Citation Nr: 1301980 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 08-33 092 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a skin disorder, to include as secondary to service-connected disabilities. 2. Entitlement to service connection for a vision disorder, to include as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran had active service from October 1947 to April 1951. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 decision rendered by the Salt Lake City, Utah Regional Office (RO) of the Department of Veterans Affairs (VA). The issues currently on appeal were previously before the Board in January 2010 and October 2011, when they were remanded for additional development of the evidence. The requested development has been accomplished with respect to the vision claim, and that claim was readjudicated in an August 2012 supplemental statement of the case. Thus, the Board may proceed with this matter. However, as will be explained in further detail below, the requested evidence has not been accomplished regarding the skin claim, as further action by the RO is necessary. The Board notes that the Veteran appears to be seeking service connection for the disabilities at issue herein on either a direct or secondary basis. See 38 C.F.R. §§ 3.303, 3.310 (2012). As such, the Board has recharacterized the issues on appeal as expressed above. The Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) in August 2011. A transcript of that proceeding is of record and has been associated with the claims file. Generally, the VLJ who conducts a hearing on appeal must participate in any decision made on the matter. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.202 (2012). Unfortunately, the VLJ who conducted the August 2011 hearing is no longer employed by the Board. In October 2012, the Veteran was sent a letter informing him of the August 2011 VLJ's departure and advising him that he could opt for an additional hearing before a VLJ currently employed by the Board. The Veteran was instructed to respond within 30 days. He did not respond, and the Board will proceed with the claims as appropriate. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for a skin disorder, to include as secondary to a service-connected disability, 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. FINDING OF FACT The Veteran has cataracts that are not related to his active duty service and are not the proximate result of or aggravated by any service-connected disability. CONCLUSION OF LAW A vision disorder was not incurred in active duty service and is not causally related to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by 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 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in January 2006 that fully addressed all three notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. The notice elements mandated by the Court in Dingess were contained in a March 2006 letter. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. The RO has obtained the service treatment records, VA clinical records, and private medical records. The record also contains the Veteran's statements to include his hearing testimony, and he has been afforded a VA medical examination in furtherance of his claim. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the February 2012 VA eye examination report is adequate because the findings and opinion obtained in this case are based on a review of all of the pertinent evidence of record, to include service treatment records, the Veteran's history of onset of symptoms, and a comprehensive examination, and provides a rationale for the opinion stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Refractive error of the eyes is not a disability within the meaning of applicable regulations providing for payment of VA disability compensation benefits. 38 C.F.R. §§ 3.303, 4.9 (2012). The VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 4, Section B provides guidance on evaluating conditions of the organs of special sense (i.e., the eyes). Refractive errors are defined to include astigmatism, myopia, hyperopia, and presbyopia. See M21-1MR, Part III, Subpart iv, 4.B.10.d. The Board notes that, based on the law discussed above, the term "eye disability" is not intended to include refractive error of the eyes. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. 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). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Discussion The Veteran asserts that he suffers from blurred vision due to the use of prednisone necessitated by service-connected disabilities. As such, he maintains that service connection for his claimed disability is warranted on a secondary basis. The Board observes that prednisone use for service-connected disabilities is noted in the record. At the outset, the Board finds that blurred vision is not a disability in itself. Rather, it is a potential symptom of disability. Generally, VA does not grant service connection for symptoms alone without an identified basis for those symptoms. Thus, the Board will ascertain whether there is any basis upon which to award service connection for any extant disability of the eyes. The service treatment records do not reflect any vision problems, eye complaints, or ocular diseases or injuries. The record contains no indication of eye complaints until several decades after service separation. On August 1981 VA examination, the Veteran indicated that his eyesight was diminished and that his vision was blurred and cloudy. Pursuant to examination, the examiner indicated that extraocular movements were normal and that the Veteran's eyes reacted to light and accommodation. The Veteran wore glasses for reading. The examiner did not render any specific diagnosis pertaining to the eyes. In an August 1982 written statement, the Veteran reported blurred vision that was more acute in recent weeks. On May 1983 VA examination, the Veteran complained of blurred vision. The examiner noted a moderate left lateral field defect. Extraocular movement was normal. Pupils were equal, round, and reactive to light and accommodation. In March 2005, the Veteran sought treatment for blurred vision that had become progressively worse since hospitalization in December 2002, when he was treated with high doses of prednisone. The diagnosis was of bilateral cataracts and of hyperopia, astigmatism, and presbyopia. The examiner explained to the Veteran that his vision was not clear due to the cataracts and would continue to deteriorate because of the cataracts. On VA examination in September 2006, the examiner found that the Veteran was hyperopic with open angles and mild nuclear sclerotic cataracts. Nonetheless, according to the examiner, the Veteran enjoyed excellent best corrected visual acuity. Bifocals were recommended. A private October 2007 eye examination report revealed complaints of blurred vision and a diagnosis of non-visually significant cataracts. On February 2012 VA eye examination, the examiner diagnosed nuclear sclerotic cataracts. The examiner found no visual field defects. As to the Veteran's cataracts, the examiner opined that the Veteran's nuclear sclerotic cataracts were age related and were not due to prednisone use. The examiner explained that the Veteran did not suffer from the type of cataract most commonly associated with steroid use, namely posterior subcapsular cataracts. As stated, blurred vision is merely a symptom for which service connection cannot be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds sub nom, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001) (holding in essence that symptoms alone cannot be service connected). In any event, the Veteran's blurred vision has been attributed to cataracts. The Board notes that cataracts are the only eye disorder present for which service connection is available. The Board indeed reminds the Veteran that refractive error of the eyes, to include astigmatism, myopia, hyperopia, and presbyopia, is not a disability for VA purposes. 38 C.F.R. §§ 3.303, 4.9. Thus, to the extent that the Veteran suffers from refractive error of the eyes, service connection is unavailable. Thus, the question left for the Board is whether service connection for the currently diagnosed nuclear sclerotic cataracts is warranted. The Board finds that service connection for nuclear sclerotic cataracts is not warranted on a direct basis. See generally 38 C.F.R. § 3.303. Cataracts were first noted decades after service separation in April 1951. Furthermore, the Veteran does not assert, and the evidence does not reflect, any relationship between the current cataracts and service. Rather than being related to service, the Veteran's cataracts have been characterized as age related. That fact and the multi-decade interval between service separation and the appearance of cataracts along with the lack of evidence of a nexus to service militates against finding that the currently diagnosed nuclear sclerotic cataracts are directly related to service. Id.; see also Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). As stated, the Veteran asserts that his cataracts have been caused by prednisone use necessitated by service-connected disabilities. The Board cannot rely on the Veteran's representations in this regard because he is not shown to possess any specialized medical expertise. Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that a layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms). The competent evidence of record reflects that the Veteran's nuclear sclerotic cataracts are not related to prednisone use. Rather they are related to the aging process. The competent evidence further indicates that the type of cataracts caused by prednisone use is not the kind from which the Veteran suffers. The competent medical evidence shows no association between the Veteran's cataracts and any service-connected disability to include medication used in its treatment. Consequently, because the competent evidence of record reflects no association between the Veteran's nuclear sclerotic cataracts and a service-connected disability, service connection for the cataracts is not warranted on a secondary basis as due to or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen, supra; see also Wallin, supra. This is not a case where the evidence is in relative equipoise, in which case the Veteran would prevail. Rather, the entirety of the competent and probative medical evidence shows that the Veteran's current eye disability, consisting of nuclear sclerotic cataracts, is a result of the aging process and not the result of service or a service-connected disability to include the use of prednisone. Because the competent and probative evidence weighs against the Veteran's claim, the benefit of the doubt rule is not for application. Alemany, supra. ORDER Service connection for a vision disorder is denied. REMAND In October 2011, the Board remanded the issue of entitlement to service connection for a skin disorder, to include as secondary to service-connected disabilities, to the RO for further development of the evidence. First, the Board asked that the RO associate with the record all VA clinical records dated after January 2010. Next, the RO asked that a VA medical opinion be obtained. The Board asked that the examiner examine the Veteran, review pertinent documents in the claims file, and opine regarding whether any extant skin disorder was due to service or to a service-connected disability. A full rationale for all findings and opinions was also requested. In February 2012, a VA examiner examined the Veteran but did not have access to the claims file. He opined that the currently diagnosed dermatitis, eczema, and squamous cell carcinoma were unrelated to service and provided a rationale for that opinion. In April 2012, a different VA examiner reviewed the claims file but did not examine the Veteran. The April 2012 VA examiner also concluded that no current skin disorder was related to service. Unfortunately, neither examiner provided an opinion as to whether any present skin disorder was proximately due to or aggravated by a service-connected disability. Where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall, supra. Thus, a remand for a medical opinion that is in compliance with the Board's directives is necessary. In its current remand the Board will pose the same questions asked in its October 2011 remand. To ensure that the record in complete, the RO/AMC must associate with the claims file all VA clinical records dated from August 1, 2012 to the present. See 38 C.F.R. § 3.159(c)(2); Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990) (holding that all VA treatment records that could potentially be helpful in resolving a claim must be obtained); see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Accordingly, the case is REMANDED to the RO/AMC for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Associate with the claims file all VA clinical records dated from August 1, 2012 to the present. 2. After any additional records are associated with the claims file, obtain a VA medical opinion. The claims folder, including a copy of this remand, must be made available to the examiner. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, the examiner must explain why an opinion cannot be provided to include a full rationale for that conclusion. The examiner must: (a) identify all extent skin disorders. (b) for each skin disorder identified, opine whether it is at least as likely as not (50 percent likelihood or greater) related to service. (c) for each skin disorder identified, state whether it is at least as likely as not (50 percent likelihood or greater) due to a service-connected disability to include varicose veins, right leg, osteoporosis, bilateral hips, deviated nasal septum, or medication used in the treatment of the service-connected disabilities. (d) for each skin disorder identified, state whether it is at least as likely as not (50 percent likelihood or greater) aggravated by a service-connected disability to include varicose veins, right leg, osteoporosis, bilateral hips, deviated nasal septum, or medication used in the treatment of the service-connected disabilities. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 3. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran. The supplemental statement of the case must contain a discussion of all of the pertinent evidence of record. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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 or by the Court 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). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs