Citation Nr: 1516630 Decision Date: 04/17/15 Archive Date: 04/24/15 DOCKET NO. 13-21 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral cataracts (originally claimed as an eye condition), to include as due to diabetes mellitus type II. 2. Entitlement to an earlier effective date prior to September 15, 2010 for service connection for adjustment disorder (originally claimed as posttraumatic stress disorder (PTSD)). REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from April 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted service connection for adjustment disorder and established an effective date of September 15, 2010, as well as denying service connection for cataracts. The Board notes that while the Veteran originally applied for service connection for PTSD, the August 2011 VA examiner diagnosed the Veteran with adjustment disorder. Though an appellant may only seek service connection for PTSD, the appellant's claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed...." Id. Thus service connection was established for the acquired psychiatric disorder of adjustment disorder. In July 2014, the Veteran testified before the undersigned Veterans Law Judge during a central office hearing. A copy of the transcript has been associated with the claims file. The Board notes that, in addition to the paper claims file, there are electronic claims files associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims files in rendering this decision. FINDINGS OF FACT 1. The Veteran's cataracts are etiologically related to his service-connected diabetes. 2. The Veteran filed his claim for service connection for PTSD on September 15, 2010. Service connection for chronic adjustment disorder was subsequently granted, effective September 15, 2010. 3. There was no informal or formal claim, or written intent to file a claim for service connection for any acquired psychiatric disorder, including PTSD or adjustment disorder, prior to the September 15, 2010 claim. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, the criteria for service connection for cataracts, to include as secondary to diabetes mellitus type II, have been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2014). 2. The requirements for an effective date earlier than September 15, 2010 for the grant of service connection for adjustment disorder have not been met. 38 U.S.C.A. §§ 5107, 5108, 5109A, 5110, 7104, 7105 (West 2014); 38 C.F.R. §§ 3.1(p), 3.102, 3.155, 3.400 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Regarding service connection for cataracts secondary to diabetes, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.10, 3.156(a), 3.159, 3.326(a) (2014). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Regarding the claim for an earlier effective date, in correspondence dated in July 2011, prior to the April 2012 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2014). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The July 2011 letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claim for an earlier effective date for the grant of service connection for adjustment disorder arises from his disagreement with the effective date assigned following the grant of entitlement to service connection. Once a claim is granted, it is substantiated and additional notice is not required. Thus, any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Furthermore, because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2014). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. There is no indication that there is any available evidence outstanding that is relevant to the earlier effective date matter. As noted above, the Veteran presented testimony before a Veterans Law Judge. With respect to the hearing, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ noted the current appellate issue at the beginning of the hearing, and testimony was obtained concerning the Veteran's contentions and treatment history. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. Therefore, the duties to notify and assist have been met. Analysis - Service Connection for Cataracts Secondary to Diabetes Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For any disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2014). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. 38 C.F.R. § 3.310(b) (2014); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). When presented with conflicting evidence, it is the Board's responsibility to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert, 5 Vet. App. at 30; see also Colvin v. Derwinski, 1 Vet. App 171 (1991). When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2014). In April 2011, the Veteran was afforded a VA examination to assess his eye condition. The examiner noted that the Veteran did not currently show evidence of diabetic neuropathy of the eyes, but he did have a cataract. The examiner stated the Veteran did not appear to have diabetic changes in the retina. In April 2012, the April 2011 VA examiner submitted an addendum opinion on the Veteran's cataracts. The examiner opined that the condition was less likely as not caused by or a result of diabetes, because while the Veteran did have cataracts in both eyes they did not appear to be the type typically found or caused by diabetes, but rather an age-related type of cataracts. The examiner further opined that it could not be known for sure if the Veteran's cataracts were aggravated by diabetes, but given the level of the cataracts and lack of other diabetic eye changes it was less likely. In August 2014, the Veteran submitted a statement by J.J.G., M.D. of Eagle Physicians. The physician stated that the Veteran had been a patient of his for approximately 15 years and that he had a history of diabetes mellitus and a diagnosis of cataracts. The physician opined that it was more likely than not that the Veteran's cataracts were caused by his diabetes mellitus type II, because diabetes mellitus is a major risk factor for cataract formation. Included with this opinion was an article from the Journal of Ophthalmology entitled "Diabetic Cataract-Pathogenesis, Epidemiology and Treatment," which noted that cataract development occurs more frequently in diabetic patients. The Veteran also submitted an Optometry and Vision Science journal article titled "Age-Related Cataract is Associated with Type 2 Diabetes and Statin Use," which noted that diabetes has been shown to be a risk factor for age-related cataracts, and that use of statins to control cholesterol increased the risk of cataracts in patients with diabetes. It should be noted that VAMC records show the Veteran takes Rosuvastatin for his cholesterol. The Board finds the Veteran's private physician's opinion which is supported by the medical literature submitted to be entitled to probative value. The VA examiner's opinion which was based on an examination and review of the history is also entitled to probative weight. In comparing the probative value of the private physician's opinion against the opinion provided by the April 2011 VA examiner and April 2012 addendum opinion, the Board finds that the evidence is in equipoise as to whether the Veteran's cataracts are caused by his service connected diabetes. As a result, the Board finds that the evidence from the opinions by VA examiner and the private clinician are substantially in equipoise. In such situations, VA regulations state that the benefit of the doubt will be afforded to the Veteran. 38 C.F.R. § 3.102 (2014). Accordingly, service connection for cataracts is warranted, and the appeal is granted. Analysis-Earlier Effective Date The Veteran seeks an effective date earlier than the currently assigned September 15, 2010 for the grant of service connection for adjustment disorder. He contends that the effective date should be in March 2010 because he states he filed the claim for PTSD when he filed his other claims around the same time period. See July 2014 hearing transcript. The effective date for the grant of service connection based upon an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(b)(1) (West 214); 38 C.F.R. § 3.400(b) (2014). A claim is a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2014). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his/her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2014); Norris v. West, 12 Vet. App. 413 (1999). The Veteran testified at his July 2014 hearing that he filed his claim for PTSD in March 2010 and then later called VA when he had not heard anything regarding the claim. He also said he received a letter in July 2011 that was in regards to his March 2010 claim. He stated he did not have a copy of the original claim he submitted, and he went to his local Veteran's service organization to try to get copy, but they could not provide him with one. In this case, the record shows that the Veteran submitted a claim received on March 18, 2010 for an increase in service-connected diabetes, as well as a claim for service connection of an eye condition. A statement with the claim reiterated that the Veteran was requesting an increase in his diabetes rating, and he stated "I also wish to open a claim for service connection of eye condition which is secondary to my service connected diabetes condition." Later in March 2010, a VCAA letter was sent to the Veteran noting that VA was working on his claims for diabetes and diabetic retinopathy claimed as eye condition. PTSD was not listed as a claim. On March 31, 2010 an informal claim was sent in by the Veteran's representative requesting compensation for "heart condition and impotency secondary to diabetes." In April 2010, a VCAA letter was sent listing the Veteran's claims of coronary artery disease and loss of use (impotency). On September 15, 2010, the Veteran called the VA Salt Lake Regional Office and stated he was currently being treated for PTSD and would like to enter a claim for service connection for PTSD. This information was transcribed in a VA form 21-0820 Report of General Information. This was the first reference to a claim for PTSD in the claims file. In July 2011, the Veteran received a VCAA letter stated VA was working on his claims including PTSD, coronary artery disease, and impotency. This letter noted a claim date of March 31, 2010 and also noted the Report of General Information. While the Veteran contends that the July 2011 VCAA letter lists March 31, 2010 as a claim date, this is the claim date only for his heart condition and impotency, because as shown above, the March 31, 2010 claim explicitly listed a heart condition and impotency. As stated above, a claim, even an informal one, must identify the benefit sought. Also, the July 2011 VCAA letter listed the separate Report of General information, which noted the September 15, 2010 phone call claiming PTSD. There is no evidence the Veteran claimed PTSD on March 31, 2010. All evidence points to the fact that the claim for PTSD was submitted in September 2010, and was later grouped together with the heart and impotency claims in one VCAA letter, even though those other claims were made on an earlier date. Similarly, in July 2011, a Veteran Examination Request Information System (VERIS II) Examination Request Report for the Veteran's VA psychiatric examination listed the Veteran's PTSD claim date as March 31, 2010. However, as stated above, the March 31, 2010 claim submitted was specifically only for a heart condition and impotency. Accordingly, the Board finds that the information on the March 31, 2010 claim form is the most probative evidence as to whether the Veteran filed a claim for an acquired psychiatric disorder at that time. While the Veteran contends that he filed a claim for PTSD in March 2010, in this case, the Board finds no evidence of an informal or formal claim for service connection for PTSD, adjustment disorder, or any other acquired psychiatric disorder prior to September 15, 2010. While he did file claims for other disabilities, including for diabetes and its complications in May and July of 2004, the first evidence of an intention file a claim for an acquired psychiatric disorder was the September 2010 phone call listed in the Report of General Information. Prior to that, all formal or informal claims explicitly listed diabetes, and diabetes related conditions including an eye condition, coronary artery disease, and impotency, and did not in any way identify service connection for PTSD as a benefit that the Veteran was seeking. There was nothing in any of the statements that could be construed as a claim for any psychiatric disorder. Thus, in this case, the only date that could serve as a basis for the award of service connection is the date of receipt of the Veteran's application for service connection on September 15, 2010. Accordingly, the Board finds that the preponderance of the evidence is against finding that an effective date earlier than September 15, 2010 for the grant of service connection for adjustment disorder is warranted. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. §§ 3.102; 3.400(q) (2) (2014). ORDER Service connection for bilateral cataracts is granted. Entitlement to an effective date earlier than September 15, 2010 for the grant of service connection for adjustment disorder is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs