Citation Nr: 18151994 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-42 121 DATE: November 20, 2018 ORDER New and material evidence has been submitted, and the claim of entitlement to service connection for bilateral eye disorder/residuals from photorefractive keratectomy (PRK) surgery is reopened. Entitlement to service connection for bilateral eye disorder/residuals from PRK surgery is granted. FINDINGS OF FACT 1. A September 2012 rating decision denied the Veteran’s claim of entitlement to service connection for bilateral eye disorder/residuals from PRK surgery, finding a lack of evidence to show a current bilateral eye disability related to or caused by service; the Veteran did not appeal that denial or submit new and material evidence within a year of the decision, and the September 2012 decision became final. 2. Resolving all doubt in the Veteran’s favor, bilateral eye disorder/residuals from PRK surgery were the result of an in-service injury, event, or illness. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of entitlement to service connection for bilateral eye disorder/residuals from PRK surgery is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for bilateral eye disorder/residuals from PRK surgery have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 2007 to March 2011. A January 2014 rating decision addressed multiple issues, including continuing a previous denial of service connection for bilateral eye disorder/residuals from PRK surgery. The Veteran filed a Notice of Disagreement (NOD) in January 2015. A Statement of the Case (SOC) was issued in July 2016, which included multiple other issues but excluded the eye disorder claim. However, the Veteran filed a Substantive Appeal in August 2016 attempting to perfect the claim for service connection for bilateral eye disorder/residuals from PRK surgery only. The VA Regional Office (RO) eventually addressed the claim for bilateral eye disorder/residuals from PRK surgery in an August 2017 Supplemental SOC (SSOC). In the accompanying letter, the RO informed the Veteran of the need for a Substantive Appeal and indicated that he “may also put the same information in a letter to us,” rather than the supplied VA Form 9 (Appeal to Board of Veterans Appeals). In September 2017, the Veteran furnished an Intent to File claim that was not specific, but appears to be accepted by the RO as a Substantive Appeal; the RO furnished a February 2018 decision confirming the issue as being on appeal, and the Intent to File form was listed among the pieces of evidence considered. Given the confusion involved here, the Board elects to exercise jurisdiction over the claim to reopen the previously denied claim of entitlement to service connection for bilateral eye disorder/residuals from PRK surgery. See Percy v. Shinseki, 23 Vet. App. 37 (2009). In a January 2018 rating decision, the RO continued the currently assigned disability ratings for multiple service-connected disorders. The Veteran responded in a May 2018 NOD regarding the denied claims. 38 C.F.R. § 20.201. The RO has not yet issued an SOC on these issues but, in the same month, acknowledged the claims and advised the Veteran that additional action was pending. No Board action pursuant to Manlincon v. West, 12 Vet. App. 238 (1999) is thus needed at this time. Petition to Reopen Pertinent evidence received since the September 2012 final unappealed rating decision, regarding the claim of entitlement to service connection for bilateral eye disorder/residuals from PRK surgery, includes a September 2016 VA eye conditions Disability Benefits Questionnaire and medical opinion, which shows diagnoses of dry eye syndrome and glare sensitivity. The examiner opined that the claimed bilateral eye disorder was at least as likely as not incurred in or caused by a claimed in-service injury, event, or illness. The rationale for the opinion was that the Veteran had an eye examination by VA in October 2013 and was being treated with cyclosporine, artificial tears, and lacrilube ointment; PRK refractive surgery can facilitate dryness and complaints of glare and light sensitivity. When viewing this evidence in the light most favorable to the Veteran, and considering the “low threshold” standard for reopening a claim per Shade v. Shinseki, 24 Vet. App. 110 (2010), the Board finds the evidence to be new and material. This follows because it is not cumulative or redundant of the evidence previously of record, and it tends to show the Veteran’s bilateral eye disorder may be etiologically related to service. Accordingly, the claim of entitlement to service connection for bilateral eye disorder/residuals from PRK surgery is reopened. Service Connection The Veteran contends he has residuals from PRK eye surgery performed while he was in the service. Specifically, he stated he had elective PRK surgery in August 2009 to correct refractive error that was essential to performing his military occupational specialty as a generator mechanic and electrical engineer. On postoperative follow-up examinations, he had chronic symptoms of starbursts, dry eye, eye pressure, blurred vision, distortion, vision fluctuation, trouble with depth perception, double vision, decreased night vision, halos around headlights at night, incapacitation (blindness) from headlights at night, very dry eyes and light sensitivity. On review, the Board finds that the medical evidence in this case is in conflict. The Board has described the favorable September 2016 opinion above. In contrast, an August 2017 VA ophthalmologist found there was no relationship between the Veteran’s current claimed bilateral eye disorders and the in-service PRK surgery. Both eye doctors reviewed the Veteran’s claims file and provided rationale for their opinions. The evidence in this case is at least in relative equipoise, and, after resolving all doubt in the Veteran’s favor, service connection is found to be warranted for bilateral eye disorder/residuals from PRK surgery. This claim is thus granted in full. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Young, Counsel