Citation Nr: 1302829 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 10-36 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for degenerative disc disease (DDD) and spondylosis of the cervical spine. 2. Entitlement to service connection for a bilateral eye disability. 3. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from July 1964 to November 1967, June 1976 to May 1979, and February 1981 to June 1983. This case comes to the Board of Veterans' Appeals (Board) on appeal of a May 2010 rating decision of the Lincoln, Nebraska, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for a bilateral eye condition and hepatitis C, and denied reopening of service connection for DDD and spondylosis of the cervical spine. Although the RO declined to reopen service connection for DDD and spondylosis of the cervical spine in the May 2010 rating decision, the question of whether new and material evidence has been received to reopen such a claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that new and material evidence has been received, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. In a March 2011 administrative decision, the RO granted an amended disability pension based on his change in dependency, which was a claim that the Veteran had previously appealed to the Board by an August 2010 VA Form 9 following an August 2010 statement of the case (SOC) noting the issue of entitlement to additional compensation for dependants. In a subsequent letter to the Veteran and his attorney, the RO notified the Veteran that the March 2011 decision granted the benefit sought on appeal and the appeal considering dependency is considered withdrawn; therefore, as the March 2011 administrative decision represents a full grant of the benefit sought on appeal, this issue is no longer in appellate status. The issue of entitlement to service connection for hepatitis C is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. Service connection for DDD and spondylosis of the cervical spine was last denied by the RO in a December 2001 rating action based on a finding that DDD and spondylosis of the cervical spine were not related to service or aggravated by his service-connected right shoulder disability; the Veteran was notified of this action and of his appellate rights, but did not file a timely appeal. 3. Since the December 2001 decision denying service connection for DDD and spondylosis of the cervical spine, the additional evidence that was not previously considered is cumulative and redundant, and does not relate to the unestablished facts of whether his DDD and spondylosis of the cervical spine is related to service or caused or aggravated by a service-connected disability necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. 4. The Veteran received no treatment for vision problems during service, had no injury or disease of either eye during service, had no superimposed injury of either eye during service, and symptoms of a bilateral eye disability were not chronic in service. 5. Symptoms of a bilateral eye disability have not been continuous since service separation. 6. The Veteran's current bilateral eye disability is not related to service. CONCLUSIONS OF LAW 1. The December 2001 rating decision that denied reopening of service connection for DDD and spondylosis of the cervical spine is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2011); 38 C.F.R. § 20.1103 (2012). 2. The additional evidence received subsequent to the December 2001 rating decision is not new and material to reopen service connection for DDD and spondylosis of the cervical spine. 38 U.S.C.A. §§ 5108, 7104 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156 (a) (2012). 3. A bilateral eye disability was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of the claims. A March 2010 letter provided notice in accordance with Kent regarding the claim to reopen service connection for DDD and spondylosis of the cervical spine, which was that DDD and spondylosis of the cervical spine were not related to service or aggravated by his service connected right shoulder disability, and also explained the evidence VA was responsible for providing and the evidence the Veteran was responsible for providing regarding both the claims to reopen and service connection for a bilateral eye disability. This letter also informed the Veteran of disability rating and effective date criteria regarding both claims. The Veteran has had ample opportunity to respond or supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service VA treatment records have been obtained; the Veteran did not identify any private treatment records. Pursuant to separate requests, both the Veteran and his current representative have been provided with a copy of his claims file. In a March 2011 statement, the Veteran's attorney requested a copy of the Veteran's claims file and VA medical records from the VA Medical Centers (VAMCs) in Lincoln, Grand Island, and Omaha, Nebraska. The Veteran's VA treatment records from the VAMC in Omaha, Nebraska, have been associated with the claims file. Similarly, records from a VA medical facility in Grand Island, Nebraska, have been obtained. It is observed that there is no VAMC in Lincoln, Nebraska. Therefore, the Veteran's attorney has not identified relevant records that can be obtained from a VAMC in Lincoln, Nebraska, as no such facility exists. To the extent that the attorney's statement identified treatment records from the Community-Based Outpatient Clinic in Lincoln, Nebraska, if such records existed, then there is no reason to believe that when the RO obtained treatment records from the VA Nebraska-Western Iowa Health Care System that any records from a medical facility in Lincoln, Nebraska, would not be included in the obtained records. The RO has obtained the Veteran's VA treatment records on numerous occasions and the Board is satisfied VA has made reasonable efforts to obtain relevant VA treatment records. The Veteran has not undergone VA examination with regard to the claim of service connection for a bilateral eye disability; however, the Board find that such examination is not necessary to decide the claim because the evidence establishes that there was no eye injury or disease in service. Additionally, the Veteran has not asserted that he suffered an injury or disease to his eyes during service or that he had continuous eye symptomatology or decreased visual acuity following service. Consequently, because there is no in-service disease, injury, or event to which the current bilateral eye disability could be related, VA's duty to provide an examination and medical opinion is not triggered. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Charles v. Principi, 16 Vet. App. 370 (2002); Bardwell v. Shinseki, 24 Vet.App. 36, 39-40 (2010) (holding that that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). Because there is no in-service injury or disease to which a medical opinion could relate a current disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant...if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). For these reasons, the Board is satisfied that VA has fulfilled the duties to notify and assist required by the VCAA, and appellate review may proceed without prejudicing the Veteran. Service Connection Laws 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). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. 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, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 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. See 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. See 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). 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, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's 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, 5 Vet. App. at 461 (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, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Whether to Reopen Service Connection for Cervical Spine Disorder Service connection for a neck condition was first denied by the RO in a July 1990 rating decision on the basis that, although a July 1982 STR showed treatment for pain in the cervical spine, service separation examination was normal, no treatment was furnished for the claimed disability, and the Veteran did not appear at a VA examination; thus the RO concluded that the in-service treatment was acute without residuals and service connection could not be granted. The Veteran appealed this issue to the Board, which in November 1996 remanded his claim for additional development. Thereafter, in a September 1999 decision, the Board denied service connection for a cervical spine disability, finding that it did not have its onset during, and was not aggravated by, service. The Board's September 1999 decision was final when issued. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). Service connection was again denied by the RO in a December 2001 rating decision on the basis that the medical evidence did not show that the DDD and spondylosis of the cervical spine was related to service or aggravated by the service-connected right shoulder disability. The Veteran did not appeal this decision, which became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2012). The RO noted that it addressed the merits of the Veteran's service connection claim in the December 2001 rating due to the new VCAA regulations. The last disallowance on any basis is to be final. Evans v. Brown, 9 Vet. App. 273 (1996). Therefore, the December 2001 rating decision that denied service connection for DDD and spondylosis of the cervical spine is considered to be the last final decision on this issue. In such cases, it must first be determined whether or not new and material evidence has been received such that the claim may now be reopened. 38 U.S.C.A. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App. 140 (1991). In September 2008, the Veteran filed to reopen service connection for a neck condition secondary to his service-connected right shoulder disability. Separate theories in support of a claim for a particular benefit are not equivalent to separate claims and a final denial on one theory is a final denial on all theories. As such, new and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory, such as secondary service connection. See Velez v. Shinseki, 23 Vet. App. 199, 206 (2009). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The basis for denial of reopening of the December 2001 rating decision was that the evidence was against a finding that the Veteran's DDD and spondylosis of the cervical spine, was a result of service or aggravated by his service-connected right shoulder disability. Evidence of record at the time of the December 2001 rating decision that denied service connection for DDD and spondylosis of the cervical spine includes the STRs that show that in August 1982 the Veteran was admitted for hospitalization for five days for cervical muscle spasm after a heavy strain; x-ray was unremarkable and he was given an assessment of muscle spasm; an April 1983 separation examination showing that clinical evaluation revealed that his spine and neck were normal; a July 1998 contract examination report noting that DDD was already present at the time of the original injury in 1982 and was aggravated by the injury; a second July 1998 contract examination report noting that the Veteran's current cervical complaints should not be attributed in any significant manner to the events of 1982; a February 1999 contract examination report opining that the in-service injury would not be expected to lead the development of cervical spondylosis and if he had cervical spondylosis present at that time, it was not felt that this one specific event would have lead to any significant change in the ultimate clinical outcome of his spondylosis; a second February 1999 contract examination opining that the level of his cervical disc degeneration could not be caused by the type of injury sustained by the Veteran during service; and, VA treatment records indicating that he complained of neck pain and was given various diagnoses related to his cervical spine. At the outset it is noted that evidence received within the one year period after the decision becoming final is to be considered as having been received in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). If new and material evidence is received within one year of the RO decision "and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final." See Young v. Shinseki, 22 Vet. App. 461, 466 (2009). In the current claim, no evidence related to the Veteran's neck, either medical or lay, was received by VA within one year of the December 2001 rating decision; thus, 38 C.F.R. § 3.156(b) is inapplicable in the current claim. In support of the current application to reopen service connection for DDD and spondylosis of the cervical spine, the Veteran has submitted additional VA treatment records showing treatment for, and diagnoses related to, his cervical spine, including treatment records indicating that he has compressive cervical myelopathy, cervical vertebra fusion with spondylosis, and that he had a cervical laminectomy procedure in November 2007. Additionally, the Board has reviewed the Veteran's lay statements made in conjunction with his current claim to reopen. In his March 2010 claim to reopen, he reported only that he claimed service connection for a neck condition secondary to his service-connected right shoulder disability, and in his subsequent Notice of Disagreement (NOD) and Form 9 substantive appeal he made no specific argument as to the onset of his claimed DDD and spondylosis of the cervical spine. Nor has the Veteran or his representative submitted any other lay statements regarding the neck or cervical spine. These contentions from the Veteran essentially amount to a contention that his current cervical spine disability is related to service or a service-connected disability, and are redundant of his lay contentions of record at the time of the December 2001 rating decision, which addressed both of these contentions. Thus, the Board finds that the Veteran's statements made in conjunction with his current claim to reopen merely repeat contentions he made earlier and that were considered and rejected by the RO in its December 2001 decision. See Smith v. West, 12 Vet. App. 312 (1990) (holding that if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened). Regarding the medical evidence submitted since the December 2001 rating decision, which shows that the Veteran has received various treatments for the numerous diagnoses associated with his cervical spine, the old evidence also contained evidence showing that he then had a cervical spine disability, to include DDD and spondylosis and numerous other diagnoses. This evidence is therefore cumulative and redundant of evidence previously considered by the RO in its December 2001 rating decision, which acknowledge that the Veteran had a cervical spine disability. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (finding that a claim based on a new diagnosis is treated as a new claim, obviating the need for new and material evidence). As noted above, new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board further finds that there is no indication that this evidence raises a reasonable possibility of substantiating the claim on either a direct or secondary basis. The Veteran has not claimed that he has experienced continuous neck pain since service separation, nor has his representative made any specific argument regarding the Veteran's cervical spine disability. Furthermore, the Veteran has contended that his cervical spine disability is related to his active service or is secondary to his service-connected right shoulder disability. These statements concerning causation are duplicative of his earlier statements and were considered in the last final December 2001 rating decision. Based upon the discussion above, the Board finds that the additional evidence of record received since the December 2001 rating decision is cumulative and redundant, or does not tend to relate the current DDD and spondylosis of the cervical spine, to service or a service-connected disability. As such, there is no indication that the evidence raises a reasonable possibility of substantiating the claim. Until the evidence meets the threshold burden of being new and material to reopen the claim, reopening of the claim must be denied, and the merits-based standard of benefit of the doubt does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service Connection for a Bilateral Eye Disorder In March 2010, the Veteran filed a claim of service connection for a bilateral eye disorder. He did not contend that his current eye condition is related to some specific disease or incident in service. Nor has he or his representative made such contentions in subsequent communications with VA. First addressing the question of current disability, the Board finds that the Veteran has a bilateral eye disability. A June 2007 VA treatment record noted that the Veteran was a new patient and reported developing decreased visual acuity over the past several months, now to the point that he has a very difficult time seeing. An assessment was given of visual acuity changes- refer to optometry for evaluation. June 2007 VA treatment records show that he presented for evaluation of decreased vision of both eyes for the past two months. Opthalmic testing was conducted and the Veteran was given impressions of senile cataracts, both eyes, visually significant, and polycythemia (internist's diagnosis). Additionally, March 2008 VA treatment records noted that the Veteran and was given impressions of hypermature cataract, left eye, and aphakia, right eye, status post lensectomy for anterior dislocated mature cataracts lens. The Veteran was referred to Omaha for cataract surgery of his left eye immediately. Thus, the Board finds that the Veteran currently has a bilateral eye disability. The evidence demonstrates that the Veteran did not have an injury or disease of either eye during service, and did not experience chronic symptoms of an eye disability in service. A review of all of the evidence of record shows that Veteran had no superimposed injury of either eye during service, received no treatment for vision problems during service, and symptoms of a bilateral eye disability were not chronic in service. STRs are negative for any complaints of, or treatment for, an eye injury or disease or vision problems. Clinical testing during March 1964 service entrance examination revealed the eyes were generally clinically normal and 20/20 distance vision bilaterally. Clinical testing during October 1967 service separation examination revealed the eyes were generally clinically normal and 20/20 distance vision bilaterally. At service separation the Veteran also denied then having, or ever having had, eye trouble. Clinical testing during January 1979 separation examination revealed his eyes were generally clinically normal and he had 20/20 distance vision bilaterally. The Veteran also denied then having, or ever having had, eye trouble. Clinical testing during January 1981 service entrance examination revealed the eyes were generally clinically normal and 20/20 distance vision bilaterally. The Veteran also denied then having, or ever having had, eye trouble. During the April 1983 service separation examination, clinical evaluation revealed that the eyes were generally normal. Distance vision was noted to be 20/20 bilaterally; refraction, near vision, heterophoria, color vision, depth perception, field of vision, night vision, red lens test, and intraocular tension were not tested. Furthermore, as noted above, the Veteran has not contended that he experienced any problems with, or had treatment for, either eye during service. Thus, the Board finds that the weight of the evidence demonstrates that the Veteran did not have eye injury, including superimposed eye injury, or chronic eye symptoms in service. The Board next finds that the weight of the evidence demonstrates that eye disorder symptoms have not been continuous since service separation in June 1983. As indicated, at the April 1983 service separation examination, the Veteran was found to have normal eyes and 20/20 distance vision. In January 1981 he denied then having, or ever having had, eye trouble and reported that he was in good health. No Report of Medical History form from April 1983 is of record. The post-service evidence shows no history, complaints, findings, or diagnosis of an eye disability or condition after service separation until many years after discharge from service. The June 2007 VA treatment record discussed above is the first medical evidence of record of the claimed eye disability, coming more than 20 years after discharge from service. The Veteran has not claimed to have suffered from observable symptoms of an eye disability since service separation. As a layperson, a veteran is competent to report symptoms capable of lay observation, such as clouded or blurred vision or decreased visual acuity during service and a continuity of such symptoms after service. See Layno v. Brown, 6 Vet. App. 465 (1994). However, neither the Veteran, nor his representative, have stated that he has suffered symptoms of bilateral eye disability since service separation. Consistent with the Board's finding of no continuity of symptoms since service is the fact that during the June 2007 VA treatment the Veteran reported as history that his visual acuity had decreased for several months, rather than since service separation. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Furthermore, the service separation examination in April 1983 reflects that the Veteran was examined and his eyes were found to be clinically normal, that his distance vision was 20/20, and during his January 1981 examination he denied then having, or ever having had, eye trouble and reported that he was in good health. His in-service history of symptoms in January 1981 is more contemporaneous to his two earlier periods of service and he has not claimed any type of eye disease or injury during his last period of service. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later). Additionally, as is the case presently, where the Veteran separated from service in June 1983 and did not receive treatment for his eyes until 2007, the absence of contemporaneous medical evidence of continuity of symptomatology for many years is one additional factor, along with other lay and medical evidence stated above, that the Board has considered in finding that the Veteran's recent statements of continuity are less probative than the other evidence of record on the question of continuity of symptomatology after service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). Thus, because the Veteran has never claimed to have suffered from a continuity of eye symptoms since service separation, and the evidence shows an absence of a continuity of symptoms since service, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. Next, service connection may be granted when the competent evidence establishes a nexus between active duty service and current complaints. As discussed above, VA's duty to assist the Veteran does not include providing him with a VA examination and opinion regarding the nature and etiology of his claimed bilateral eye disability. There is no competent evidence indicating a nexus between active duty service and the current bilateral eye disability. The Board has also considered the Veteran's statements asserting a nexus between his currently-diagnosed eye disability and active duty service. While the Veteran is competent to report symptoms as they come to him through his senses, the etiology of complex eye conditions, such as aphakia, senile cataracts, and polycythemia, are not the types of disorders that a lay person can provide competent evidence on questions of etiology or diagnosis as these conditions require specialized testing to diagnosis rather than being simple conditions that are defined by features capable of lay observation and the Veteran lacks the specialized medical training. Finally, the Board further notes that some disabilities, such as congenital or developmental defects and refractive error of the eye, are not deemed diseases or injuries for VA purposes. 38 C.F.R. § 3.303(c). Under certain circumstances, service connection may be granted for such disorders if they are shown to have been aggravated during service. See 38 C.F.R. § 3.303(c); VAOPGCPREC 82-90; VAOPGCPREC 67-90. In a precedent opinion, VA's General Counsel indicated that, for service connection purposes, there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect." As discussed above, there is no evidence in the STRs that the Veteran incurred a disease or injury to either eye and no "superimposed injury" to either eye. There is no reports of eye injury, disease, or complaints or diagnosis of any disease or injury affecting vision during service, and the distance vision was 20/20 on service separation examination in April 1983. Based on a review of the medical evidence of record, the Veteran currently appears to have refractive error of the eyes. However, absent superimposed disease or injury, which is not shown in the present case, service connection may not be allowed for congenital or developmental refractive error defects of the eyes, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Parker v. Derwinski, 1 Vet. App. 522 (1991); McNeely v. Principi, 3 Vet. App. 357, 364 (1992). The Board notes that no diagnosis of the basis for the Veteran's "defective vision" was assigned. Therefore, the denial of service connection for "defective vision" is not based on a finding that the Veteran's defective vision was due to a congenital defect; however, any competent evidence that the Veteran's defective vision was due to refractive error would preclude service connection for defective vision as a matter of law, as service connection for a refractive error of the eyes is precluded by the regulations governing benefits administered by VA. 38 C.F.R. § 3.303(c); Beno v. Principi, 3 Vet. App. 439 (1992) (congenital diseases may be service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations, but may not be granted for a congenital or developmental "defect," such as refractive error of the eyes; service connection may be granted for such disorder only if additional disability due to disease or injury is superimposed upon such defect in service). See VAOPGCPREC 82-90. Based on the evidence of record, the weight of the competent evidence demonstrates no relationship between the Veteran's current bilateral eye disability and his military service, including no credible evidence of in-service injury of disease and no continuity of symptomatology of eye problems such as clouded or blurred vision or decreased visual acuity which would serve either as a nexus to service or as the basis for a medical nexus opinion; therefore, the Board finds that the lay and medical evidence of record weighs against the claim for service connection for a bilateral eye disability. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a bilateral eye disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER New and material evidence not having been received, the appeal to reopen service connection for DDD and spondylosis of the cervical spine is denied. Service connection for a bilateral eye disability is denied. REMAND Service Connection for Hepatitis C The Board finds that additional development is required before the issue of service connection for hepatitis C is ripe for adjudication upon the merits. 38 C.F.R. § 19.9 (2012). The Veteran claims that his hepatitis C is related to service. A review of his STRs shows upon service enlistment examination in March 1964 he had two half inch scars on the right wrists and left knee. On service separation examination in January 1979, it was noted he had tattoos on both arms and his right leg. On service enlistment examination in January 1981 it was noted that he had multiple tattoos on his body. Thus, the evidence suggests the Veteran acquired tattoos during service. In a VA "Fast Letter" issued in June 2004 (Fast Letter 04- 13, June 29, 2004), VA noted that hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). Another "key point" was the fact that hepatitis C can potentially be transmitted with the reuse of needles for tattoos, body piercing, and acupuncture. As noted in VBA Fast Letter discussed above, tattoos are a risk factor for hepatitis C, as is intravenous (IV) drug use. February 1992 VA in-patient alcohol rehabilitation records noted that the Veteran had a history of polysubstance drug abuse, including IV heroin use. October 2009 VA treatment records noted that the Veteran reported he had hepatitis C and had antibodies for HAV and HBV from sharing needles with drug users. A VA examination was conducted in April 2010. The Veteran reported that the onset of his hepatitis C was in 1993, and that he had multiple tattoos during service, including in China. It was also noted that the Veteran was a polysubstance abuser, including heroin addiction for many years after military service. He admitted to sharing needles with other heroin addicts. The examiner noted that the Veteran's risk factors during service were tattoos, and risk factors after service were intranasal cocaine use, IV drug use, and high risk sexual practices. The examiner stated that he could not resolve whether the Veteran's hepatitis C was at least as likely as not caused by in-service tattoos or IV drug use without resorting to speculation because both activities are risk factors for hepatitis C. Once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the April 2010 VA examiner failed to fully explain why he could not provide an opinion as to the etiology of the Veteran's hepatitis C. The examiner failed to fully discuss the evidence of record, including whether the Veteran's several tattoos during service carried the same risk of hepatitis C as his years of IV drug use, including the numbers of exposures and periods of exposure of each risk factor, and the likely incubation period of hepatitis C following the in-service tattoos versus the later risk factor of IV drug use. Given this, the April 2010 VA examiner should provide an addendum opinion if possible, or, if the examiner is not available to do so, the Veteran should be scheduled for a new VA liver disorders examination. 38 C.F.R. § 3.159(c)(4). Accordingly, the issue of service connection for hepatitis C is REMANDED for the following actions: 1. Ask the April 2010 VA examiner to again review the relevant documents in the Veteran's claims file and offer an addendum medical nexus opinion on the direct service connection question posed below, which includes to state the opinion in terms of the question asked (at least as likely as not), and support the opinion with rationale. Is it at least as likely as not (a 50 percent or higher degree of probability) that the hepatitis C is causally or etiologically related to service, including his tattoos during service? In offering this opinion, the examiner is to comment on the Veteran's in-service tattoos, which occurred prior to June 1983, and the incubation/latency period of hepatitis C, which he identified as being diagnosed in 1993. The examiner is also to comment of the relative risk of several in-service tattoos verus numerous post-service incidents of IV drug use with shared needles, and the VA Fast Letter 04- 13, June 29, 2004, which discuss hepatitis C risks. 2. If the April 2010 VA examiner is not available to provide an addendum opinion or cannot provide such an opinion without resorting to speculation, the Veteran should be scheduled for a new VA liver disorders examination to assist in determining the etiology of his hepatitis C. Any tests deemed medically advisable should be accomplished. The examiner is to review the relevant documents in the Veteran's claims file and offer a medical nexus opinion on the direct service connection question posed below, which includes to state the opinion in terms of the question asked (at least as likely as not), and support the opinion with rationale. Is it at least as likely as not (a 50 percent or higher degree of probability) that the hepatitis C is causally or etiologically related to service, including his tattoos during service? In offering this opinion, the examiner is to comment on the Veteran's in-service tattoos, which occurred prior to June 1983, and the incubation period of hepatitis C, which he identified as being diagnosed in 1993. The examiner is also to comment of the relative risk of several in-service tattoos verus numerous post-service incidents of IV drug use with shared needles, and the VA Fast Letter 04- 13, June 29, 2004, which discuss hepatitis C risks. A complete rationale should be given for all opinions provided. 3. After completion of the above and any other development the RO/AMC should deem necessary, the RO/AMC should review the expanded record and determine if service connection for hepatitis C may be granted. The Veteran and his representative should be furnished an appropriate supplemental statement of the case, and should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. 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 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). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs