Citation Nr: 1302284 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 09-42 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a head disorder. 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to service connection for a bilateral eye disorder, to include pseudophakia/cataracts. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served in the Reserve from April 1987 to April 2007 and on active duty for training from March 3, 2001 to March 15, 2001. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Seattle, Washington (RO). Jurisdiction of the case has been subsequently transferred to the RO in Roanoke, Virginia. In a July 2009 written statement and during an August 2012 hearing before the Board, the Veteran reported that he could no longer work due to pain from various medical conditions, to include his low back, neck, right arm, hand, leg and ankle. As such, the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disorders has been raised by the record, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it and it is referred to the RO for appropriate action. The issues of entitlement to service connection for a cervical spine disorder and entitlement to service connection for a head disorder are remanded the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT The evidence of record shows that the Veteran's current bilateral eye disorder is related to his military service. CONCLUSION OF LAW A bilateral eye disorder was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). With respect to the issue decided herein, the Board is granting in full the benefits sought on appeal. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Generally, in order to establish service connection for the claimed disorders, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In certain circumstances, lay evidence may also be competent to establish a medical diagnosis or medical etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Historically, the Veteran served in the U.S. Navy Reserve from April 1987 to April 2007. His service personnel records show that from March 3, 2001 to March 15, 2001, he served on active duty for training for 12 days. The Veteran claims that he currently an eye disorder as a result of trauma sustained during two separate inservice incidents. Through various written statements and during the August 2012 hearing before the Board, the Veteran reported that on March 10, 2001, while he was serving on active duty in a counter drug operation unit in Costa Rica, he fell approximately 40 feet off a cliff in the dark and sustained injuries to his back, neck, head and ankle. He also reported that two days later, he was a passenger in a motor vehicle accident, which collided with another vehicle on a highway intersection. He claims that this accident further aggravated his injuries. The Veteran's November 2001 and July 2005 reserve service physical examination reports are negative for any eye injuries and show normal examinations. However, the record includes an inservice personal injury report from a lieutenant commander attesting to the fact that the Veteran slipped and fell over a cliff in the dark on an authorized trip to white water rafting in Costa Rica. It was estimated that the fall was about 40 feet wherein the Veteran came in contact with various unknown forest objects and rocks. The Veteran ended his fall into a water area and as a result of the fall, he sustained several areas of scrapes and deep bruising. In May 2009, the Veteran also submitted buddy statements from P.G.A. and R.K.S. who testified that they were riding the same vehicle with the Veteran and were involved in the March 2001 car accident. They stated that no one was injured at that time. Photographs depicting the scene of the accident were submitted along with these statements. Private treatment records from the Veteran's ophthalmologist, Dr. D.A.K., show diagnoses of cataracts for the Veteran right and left eyes. Dr. K. performed surgeries for right eye cataract in November 2003 and left eye cataract in October 2008. In October 2012, the Veteran submitted a September 2012 written statement from Dr. K. along with a waiver of RO jurisdiction of the evidence. Dr. K. noted that he has been treating the Veteran for the eye condition for 11 years and reviewed the Veteran's medical and treatment records. Dr. K. opined that the Veteran's cataract/pseudophakia was more likely than not caused or aggravated by the motor vehicle accident in service. In support of this opinion, Dr. K. stated [The Veteran] had trauma shortly prior to the development of his cataracts. Certainly trauma has been known to cause cataractous changes and accordingly may have contributed to the development of [the Veteran's] cataracts and his need for cataract surgery to improve his visual acuity. Based on the totality of the evidence, the Board finds that the Veteran currently has cataracts or pseudophakia, which was incurred during his active military service. 38 U.S.C.A. § 5107(b). There is currently diagnosed cataract. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Furthermore, the medical evidence of record links the Veteran's bilateral cataracts to his military service. The Board finds probative the opinion provided by the Veteran's private ophthalmologist, Dr. D.A.K. After a review of the Veteran's medical records and with consideration of the Veteran's reported history, Dr. K. concluded that the Veteran's cataract was more likely than not caused by the motor vehicle accident in service. The opinion was based on the Veteran's reported history and was supported by a rationale that is consistent with other evidence of record. Because the cataract of both eyes were first diagnosed in November 2003, and Dr. K. noted that the Veteran had trauma shortly prior to the development of his cataracts, it is clear that Dr. K. is referring to the March 2001 motor vehicle accident, which occurred while the Veteran was serving on active duty for training. While the Veteran's accounts are not supported by a contemporaneous medical history, a medical opinion cannot be disregarded merely because the rationale was based on a history as provided by the Veteran. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Further, the in-service personal injury report by the lieutenant commander, P.G.A., who was also a passenger in the vehicle involved in the March 2001 motor vehicle accident, as well as buddy statements from the parties involved in the car accident, strongly corroborate the fact that the Veteran was involved in two separate accidents just over three days in March 2001. In this regard, the Board finds that the Veteran's testimony and lay statements submitted on his behalf regarding the in-service injuries to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing). The Board also highlights that there is no basis in the record to question the credibility of the Veteran's statements regarding the March 2001 accidents. As there is no evidence of record that contradicts the Veteran's claim, they must be presumed to be accurate. Any reasonable doubt regarding the accuracy of his statements is resolved in favor of the Veteran. See 38 C.F.R. § 5107(b). Accordingly, the Board finds that the evidence, at the very least, is such as to allow application of the benefit of the doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Therefore, entitlement to service connection for an eye disorder is warranted. ORDER Service connection for a bilateral eye disorder is granted. REMAND The Veteran is seeking service connection for a cervical spine and a head disorder due to inservice incidents resulting in trauma to the head and neck. As discussed above, the Veteran has reported that in March 2001, he sustained a trauma to the head and neck when he fell approximately 40 feet off a cliff in the dark, and two days later when he was involved in a car collision accident, which aggravated the injuries to the head and neck. Based upon its review of the Veteran's claims file, the Board finds there is a further duty to assist the Veteran with these claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In disability compensation claims, VA must provide a medical examination when 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, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. With respect to the Veteran's cervical spine disorder, a January 2002 private treatment report reflects that the Veteran was evaluated for multiple complaints to include back pain and tingling in the hands. The Veteran reported that approximately a year previously, he fell off a cliff about 30 to 40 feet while in Costa Rica, and then a few days later, he was involved in an automobile accident. It was noted that the Veteran did not receive any treatments for either of the injuries in Costa Rica. However, he visited Lee-Hi Urgent Care when he came back and x-rays were taken, which reported negative. Dr. D.J.N. noted that the Veteran's hand symptoms could possibly be carpal tunnel syndrome, however, cervical stenosis, or possibly radicular symptoms referred from the neck should be ruled out. A June 2005 private physical therapy report reflects that the Veteran was seen for neck pain status post motor vehicle accident in April 2005. He complained that both sides of his neck were sore and stiff. The assessment was possible edema in the cervical spine contributing to pain and neural compression secondary to muscular spasm. He received physical therapy treatments for his neck problem from June to August of 2005 and in March 2006. In a February 2006 private treatment report, the Veteran complained of pain in his neck and numbness in both of his hands that he related to a motor vehicle accident in April 2005. The impression was a history of cervical strain, with previous x-rays that did not show any definite abnormality and possible cervical disc diseases. Magnetic resonance imaging (MRI) of the cervical spine revealed minimal right paracentral disc protusion at the level of T1-T2, with no spinal stenosis. The treating physician noted an impression of minimal cervical disc disease, but probably not at T1-T2, which it was actually thoracic. In a September 2008 private treatment report, the Veteran reported the history of March 2001 accidents. He stated that after the fall off a cliff, he was dazed and had a lot of bruises. He reported that his soreness wore off and he had isolated neck pain. He further stated that he was unsure if he had change in the neck pain following the car accident two days later, however, he complained of neck pain when he was seen in an urgent care facility after he returned from Costa Rica. He related that the problems got worse since that time. He complained of intermittent, occasional neck discomfort and constant left hand numbness, generally. Follow-up treatment reports dated from September 2008 to December 2008 note diagnoses of cervicothoracic myalgia or exacerbation of the left cervicothoracic spasms and pain. Private treatment reports from Dr. M.E.J., dated from June to August 2009, show the Veteran's reports of continuing neck pain. He reported gradually-increasing pain in the cervicothoracic spine. The impressions were right cervicothoracic spasms and pain and possible cervical degenerative disc disease. In an August 2009 private treatment report, the Veteran stated that after discontinuing his activity at work, specifically prolonged computer work, his neck pain essentially resolved. Private treatment reports from Dr. J., dated from January to May 2012, reflect that the Veteran continued to report persistent neck pain. He reported that his neck still hurt and that he was told by his orthopedist that he had "disc bulges" per x-ray taken five years previously. A January 2012 MRI of the cervical spine revealed C2-3 mild disk bulge; C6-7 mild disk bulge, with no stenosis; and mild disc space narrowing at C4-5. The diagnosis was mild degenerative disease. In October 2012, the Veteran submitted a September 2012 written statement from his private chiropractor, P.D.K., D.C., along with a waiver of RO jurisdiction of the evidence. Dr. K. noted that he has been treating the Veteran for the neck condition for 2 years and 6 months, and that he reviewed the Veteran's medical and treatment records. Dr. K. opined that the Veteran's cervical spine condition was more likely than not caused or aggravated by the motor vehicle accident during service. In support of this opinion, Dr. K. stated that cervical spine degeneration is greatly aggravated by acceleration/deceleration-type injuries causing progressive degeneration and inflammation resulting in a worse condition. The Board observes that the record documents history of two different motor vehicle accidents, one in March 2001 and the other in April 2005. The opinion provided by the Veteran's chiropractor links the Veteran's current cervical spine disorder to the motor vehicle accident in service because cervical spine degeneration is greatly aggravated by acceleration/deceleration-type injuries causing progressive degeneration and inflammation resulting in a worse condition. However, Dr. K. provided no explanation as to why the Veteran's current cervical spine disorder resulted from the motor vehicle accident in service, and not from the subsequent car accident in April 2005. To that effect, in the February 2006 private treatment report, the Veteran complained of pain in his neck and numbness in both of his hands that he related to a motor vehicle accident in April 2005. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In regard to the Veteran's claim of service connection for a head disorder, during his August 2009 RO hearing, he testified that he hit his head in the sun visor area of the car at the time of the March 2011 car collision accident. He stated that he was pushed completely up against the dash. The record includes lay evidence corroborating his claim as to these inservice incidents, and the Board has already found that the Veteran's lay statements regarding the alleged head injury due to the fall and motor vehicle accidents to be competent and credible evidence. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay person is competent to testify to that which he or she has actually observed and is within the realm of his or her personal knowledge). Based on the foregoing, the Board finds that a VA examination is necessary to adequately decide the merits of the claims. McLendon, 20 Vet. App. at 83. Accordingly, the case is remanded for the following actions: 1. The RO must request that the Veteran identify all VA and non-VA medical providers who have treated him for his cervical spine and head disorders, since his discharge from the service. The RO must then obtain copies of the related medical records that are not already in the claims folder. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claims, and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the RO must afford the Veteran the appropriate VA examination to determine the current existence and etiology of any cervical spine and head disorders found. The claims file and all records on Virtual VA, as well as this remand, must be made available to the examiner in conjunction with the examination, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records, if any, that are reviewed. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Following a review of the medical records in the claims file, as well as the Veteran's lay statements, the examiner must state whether any current cervical spine or head disorder is related to the Veteran's active duty service, specifically the incidents involving a 40-feet fall off a cliff and a motor vehicle accident in March 2001. In rendering the opinion, the examiner must address any and all conflicting medical opinion of record. All opinions provided must include a complete rationale. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran 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). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs