Citation Nr: 1300948 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-03 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for an eye disorder, also claimed as right intermittent exotropia, double vision, or diplopia. 2. Entitlement to service connection for a spine disorder. 3. Entitlement to service connection for sleep apnea, to include as secondary to a spine disorder. 4. Entitlement to service connection for a bilateral shoulder disorder, to include as secondary to a spine disorder. 5. Entitlement to service connection for a bilateral knee disorder, to include as secondary to a spine disorder. 6. Entitlement to service connection for hemorrhoids, to include as secondary to a spine disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shana Z. Siesser, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1978 to February 1982. This matter comes before the Board of Veterans' Appeals (Board) from August 2007 and June 2008 rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran appeared before the undersigned Veterans Law Judge at a travel board hearing in January 2012. The record contains a transcript of that hearing. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issues of entitlement to service connection for a spine disorder, sleep apnea, bilateral shoulder disorder, bilateral knee disorder, and hemorrhoids are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran was not found to have an eye disorder on his official service entrance medical examination, and therefore, the presumption of soundness applies. 2. The Veteran's eye disorder did not clearly and unmistakably exist prior to service. 3. With resolution of the doubt in favor of the Veteran, the Veteran's eye disorder is related to the head trauma he experienced during service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, an eye disorder was incurred during active service. 38 U.S.C.A. §§ 1101, 1131, 1132, 1153 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). However, in the decision below, the Board has granted the Veteran's claim for service connection for an eye disorder. Therefore, the benefits sought on appeal have been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Law and Analysis The Veteran contends that he currently experiences an eye disorder, including right intermittent exotropia or double vision, which is a result of injuries sustained during a motor vehicle accident (MVA) in service. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1132. History provided by the Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). To rebut the presumption of sound condition under section 1132 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action. Black's Law Dictionary 1067 (5th ed. 1979). Therefore, where the presumption of sound condition at entrance to service cannot be rebutted, the fact for which the presumption stands--that is, that the Veteran was in sound condition at entry to service as to the disability for which he seeks service connection--must be assumed as a matter of law. Accordingly, where the government fails to rebut the presumption of soundness under section 1132, the Veteran's claim must be considered one for service incurrence or direct service connection. See Wagner, 370 F.3d at 1094, 1096 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat Veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). In this case, the Veteran was provided an entrance examination in January 1978. At that time, he reported having a medical history of eye trouble. However, a clinical evaluation of the eyes was normal, and the examining physician specifically noted that the Veteran had fully received from double vision due to an injury in 1976. Multiple service treatment records dated from September 1978 to August 1981 show complaints and treatment for diplopia. A January 1979 record showed that the Veteran had double vision since April 1976. His vision cleared in May 1976 but the diplopia returned in March 1978. A March 1979 PULHES profile showed a 2-R and a 2 for the Veteran's eyes. See Odiorne v. Principi, 3 Vet. App. 456 (1992)(observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). In February 1980, the Veteran was involved in a motor vehicle accident (MVA). An eye check showed pupils equal and reactive to light, and no vision problems were noted. He sustained a contusion to the head and brain, and an open wound to the scalp with hematoma. A March 1980 treatment note later indicated that the Veteran was three weeks status post laceration to the top of the head and was healing nicely with no after effects. June 1980 and September 1980 records show that the Veteran sustained a head trauma in an April 1976 MVA and had complained of double vision since that time. An August 1981 record also documented a history of double vision since a motor vehicle accident in April 1976. However, the Veteran's January 1982 discharge examination showed a normal clinical examination of his eyes. The available post-service treatment records show no complaints of visual problems in 2006 and 2007. The Veteran subsequently underwent a VA eye examination in June 2007. The examiner noted that the Veteran was involved in a motor vehicle accident in 1976 after which he developed intermittent diplopia. The examiner noted that there was also a second motor vehicle accident in 1988 during which the Veteran suffered a head trauma that again resulted in intermittent diplopia. After an examination of the eyes, the examiner diagnosed intermittent exotropia and opined that is likely related to the two previous head traumas. In December 2007, J.H., O.D. (initials used to protect the Veteran's privacy) submitted a letter to the VA on behalf of the Veteran. Dr. H. noted that the Veteran was involved in two traumatic motor vehicle accidents. The first one had occurred prior to service in April 1976, and the second one happened during service in February 1980. He noted that the Veteran had "extensive documentation of his skull fracture, right superior oblique muscle/third nerve paralysis." Dr. H. stated that he examined the Veteran in February 1998 for complaints of double vision. He opined that the initial permanent damage to the Veteran was done in the February 1980 motor vehicle accident and has progressively worsened over time. A June 2011 treatment record shows that the Veteran was treated for a history of diplopia, which he reported he had since a motor vehicle accident in 1976 and that worsened after a motor vehicle accident in 1980. The physician diagnosed him with exotropia. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for an eye disorder. In this case, the presumption of soundness applies because the Veteran's January 1978 enlistment examination found his eyes to be normal. Although the Veteran reported a history of diplopia following a motor vehicle accident in 1976, the report stated that his double vision had since resolved. A history provided by the Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson, 7 Vet. App. at 470; Crowe, 7 Vet. App. at 246. Moreover, the presumption of soundness has not been rebutted by clear and unmistakable evidence. There is some evidence indicating that the Veteran may have had a preexisting disorder, including his own reported medical history of double vision at the time of his enlistment examination and the treatment records that indicated that he experienced double vision following the 1976 accident. However, these records also noted that his diplopia resolved shortly thereafter. Moreover, the clinical evaluation in January 1978 was entirely normal, and the physician noted that the Veteran had had a full recovery following his accident in 1976. In addition, Dr. H. noted the Veteran's accident in 1976, yet stated that the initial permanent damage was sustained in February 1980. Therefore, the Board finds that there is insufficient evidence establishing that an eye disorder clearly and unmistakably existed prior to service. Based on the foregoing, it cannot be said that there is clear and unmistakable evidence showing that the Veteran had a preexisting eye disorder. Accordingly, the presumption of soundness is not rebutted. Therefore, the Board's analysis must turn to the issue of whether a current disorder was incurred during the Veteran's active service. See Wagner, 370 F.3d at 1094- 1096 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). VAOPGCPREC 3-03 (July 16, 2003). The evidence clearly shows that the Veteran was involved in a motor vehicle accident in service and had eye problems during that period, including complaints of diplopia and exotropia. The Veteran also has a current diagnosis of an eye disorder, to include exotropia and intermittent diplopia. In addition, the June 2007 VA examiner did attribute the Veteran's intermittent extropia, in part, to his accident during service, and Dr. H. opined that the initial permanent damage was sustained in 1980 and had progressively worsened since that time. Thus, the evidence of record suggests that the Veteran has a current eye disorder related to a motor vehicle accident in service. Thus, for the reasons described above, the Board concludes that there is a reasonable doubt as to whether the Veteran's current eye disorder is related to his military service. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for an eye disorder is warranted. ORDER Subject to the provisions governing the award of monetary benefits, service connection for an eye disorder is granted. REMAND The purpose of this remand is to afford the Veteran VA examinations to determine if he has disorders of the spine, bilateral shoulders, bilateral knees, sleep apnea, or hemorrhoids that are a result of his active service or secondary to a service-connected disorder. VA is obligated to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and, the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran contends that he has disorders of the spine, bilateral shoulders, bilateral knees, sleep apnea, and hemorrhoids as a result of service. Specifically, the Veteran stated that, while in service, he was involved in a motor vehicle accident in which he sustained many injuries. He contends that he has experienced pain in his spine, shoulders, and knees since that motor vehicle accident and that he currently has sleep apnea and hemorrhoids as secondary to his spine disorder. The Veteran underwent a VA examination in June 2007. The examiner diagnosed degenerative arthritis of the thoracic and lumbar spine. In his "remarks," the examiner noted "status post MVA with brain contusion and laceration to scalp with residual scar." However, no opinion was offered as to whether the Veteran's diagnosis of degenerative arthritis was related to service or the in-service MVA. Furthermore, no VA opinions have been offered as to the etiology of the Veteran's other claimed disorders, including his bilateral shoulder disorder, bilateral knee disorder, sleep apnea, and hemorrhoids. The June 2007 VA examination is inadequate for the purposes of adjudicating this claim. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, a remand is necessary to obtain an adequate examination, including opinions as to the etiologies of the Veteran's claimed disorders. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must ascertain if the Veteran has received any VA, non-VA, or other medical treatment for a back disorder, a bilateral shoulder disorder, a bilateral knee disorder, sleep apnea, and hemorrhoids that is not evidenced by the current record. The Veteran must be provided with the necessary authorizations for the release of any treatment records not currently on file. The RO/AMC must then obtain these records and associate them with the claims folder. 2. After obtaining any outstanding records, the Veteran should be afforded a VA examination to determine the nature and etiology of any spine disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran was involved in a motor vehicle accident during service in February 1980. He is also competent to attest to observable symptomatology both during and after service. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current spine disorders. For each current diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder is causally or etiologically related to the Veteran's military service, including the February 1980 motor vehicle accident. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 , copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The Veteran should be afforded a VA examination to determine the nature and etiology of any bilateral shoulder and bilateral knee disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran was involved in a motor vehicle accident during service in February 1980. He is also competent to attest to observable symptomatology both during and after service. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current shoulder and knee disorders. For each current diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder is causally or etiologically related to his military service, including the February 1980 motor vehicle accident. If not, he or she should opine as to whether it is at least as likely as not that that the disorder is either caused by or permanently aggravated by a spine disorder. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 , copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The Veteran should be afforded a VA examination to determine the nature and etiology of any sleep apnea that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran was involved in a motor vehicle accident during service in February 1980. He is also competent to attest to observable symptomatology both during and after service. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran currently has sleep apnea that is causally or etiologically related to his military service, including the February 1980 motor vehicle accident. If not, he or she should opine as to whether it is at least as likely as not that that the Veteran has sleep apnea that is either caused by or permanently aggravated by a spine disorder. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 , copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. The Veteran should be afforded a VA examination to determine the nature and etiology of any hemorrhoids that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran was involved in a motor vehicle accident during service in February 1980. He is also competent to attest to observable symptomatology both during and after service. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran currently has hemorrhoids that are causally or etiologically related to his military service, including the February 1980 motor vehicle accident. If not, he or she should opine as to whether it is at least as likely as not that that the Veteran has hemorrhoids that are either caused by or permanently aggravated by a spine disorder. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 , copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. Thereafter, the RO/AMC should review the claims files and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action should be taken. 7. The RO/AMC must then readjudicate the claims of service connection for a spine disorder, bilateral shoulder disorder, bilateral knee disorder, sleep apnea, and hemorrhoids. If any of the benefits sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case with reasons and bases for the decision. The Veteran and his representative should also be given an appropriate opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2012). _____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs