Citation Nr: 1302301 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 09-50 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for gout. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a left eye disability. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1975 to September 1991. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The issue of entitlement to service connection for gout is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that hypertension is the result of a disease or injury in active duty service or manifested to a compensable degree within one year following separation from service. 2. The preponderance of the evidence is against a finding that a left eye disability is the result of a disease or injury in active duty service. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. A left eye disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). VA also has a duty to assist Veterans in the development of their claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). When VA receives a complete or substantially complete application for benefits, it must notify the veteran of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the veteran is expected to provide. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.326 (2012); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Prior to the initial adjudication of the Veteran's claim, a letter dated March 2008 was sent to the Veteran in accordance with the duty to notify. 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, the March 2008 letter informed the Veteran of information and evidence necessary to substantiate the claims, information and evidence that VA would seek to provide, information and evidence that the Veteran was expected to provide, and information regarding the process by which initial disability ratings and effective dates are established. The Board finds that the duty to notify has been fulfilled, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The Veteran's service medical records and post-service private medical treatment records have been obtained, to the extent available. With regard to the Veteran's claim for service connection for hypertension, 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; (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. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not been scheduled for or provided with a VA examination for the claim of entitlement to service connection for hypertension. An examination is not necessary to decide this claim due to a lack of competent lay or medical evidence that the Veteran experienced hypertension in service or within one year following separation from service, or that the Veteran's hypertension disability is related to service. Without such evidence, a VA examination is not warranted for that claim. With respect to the Veteran's claim for service connection for a left eye disability, 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 (2007). The Veteran was provided with a VA examination in September 2012. The examiner reviewed the Veteran's claims file and past medical history, recorded his current complaints, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board finds that examination adequate for the purpose of rendering a decision. 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran declined the opportunity to present testimony before a Veterans Law Judge. The Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file, and it is not contended otherwise. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2012). Some chronic diseases, such as hypertension, are presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of 10 percent or more within one year of the date of separation from service. 38 U.S.C.A. §§ 1101(3), 1112 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). To establish service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). In order to prevail on the issue of service connection, there must be competent evidence of a current disability. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (current disability means a disability shown by competent medical evidence to exist at the time of the award of service connection); McClain v. Nicholson, 21 Vet. App. 319 (2007) (current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim, even if the disability resolves prior to adjudication); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in absence of proof of a present disability, there can be no valid claim for service connection because Congress has specifically limited entitlement in this manner). 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 Board resolves reasonable doubt in favor of the Veteran for each issue. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail on a claim for benefits. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hypertension The Veteran contends that he suffers from hypertension that is related to military service. The Veteran's VA and private treatment records indicate that he has been diagnosed with and received treatment for hypertension. Therefore, the Veteran has a current disability. However, there is no evidence that the Veteran experienced hypertension in service. The Veteran's blood pressure readings were consistently normal in service, and no in-service clinician indicated that the Veteran suffered from hypertension. The Board recognizes that the Veteran is competent, to an extent, to give evidence regarding what he experienced in-service. While a veteran is competent to provide a diagnosis of a simple, readily-observable condition such as a broken leg, he is not competent to provide evidence as to more complex medical questions, such as the presence or absence of a hypertensive disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Furthermore, the Veteran has not actually argued that he experienced hypertension in service. Therefore, the Board finds that the evidence of record does not support a finding of an in-service hypertension disease or injury. The Veteran denied high blood pressure on his separation examination and hypertension was not diagnosed. Furthermore, the evidence of record does not show that the Veteran had hypertension that manifested to a compensable degree within one year following his separation from service. The Veteran's claim for service connection for hypertension fails on that basis. As the Veteran has failed to show hypertension in service or within one year following service, the Board finds the remaining question of medical nexus to be irrelevant. However, the evidence of record also does not include any competent evidence showing that any current hypertension is related to the Veteran's service. The Veteran has claimed that the stress of service led to his hypertension. However, the Veteran is not competent to provide an opinion that requires medical expertise, such as the etiology of or diagnosis of hypertension. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board finds that his statements are not competent evidence relating any current hypertension to service. The Board finds that the preponderance of the evidence is against the claim for service connection for hypertension and the claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left Eye Disability The Veteran contends that he has a left eye disability that is related to service. The nature of the Veteran's claimed disability is unclear. In his February 2008 claim, the Veteran simply stated that he had a "left eye disability." In July 2009, the Veteran stated that his "eye was lanced" during active duty service. In December 2009, the Veteran stated that he had a strain of the left eye from continually reading in unlit areas. The Board has reviewed the medical evidence for any indication that the Veteran currently suffers from a left eye disability and has found none. Upon review of the Veteran's medical records, the Veteran received stitches in treatment of a laceration to his left eyebrow in service. That was the only in-service treatment relating in any way to the Veteran's left eye. The RO afforded the Veteran with a VA examination to determine whether the Veteran suffered from any residual scarring as a result of that injury, and the September 2012 examiner found that the Veteran had no scars on his body, and there was no diagnosis because the Veteran's condition had resolved. The Board acknowledges the Veteran's belief that he has a left eye condition, and he is competent to testify as to such condition. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Notwithstanding the Veteran's statements that he had a left eye disability, the objective evidence does not show that the Veteran has any current disability affecting the left eye. The Veteran, as a lay person, is not competent to opine that any symptomatology is attributable to a particular underlying disability. His statements are therefore insufficient to establish the presence of any left eye disability, and the opinions regarding the presence of a left eye disability are outweighed by the weight of the objective evidence that does not establish any left eye disability at any time during the course of the appeal. Without medical evidence of a current disability, the Veteran's claim fails due to the lack of showing of a current disability Thus, service connection may not be granted. Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Board finds the remaining questions of in-service disease or injury or other service-connected disability and medical nexus to be irrelevant. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, the preponderance of the evidence is against the claim and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension is denied. Service connection for a left eye disability is denied. REMAND The Veteran's claim for service connection for gout must be remanded for further development. Although the Board regrets the delay, it is necessary to ensure due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not been provided with a VA examination to determine the nature and etiology of any gout. Private and VA treatment records indicate that the Veteran has been diagnosed with gout. The Veteran was treated a number of times in service for joint pain in the hands and feet that was not the result of acute injury. In June 1991, the Veteran complained of aches, pain, and stiffness in the right hand and in the first toe. The Board acknowledges Veteran was never diagnosed specifically with gout in service, but with evidence of a current disability; a possible in-service event, injury, or disease; and the Veteran's lay statements regarding the relationship between the in-service event and his current disability, the issue must be remanded for a VA medical opinion to determine whether the Veteran's gout is etiologically related to service. 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the case is REMANDED for the following actions: 1. Obtain any VA treatment records dated since August 2010. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any gout. The examiner must review the claims file and must note that review in the report. A complete rationale for all opinions reached should be provided. After thoroughly describing the nature and etiology of any gout, the examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran's gout was incurred in or aggravated by the Veteran's active duty military service, or was at least as likely as not present in service, to include during times of complaint of pain in the hands and first toe without acute injury. The opinion should consider the Veteran's military records indicating that he complained of joint pain of the hands and feet in service. 3. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The Veteran is hereby informed that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). The Veteran has the right to submit additional evidence and argument on the matter that 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 the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs