Citation Nr: 1218489 Decision Date: 05/24/12 Archive Date: 06/07/12 DOCKET NO. 08-21 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for partial blindness of the right eye. 2. Entitlement to service connection for headaches (claimed as migraines). 3. Entitlement to service connection for dementia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. M. Barnard, Senior Counsel INTRODUCTION The Veteran served on active duty from April 22 to October 22, 1958. This appeal arose before the Board of Veterans' Appeals (Board) from a June 2007 rating decision of the Indianapolis, Indiana, Department of Veterans' Affairs (VA) Regional Office (RO), which denied entitlement to service connection for the above-noted disabilities. This rating action also declined to reopen a claim for service connection for fibrous dysplasia of the right frontal and both ethmoid areas. The Veteran, however, failed to disagree with this aspect of the rating action, and this issue is not before the Board at this time. The issue of whether new and material evidence has been submitted to reopen a claim for service connection for fibrous dysplasia of the right frontal and both ethmoid areas has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for headaches (claimed as migraines) is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's diagnosed diabetic retinopathy and cataracts are not etiologically related to his period of active service. 2. The Veteran's memory loss, claimed as dementia, is not etiologically related to his period of service. CONCLUSIONS OF LAW 1. The Veteran's diagnosed diabetic retinopathy and cataracts were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002 and Supp 2011); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2011). 2. The Veteran's memory loss, claimed as dementia, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002 and Supp 2011); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary matter: VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2011), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between an appellant's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that all notification and development actions needed to render a decision as to the claims of service connection for partial blindness and memory loss, have been accomplished. The RO received the Veteran's claim of service connection April 2007. In May 2007, the RO sent to the Veteran a letter notifying him of the information and evidence needed to substantiate his claims of service connection. The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include private medical evidence. The RO further advised the Veteran on the types of evidence he could submit that would support his claims for service connection. The letter also contained the general criteria for how VA assigns disability ratings and effective dates. See Dingess, supra. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the May 2007 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claims. Thus, the Board is satisfied that the duty to notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Regarding the duty to assist, the Board finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his service treatment records (STRs) and VA treatment records. The Board noted that the Veteran has not been afforded a VA examination as to his claims for service connection for a right eye disorder and for memory loss, claimed as dementia. However, following a review of the evidence of record, it is determined that such examination is not necessary in order to make a decision as to these two claims. See 38 C.F.R. § 3.159(c)(4) (2011); see also McClendon v. Nicholson, 20 Vet. App. 79 (2006). Under McClendon, in initial service connection claims, VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. In the instant, and as will be explained further below, while the Veteran has been diagnosed with various eye disorders and has some memory loss, there is no evidence of any event, injury or disease in service, nor is there an indication that any current disorders may be related to his period of service. As such an examination is not necessary at this time. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Applicable laws and regulations The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual background and analysis Partial blindness, right eye The Veteran's service treatment records indicate that at the time of his preinduction examination performed in April 1958, he had frontal right bone predominance; however, he had no complaints concerning this, there were no functional impairments noted, and his visual acuity was 20/20 bilaterally. This mass was noted to cause some protuberance of the right eye, with some resultant loss of the temporal visual field; significantly, his visual acuity was always noted to be 20/20 and no underlying disorders of the right eye were noted. He was subsequently medically discharged from service, with a diagnosis of exophthalmos of the right eye secondary to fibrous dysplasia, which was also found to have preexisted service. The Veteran sought no treatment for any eye disorders until he was seen by VA in June 2007, following the submission of his claim, for complaints of blurry vision. His vision was tested in July 2007, although the results were found to be unreliable, particularly the visual field testing. He complained of decreased vision and a protruding skull. He did have normal cupping, with a normal range of eye pressure. The ultimate diagnosis was moderate nonproliferative diabetic retinopathy with clinically significant macular edema, worse on the right. In December 2007, he again complained of blindness in the right eye. He commented that he had had a bulging deformity over the right eye since his early 20's. The diagnosis was diabetic retinopathy. It was also noted in December 2007 that he might have dystopia of the right eye that could be related to Paget 's disease (which was thought to be the underlying cause of the right frontal bulging). In March 2008, he was noted to have undergone laser surgery for cataracts. After a careful review of the evidence of record, it is found entitlement to service connection for blindness of the right eye is not warranted. The Veteran does have current diagnoses of diabetic retinopathy and cataracts. Therefore, the requirement of the existence of a current disability has been established. See Davidson and Hickson, supra. However, there is no indication in the service treatment records of any disease or injury to the right eye. While he may have had some protrusion of this eye and some slight obstruction of the visual field due to a right frontal skull bulging (which