the filing of the claim, the Veteran had visual impairment, including as secondary to his service-connected diabetes. In the Veteran's service treatment records, the Veteran underwent an optometry examination due to headaches at Fort Hood in October 2004. The Veteran demonstrated vision problems in one eye (20/100) and a "lazy eye" was reported. In May 2009, the Veteran was examined by a private physician, Dr. M.A., who opined that the Veteran did not have diabetic retinopathy in either eye. The Veteran was diagnosed with a corneal scar on his right eye, myopia, and astigmatism. In August 2009, the Veteran was afforded a Diabetes Mellitus Disability Benefits Questionnaire (DBQ). Here, the Veteran denied having visual problems, and the VA examiner noted that the Veteran's eyes were normal, with all visual fields intact. In VA medical records from October 2010 to May 2017, the Veteran repeatedly tested negative for a vision disability, including tests done during optometry evaluations. Specifically, in August 2011, the Veteran proved to have no retinopathy during evaluation for a diabetes mellitus clinic. Additionally, in January 2012, November 2013, and March 2014, the Veteran underwent a diabetic retinopathy surveillance examination, and the test revealed he did not have diabetic retinopathy. In December 2015, the Veteran was afforded an Eye Conditions DBQ. The VA examiner was unable to find a current vision disability due to the Veteran's LASIK surgery. In June 2016, the Board remanded this claim for an addendum opinion, that in light of the Veteran's corrective LASIK surgery, an opinion was needed on whether there was a relationship between the Veteran's vision impairment and diabetes, or whether the vision impairment was due to refractive error. In December 2016, the Veteran was afforded another Eye Conditions DBQ. The VA examiner continued the Veteran's diagnosis of faint peripheral corneal foreign body scar in his right eye. The Veteran reported to the VA examiner that he had LASIK surgery in both eyes in 2013. After administering a visual acuity test, the Veteran scored 20/40 or better in all ranges. The VA examiner noted that the Veteran did not have anatomical loss, light perception only, extremely poor vision, or blindness in either eye. The VA examiner opined that the Veteran's bilateral mild vision impairment was less likely than not caused or aggravated beyond the natural course by the Veteran's diabetes mellitus. He stated that diabetes can cause a shift in refraction, and this shift typically fluctuated with blood sugar levels and was not stable. The VA examiner stated that the Veteran showed a mild amount of myopic astigmatism which appeared to be stable. Additionally, the Veteran's visual acuity was still stable at 20/20 in both eyes after having undergone LASIK surgery two years prior. The VA examiner concluded with the opinion that the Veteran's visual deficiency was due to refractive error, specifically mild myopic astigmatism which was corrected by the LASIK surgery. Considering the evidence above, the Board finds that there is no current disability relevant to the claim of service connection for a vision loss disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163; Brammer, 3 Vet. App. 223; McClain, 21 Vet. App. 319. In this case, the most probative evidence of record indicates there was no disability being present at any time during the appeal period, including residuals of vision loss disability from corrective surgery nor causation or aggravation due to the Veteran's service-connected diabetes mellitus. Thus, service connection cannot be granted as there is no current disability, and no vision loss disability has been identified at any time during the appeal period. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Both private and VA treatment records, including those prior to his 2013 LASIK surgery, state that the Veteran did not have vision loss disability symptoms, and the notation from October 2004 indicating a potential for such was opined to be a refractive error by the December 2016 VA examiner, which is not subject to service connection. Thus, there can be no valid claim for service connection. See Brammer, 3 Vet. App. 223. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for a vision loss disability, and there is no doubt to be otherwise resolved. The appeal is denied. ORDER Service connection for a disability manifested by vision loss, including as secondary to diabetes mellitus, is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs