Citation Nr: 0812282 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-35 665 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for chronic lymphocytic leukemia (CLL). 2. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for loss of vision of the left eye. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The veteran had active duty from July 1963 to July 1965. This matter comes before the Board of Veterans' Appeals (Board) from a June 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. CLL was not present in service or for nearly four decades after service discharge, and the preponderance of the evidence is against a finding that CLL was related to service, including exposure to herbicides. 2. The veteran's left eye vision loss was not caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. CLL was not incurred in or aggravated by service and may be not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 2. The criteria for compensation under 38 U.S.C.A. § 1151 for left eye vision loss have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.358 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in January 2005, the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claims. In March 2006 and July 2006, the RO also notified the veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2007). Service medical records have been associated with the claims file. All identified and available treatment records have been secured. The veteran has been medically evaluated in conjunction with his claim under 38 U.S.C.A. § 1151 for loss of vision of the left eye. The duties to notify and assist have been met. Analysis Service Connection The veteran contends that it's possible that he was exposed to herbicides in service which lead to his current CLL. When seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). A veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed during such service to certain herbicidal agents (e.g., Agent Orange) unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. If the veteran was exposed to an herbicide agent during service, CLL shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). However, as indicated above, notwithstanding the foregoing, regulations provide that service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. Combee v. Brown, 34 F. 3d. 1039 (Fed. Cir. 1994). The United States Department of Defense ("DOD") has confirmed that Agent Orange was used from April 1968 through July 1969 along the demilitarized zone ("DMZ") in Korea. DOD defoliated the fields of fire between the front line defensive positions and the south barrier fence. If it is determined that a veteran who served in Korea during this time period belonged to one of the units identified by DOD, then it is presumed that he or she was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) will apply. See MR21-1MR, Part IV, Chapter 2, Section C. Initially, the Board notes that the veteran did not have Vietnam service nor is he claiming such, and is therefore not afforded the presumption of Agent Orange exposure while serving in Vietnam during the Vietnam era. Instead, he contends that he was exposed to herbicides while stationed in Korea. Service personnel records show that the veteran was assigned to the United States Army Pacific Korea from February 1964 to March 1965, which is outside the timeframe set forth by DOD noted above. The veteran did not serve along the demilitarized zone in Korea between April 1968 and July 1969 during which time herbicides were in use. See M21- 2 MR, Part IV, Section C. Additionally, the National Personnel Records Center (NPRC) reported in January 2006 that there were no records showing that the veteran was exposed to herbicides. In fact, the veteran indicated at his April 2006 hearing that he was not even sure if he was in contact with Agent Orange during service. While presumptive service connection may be granted for CLL due to herbicide exposure, such a basis is not warranted in this case as there is no evidence that the veteran was exposed to herbicides in Korea during the recognized period. Notwithstanding, even if a veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). Service medical records are silent for any findings of CLL. The first indication of CLL in the claims folder was in August 2002 which was noted 37 years after service discharge. The lengthy period without treatment and lack of documented evidence of continuity of symptomatology weighs against the claim. Additionally, there is no competent medical evidence that CLL is related to service. The Board declines to obtain a medical nexus opinion with respect to the veteran's claim because there is no evidence of CLL in service or for nearly four decades following service. Thus, while there is current evidence of CLL, there is no true indication that that it is associated with service. See Charles v. Principi, 16 Vet. App. 370 (2002). Indeed, in view of the absence of findings of CLL in service or until several decades post-service discharge, any opinion relating CLL to service would certainly be speculative. However, service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. The duty to assist is not invoked, even under Charles, where "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A. 5103A(a)(2). In adjudicating this claim, the Board must assess the competence and credibility of the appellant. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Recently, in Barr v. Nicholson, 21 Vet. App. 303 (2007), the United States Court of Appeals for Veterans Claims (Court), citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge; see also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In this capacity, the Board finds the veteran is competent to attest to his observations of his disability. Layno; 38 C.F.R. § 3.159(a)(2). However, as a lay person, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of his disability (i.e. that he developed CLL as a result of service, including due to herbicide exposure in service) because he does not have the requisite medical expertise. See, e.g., See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The veteran has also submitted treatises and a newspaper clipping in support of his claim. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Here, crucially, the treatise evidence which has been submitted by the veteran is general in nature and does not specifically relate to the facts and circumstances surrounding his particular case, and does not constitute competent medical evidence. The preponderance of the evidence is against finding that the veteran's CLL was incurred in or is otherwise related to service, including herbicide exposure, and the claim must be denied. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 38 U.S.C.A. § 1151 for Loss of Vision of the Left Eye The veteran contends that he has vision loss in the left eye due to VAMC error. He asserts that a private physician recommended laser surgery to treat a blood clot but the VA treated him with aspirin which caused vision loss. Where a veteran suffers an injury or aggravation of an injury as a result of VA medical treatment, and the injury or aggravation results in additional disability or death, then compensation, including disability, death, or dependency and indemnity compensation, shall be awarded in the same manner as if the additional disability or death were service- connected. 38 U.S.C.A. § 1151. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. In order for the disability or death to qualify for compensation under 38 U.S.C.A. § 1151, the disability or death must not have been the result of the veteran's willful misconduct, and must have been caused by VA hospital care, medical or surgical treatment, or examination. Additionally, the VA hospital care, medical or surgical treatment, or examination that proximately caused the disability or death, must have been careless, negligent, lacked proper skill, or involved an error in judgment, or an event that was not reasonably foreseeable. 38 U.S.C.A. § 1151(a). The additional disability or death must not merely be coincidental with the VA hospitalization, medical, or surgical treatment. Finally, proof of aggravation, in the absence of evidence satisfying the causation requirement, will not suffice to make the additional disability or death compensable. 38 C.F.R. § 3.358(c)(1)(2). In determining whether additional disability exists, the veteran's physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with her physical condition subsequent thereto. With regard to medical or surgical treatment, the veteran's physical condition prior to the disease or injury is the condition which the medical or surgical treatment was intended to alleviate. Compensation is not payable if the additional disability or death results from the continuance or natural progress of the disease or injury for which the training, treatment, or hospitalization was authorized. 38 C.F.R. § 3.358(b)(1), (2). A November 2001 Ponce VA treatment record noted the veteran's complaint of blurred vision for six months. A private medical record dated in May 2003 noted an impression of left central retinal vein occlusion and recommendation of argon laser treatment. In June 2003, the veteran presented to the Boston VA ER/urgent care unit and indicated that he had been seen in Puerto Rico and told he needed laser surgery for a clot below his left eye and that it would take six months to be seen there. A June 2003 VA Boston ophthalmology record noted a central retinal vein occlusion two weeks before and that the veteran noticed blurry visual acuity in the left eye. At first, he noticed a spot which then progressed; he had blurry visual acuity over two days and visual acuity had been stable since. There was no pain. An assessment of left central retinal vein occlusion was noted. The veteran was scheduled for an appointment in the Boston eye retina clinic in July 2003; however, he did not show for the appointment. Subsequently, an August 2003 VA San Juan record noted the veteran had sudden loss of vision in the left eye in June 2003 and that he had been taking aspirin since the episode. The impression was left central retinal vein occlusion. Subsequent treatment records dated in October 2003 and June 2004 noted left eye vision loss. On review of the record, the Board finds that entitlement to disability compensation for left eye vision loss, pursuant the provisions of 38 U.S.C.A. § 1151, is not warranted. The record contains a January 2006 VA examination report which was completed in conjunction with review of the claims folder. Upon review of the claims folder and examination of the veteran, the examiner noted diagnoses of refractive error, severe visual impairment of the left eye secondary to central retinal vein occlusion, and senile cataracts. He indicated that the loss of vision of the left eye was caused by or a result of the central vein occlusion which was not caused or aggravated by an medical treatment given or by an omission in treatment at the VHA facilities. The examiner added that central retina vein occlusion should be not treated by laser unless there are signs of retina, optic nerve or iris neovascularization; prophylactic laser treatment was not shown to have any advantage without any sign of neovascularization. The Board finds the January 2006 VA medical opinion to be highly probative in that it was made by an examiner following a thorough review of all evidence of record. The record does not contain a medical opinion that attributes the veteran's left eye vision loss to VA care. The Board finds the veteran is competent to attest to his observations of his disorder. Layno; 38 C.F.R. § 3.159(a)(2). However, as a lay person, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder (i.e. that he currently has left eye vision loss as result of VA care) because he does not have the requisite medical expertise. See, e.g., See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). In sum, the Board finds that the preponderance of the evidence of record indicates that the loss of left eye vision was not the result of medical treatment given or any omission in medical treatment by the VA. Absent any evidence to the contrary, there is no doubt to be resolved, and entitlement to disability compensation under the provisions of 38 U.S.C.A. § 1151 for ventral hernia is not established. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for CLL is denied. Compensation under the provisions of 38 U.S.C.A. § 1151 for loss of vision of the left eye is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs