Citation NR: 9621324 Decision Date: 07/29/96 Archive Date: 08/06/96 DOCKET NO. 94-23 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for chondromalacia, right knee. 2. Entitlement to service connection for chondromalacia, left knee. 3. Entitlement to service connection for refractive error. 4. Entitlement to an increased rating for hiatal hernia, with gastroesophageal reflux, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. A. McDonald, Counsel INTRODUCTION The veteran served on active duty from December 1964 to December 1990. This appeal arises from a September 1993 rating decision. The issues of entitlement to service connection for chondromalacia of the right and left knees, and entitlement to an increased rating for hiatal hernia, with gastroesophageal reflux are addressed in the remand portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection for refractive error is warranted as this disorder first became manifest while in service and is either due to his military occupational specialty or exposure to Agent Orange. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that service connection for refractive error must be denied as a matter of law. FINDING OF FACT Refractive error of vision is not a disease for which VA disability compensation benefits are payable. CONCLUSION OF LAW The claim of entitlement to service connection for refractive error is denied. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1995). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 1991). The threshold question to be answered in this case is whether the veteran has presented a claim upon which relief can be granted. See Sabonis v. Brown, 6 Vet.App. 426 (1994). If he has not done so, his appeal must be denied, as a matter of law. Concerning the claim for service connection for refractive error, the Board does not need to reach the question whether or not this claim is well grounded because the law concerning awards of service connection for refractive error is dispositive. In this regard, 38 C.F.R. § 3.303(c) (1995) provides that a refractive error of the eye is not a disease or injury within the meaning of applicable legislation governing the awards of compensation benefits. As such, regardless of the character or quality of any evidence which the veteran could submit, refractive error cannot be recognized as a disability under the terms of the VA Schedule for Rating Disabilities. In Sabonis v. Brown, 6 Vet.App. 426 (1994), the Court noted that in cases where the law and not the evidence is dispositive, as is the case here, a claim should be denied or an appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Accordingly, as refractive error is not considered a disability for VA compensation purposes, his claim must be denied. The veteran’s service medical records show that he had 20/20 distant and near vision on entrance examination in 1964. However, on service separation examination in 1990, near vision was reported as 20/200, bilaterally, corrected to 20/20. A May 1993 VA examination reported the veteran’s vision was 20/200 in the right eye, corrected to 20/20-2J1, with glasses, and 20/100 in the left eye, corrected to 20/20- J1, with glasses. Diplopia was not found, and the field of vision in both eyes was normal. The diagnosis was refractive error, both eyes. The veteran contends that his refractive error is due to his military occupational specialty or exposure to Agent Orange. However, his refractive error of vision of both eyes, diagnosed in service and shown on VA examination in 1993, is not a disease within the meaning of applicable regulations providing for payment of VA disability compensation benefits. 38 C.F.R. § 3.303(c) (1995). As such, the claim has no legal merit and must be denied. Since the evidence does not demonstrate the presence of any other chronic eye disorder, service connection cannot be granted for such a disorder. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). Although the RO did not specifically state that it denied the veteran’s claim on the basis that it had no legal merit, the Board concludes that this error was harmless. Cf. Edenfield v. Brown, 8 Vet.App 384 (1995) (en banc) (when the Board decision disallowed a claim on the merits where the United States Court of Veterans Appeals (hereinafter Court) finds the claim to be not well grounded, the appropriate remedy is to affirm, rather than vacate, the Board’s decision, on the basis of nonprejudicial error). The Board concludes that denying the appeal on this issue because the claim is not well grounded is not prejudicial to the veteran. See Bernard v. Brown, 4 Vet.App. 384 (1993). ORDER The claim of entitlement to service connection refractive error is denied. REMAND Upon review of the record, the Board concludes that corrective actions require a remand concerning the issues of service connection for chondromalacia of the right and left knees and an increased rating for hiatal hernia with gastroesophageal reflux. The United States Court of Veterans Appeals has held that the "fulfillment of the statutory duty to assist . . . includes the conduct of a thorough and contemporaneous medical examination . . . so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet.App. 121, 124 (1991). Although the veteran was afforded a VA general medical examination in 1993, the Board finds that this examination was inadequate for the issues of entitlement to service connection for chondromalacia of the right and left knees, and for entitlement to an increased rating for a hiatal hernia, with gastroesophageal reflux. Therefore, to afford the veteran every possible opportunity to present evidence in support of his claims for these disorders, the Board concludes that an additional VA examination would provide a record upon which a fair, equitable, and procedurally correct decision can be made. 38 C.F.R. §§ 3.326, 3.327 (1995). Accordingly, the case is remanded to the RO for the following actions: 1. All pertinent treatment records from private and VA sources subsequent to May 1993 should be obtained and associated with the claims file. 2. The veteran should be afforded a VA orthopedic examination to determine the nature and extent of any disorders of the right and left knees. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished, to include range of motion studies. The veteran’s history, subjective findings, and objective findings, as well as functional impairment should be reported. The claims file must be made available to the examiner prior to the examination to facilitate a thorough, longitudinal review of the evidence. 3. The veteran should be afforded a VA examination of the digestive system to determine the extent of his service-connected hiatal hernia, with gastroesophageal reflux. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished, if not contraindicated. The veteran’s history, subjective findings, and objective findings, as well as functional impairment should be reported. The presence of dysphagia, pyrosis, regurgitation, and substernal or arm or shoulder pain, if found, should be reported. The claims file must be made available to the examiner prior to the examination to facilitate a thorough, longitudinal review of the evidence. When the above actions have been completed, the RO should review the case to ensure that all of the foregoing development has been completed in full. If any development is incomplete, appropriate corrective action is to be taken. Thereafter, if any issue on appeal remains denied, the RO should provide the veteran and his representative a supplemental statement of the case, which should include a discussion of the evidence considered and a recitation of pertinent laws and regulations applicable to the issues on appeal. After the veteran and his representative have had an adequate opportunity to respond to the supplemental statement of the case, the appeal should be returned to the Board for appellate review. No action is required by the veteran until he receives further notice. MARY GALLAGHER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994). - 2 -