is not service-connected), there is no suggestion of any underlying disorder of or injury to the right eye. Significantly, his visual acuity, which was tested both at entrance to and separation from service, was noted to be 20/20 bilaterally. No eye diseases or injuries were diagnosed in service. As a consequence, the requirement that there be evidence of an in-service incurrence or aggravation of a disease or injury has not been demonstrated in this case. Nor has there been any suggestion that any currently diagnosed diabetic retinopathy and/or cataracts are related to his period of service. While the Veteran has claimed that he has a right eye disorder that is related to the right frontal fibrous dysplasia, this latter condition has not been service-connected. Therefore, a claim on a secondary basis cannot be entertained at this time and the provisions of 38 C.F.R. § 3.310 (2011) are not for application. The Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b); Gilbert, supra; 38 C.F.R. § 3.102. Therefore, on the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence of record is against the claim for service connection for partial blindness of the right eye. Memory loss, claimed as dementia The Veteran's service treatment records are completely silent as to any complaints of, treatment for, or diagnosis of memory loss. Both his April 1958 preinduction and September 1958 Physical Evaluation Board examinations were completely normal and made no reference to any memory loss. Post-service VA outpatient treatment records note the Veteran's complaints in March 2008 that he had noticed recent memory problems. He stated that he had difficulty recalling things that people had told him, although he denied getting lost or forgetting people. No diagnosis was made. After a careful consideration of all of the evidence of record, the Board finds that entitlement to service connection for memory loss, claimed as dementia, is not warranted. Initially, since there were no complaints of or findings of memory loss in service, the requirement that there be an event, injury, or disease established in service has not been met. See Davidson, Hickson, supra. More importantly, despite the Veteran's complaints that he cannot recall things that people have told him, there is no current diagnosis of any underlying disorder or disease, such as dementia. The Board has considered the Veteran's own observations concerning memory loss, but finds that while he may be competent to describe episodes of memory loss, the matter of whether those lapses amount to a disorder is clearly within the province of medical expertise. The Veteran, as a layperson, thus is not competent to establish that he actually has a memory or other cognitive disorder. Therefore, a crucial element of service connection, the existence of a current disability, has not been established. Without the existence of a current disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating the service connection presupposes a current diagnosis of the condition claimed). In as much that Veteran has claimed that he has memory loss related to the right frontal fibrous dysplasia, the Board again notes that the latter condition has not been service-connected; therefore, a secondary claim cannot be addressed at this time and the provisions of 38 C.F.R. § 3.310 are inapplicable. The Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b); Gilbert, supra; 38 C.F.R. § 3.102. Therefore, on the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence of record is against the claim for service connection for memory loss, claimed as dementia. ORDER Entitlement to service connection for partial blindness of the right eye is denied. Entitlement to service connection for memory loss, claimed as dementia is denied. REMAND The Veteran has claimed that he has headaches that are related to his period of service. In this regard, a review of the service treatment records does note that he had headaches in service, which he stated at the time had become worse after he had bumped his head. VA outpatient treatment records developed between 2007 and 2009 reflect treatment for headaches, which he stated in March 2008 had been present for years. The Board finds that an examination would be helpful in determining what type of headaches the Veteran currently suffers from and whether they are related to the complaints noted in service. See 38 C.F.R. § 3.159(c)(4) (2011). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all VA and non-VA health care providers from whom he receives treatment for his claimed headaches. He should be requested to sign a release for any non-VA health care providers. Once this information is received, all heath care providers should be contacted and requested to provide copies of all relevant treatment records. If there are no relevant treatment records available, this should be so stated for inclusion in the claims folder; however, all efforts should continue until it is determined that further efforts would be futile. The Veteran and his representative will be informed if the requested records cannot be located. This notice should (1) identify the records VA was unable to obtain; (2) explain VA's efforts to obtain these records; (3) describe any further action VA will take on the claim, to include deciding the claim on the evidence of record unless the claimant submits the records VA was unable to obtain, and (4) notify the Veteran that he is ultimately responsible for providing the evidence. 2. Schedule an appropriate VA neurological examination of the Veteran's headaches. A copy of this remand and the claims folder must be provided to the examiner to review in conjunction with the examination, and the examiner must indicate in the examination report that such a review was undertaken. The examiner must answer the following questions: (a) what type of headaches does the Veteran currently have (for example, migraines and/or tension)? (b) if a specific headache disorder is diagnosed, is it at least as likely as not (at least a 50-50 probability) that it is related to his period of service (taking note of the headaches complained of in service)? A complete rationale for the opinions expressed must be provided. If an opinion cannot be made without resort to speculation, this must also be thoroughly explained. See Jones v. Shinseki, 23 Vet. App. 382 (wherein it was acknowledged there are instances when a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability). 3. If the decision remains adverse to the Veteran, he and his representative must be provided a Supplemental Statement of the Case (SSOC) and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs