Citation Nr: 1304124 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 10-05 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a lung condition, to include pneumonia. 3. Entitlement to service connection for chronic eye pain, to include visual defect, of both eyes and a history of a horseshoe tear of the left eye, status post-right eye laser repair. 4. Entitlement to service connection for chronic bone and body pain (also claimed as chronic pain: bilateral shoulder pain; arm, neck, back, and wrist pain). ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from April 1965 to March 1967. These matters come before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Hartford (Newington), Connecticut, which-in pertinent part, denied entitlement to service connection for hypertension; chronic headaches; a lung condition, to include pneumonia; chronic left eye pain, to include visual defect; and chronic bone and body pain to include chronic shoulder, arm, and back pain. In April 2012, the Board denied entitlement to service connection for a chronic headache disability and remanded the remaining issues the RO, via the Appeals Management Center (AMC), in Washington, DC, for additional development. The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, DC. The Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and there are currently no pertinent records that are not also in the paper claims file. Nonetheless, any further development or adjudication of this matter should take into account this paperless claims file. FINDINGS OF FACT The Veteran does not have a current respiratory or lung disorder. CONCLUSIONS OF LAW The criteria for entitlement to service connection for a respiratory disability, to include residuals of pneumonia, are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2005). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Under the VCAA, 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. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA 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. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In pre-adjudication letters dated in June and December 2007, the RO notified the Veteran of the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. See 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). This letter also informed him of the types of evidence that would be considered to substantiate his claim and the information and evidence needed to sustain a claim for service connection, to include claims based on asserted radiation exposure. In addition, the letters met the notice requirements set out in Dingess. Neither the Veteran nor his representative has alleged that notice has been less than adequate. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The letters, nonetheless, told him to submit relevant evidence in his possession. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This 'duty to assist' contemplates VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). Service treatment records and post-service medical records have been associated with the claims file. There are no reported records that remain outstanding. The Veteran has been afforded examinations that yielded adequate medical opinions. In his informal claim for service connection and substantive appeal, the Veteran asserted all of his claimed disorders are due to in-service radiation exposure due to his having worked around radar equipment. The claims file reflects the RO did not conduct any development specified in 38 C.F.R. § 3.311 (2012), pertaining claims of exposure to ionizing radiation. While the Veteran has reported exposure to radar, he has not reported any exposure to ionizing radiation, nor has he reported participation in any of the radiation risk activities listed in 38 C.F.R. § 3.309(d). There is no other evidence of such exposure. Hence the provisions of 38 C.F.R. § 3.311 are not applicable. The December 2007 VCAA letter informed the Veteran of the requirements for substantiating a radiation-related claim, and the Veteran did not respond to any of the instructions of that letter. The Board's April 2012 remand sought to afford the Veteran VA examinations with regard to his remaining claims. The pulmonary examiner found no current disability and provided reasons for this finding that took into account the Veteran's reports. Hence, the Board may address the merits of the appeal without prejudice to the Veteran. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Governing Law and Regulation Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status will not always constitute competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Analysis Respiratory. Service treatment records dated in September 1966 note the Veteran's complaints of feeling cold and tired. He denied a sore throat but reported a nonproductive cough, primarily at night, anorexia, occasional nausea and dizziness. Physical examination revealed a normal temperature, ears within normal limits, reddened throat, and reddened nose with yellow exudates. The examiner noted there was no remarkable adenopathy. The diagnosis was viral upper respiratory infection, and he was treated with aspirin and Ornade tablets. There were no subsequent entries. The Veteran indicated on his January 1967 Report of Medical History for his examination at separation that he had a history of pain and pressure in the chest. The examiner noted, however, that the Veteran had noted a childhood occurrence, and there had been no sequlea. The January 1967 Report Of Medical Examination For Separation reflects the Veteran's lungs and chest were assessed as normal, and his chest x-ray was read as normal. VA outpatient records note the Veteran's treatment for a bout of left upper lobe pneumonia in July 2007. He was treated on an inpatient basis. The Board remanded the case for an examination. The April 2012 examination report reflects the examiner conducted a review of the claims file as part of the examination. The examiner noted there was no evidence the Veteran had been diagnosed with a respiratory disorder. In fact, although the Veteran asserted in his November 2007 informal claim that he had been treated for a lung disorder after his separation from active service, the examination report notes he denied he had any respiratory issues, and he was not on any medications. The examiner noted the 2007 episode of pneumonia, there was no recurrence, and an x-ray from 2007 looked fine. A May 2011 x-ray was read as normal. The examiner did not diagnose any current respiratory disorder. Evidence the Veteran was diagnosed with a current disorder either at the time the claim was filed or at any time during the process is the first element that must be shown by the evidence of record. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The pneumonia had resolved by time VA received the Veteran's claim for VA compensation in November 2007. In light of the fact the objective findings on clinical examination revealed no current respiratory disorder, there is no other clinical evidence of a respiratory disorder at any time since the current claim, and the Veteran denied a current disorder on the current examination; the weight of the evidence is against a finding that there is a current disability. Hence, the Board is constrained to find the preponderance of the evidence is against the claim; and it must be denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a lung condition, to include pneumonia, is denied. REMAND On his January 1967 Report of Medical History, the Veteran noted he had experienced one episode of elevated blood pressure, but it was then normal. He did not provide a date. There are no instances of elevated blood pressure noted in the service treatment records. The January 1967 Report Of Medical Examination For Separation reflects the Veteran's blood pressure was 128/82. The August 2012 examination report reflects the Veteran's outpatient medical records note he was diagnosed with hypertension in 2001. The examiner opined there was at least a 50-percent probability the hypertension is causally related to the Veteran's active service. The sole rationale provided by the examiner is the Veteran's claimed exposure to AO while stationed in Germany. Apparently, because of this opinion, the examiner did not consider in-service findings mentioned in the Board's previous remand. The current record does not confirm that the Veteran was exposed to herbicides during his tour of duty in Germany. VA's adjudication manual dictates that certain procedures be followed when herbicide exposure is claimed in locations outside of Vietnam. M-21R, Section C, Topic 10, Paragraphs n-o. It does not appear that this development has yet taken place. In its previous remand, the Board noted that the Veteran had reported blurred vision and headaches during service, which were relieved when he was given glasses and that an astigmatism and amblyopia. The September 2009 examination report does not reflect any consideration of the in-service findings. The VA examiner provided separate opinions as to whether disabilities of the Veteran's various joints were related to service. The examiner answered these questions in the negative. These opinions were based essentially on the absence of treatment records in the years following service. The Veteran; however, reported at the examination and elsewhere in the record that some of his joint symptoms, including those of his wrists and shoulders, had been present since service. An opinion based on the absence of treatment records without consideration of a veteran's competent reports is inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Accordingly, the case is REMANDED for the following action: 1. Undertake the development required by M-21R to verify the Veteran's claimed herbicide exposure while serving in Germany. 2. Return the claims file, and a copy of this remand, to the examiner who conducted the August 2012 examination for hypertension. Ask the examiner to provide reasons for the conclusion that the Veteran's herbicide exposure was related to herbicide exposure in service. Also ask the examiner to clarify whether the current hypertension is related to the Veteran's report on his service separation medical history of high blood pressure on one occasion. In the event the examiner who conducted the August 2012 examination is no longer available, refer the claims file to an equally qualified examiner. Should the examiner advise the requested opinion cannot be rendered without an examination of the Veteran, the AMC/RO will arrange the examination. The claims file must be provided for review by the examiner as part of the examination. 3. Ask the examiner who provided the August 2012 VA eye examination to review the claims folder and this remand. The examiner should specifically note the reports of blurred vision and headaches associated with astigmatism and amblyopia during service. The examiner should provide an opinion as to whether there is a relationship between the in-service findings and any of the Veteran's current eye disabilities. The examiner should provide reasons for this opinion. In the event the examiner who conducted the August 2012 examination is no longer available, refer the claims file to an equally qualified examiner. Should the examiner advise the requested opinion cannot be rendered without an examination of the Veteran, the AMC/RO will arrange the examination. The claims file must be provided for review by the examiner as part of the examination. 4. Ask the examiner who provided the August 2012 VA examination with regard to the Veteran's joints to review the claims folder and this remand. The examiner should consider the in-service reports of wrist and shoulder symptoms and the Veteran's reports of joint symptoms on his medical history at the time of his separation from service. The examiner should also consider the Veteran's reports of ongoing shoulder and wrist symptoms since service. The examiner should then provide an opinion as to why the Veteran's reports, including those documented in the service treatment records together with the other evidence of record, does, or does not, make it at least as likely as not that any current joint disability is related to service. The examiner should provide reasons for these opinions. The absence of supporting clinical records is not, by itself, a sufficient reason for rejecting the Veteran's reports. In the event the examiner who conducted the August 2012 examination is no longer available, refer the claims file to an equally qualified examiner. Should the examiner advise the requested opinion cannot be rendered without an examination of the Veteran, the AMC/RO will arrange the examination. The claims file must be provided for review by the examiner as part of the examination. 5. If the decision as to any issue on appeal remains in any way adverse to the Veteran, issue a supplemental statement of the case (SSOC). The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs