Citation Nr: 1304813 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 08-35 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for an eye disability, to include as due to exposure to Agent Orange. 2. Entitlement to service connection for a disability of the joints, to include as due to exposure to Agent Orange . 3. Whether new and material evidence has been submitted to reopen a claim for service connection for a skin disability, to include as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran's active military service extended from February 1964 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Based on the record, the Board has recharacterized the issue involving a skin disability as one of whether new and material evidence has been submitted to reopening of the claim of entitlement to a skin disorder, to include as due to exposure to Agent Orange exposure. The issues of entitlement to special monthly compensation based on the need for aid and attendance or being housebound; entitlement to service connection for a cerebrovascular accident, to include as due to a service-connected disability; and, entitlement to compensation for a cerebrovascular accident pursuant to 38 C.F.R. § 1151 have been raised by the record, but have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over these issues and they are referred to the RO for appropriate action. The issues involving service connection for a disability of the joints, to include as due to exposure to Agent Orange exposure, and whether new and material evidence has been submitted to reopen a claim for service connection for a skin disability, to include as due to exposure to Agent Orange exposure, are remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during requisite period of time to be presumed to have been exposed to Agent Orange during service. 2. Service treatment records reveal complaints of burning eyes and a diagnosis of refractive error. 3. The evidence of record establishes that the Veteran has diagnoses of refractive error of the eyes and bilateral eye cataracts. 4. Service connection is established for cataracts as a symptom of his service-connected diabetes mellitus. 5. There is no evidence of a current eye disability independent of the cataracts for which service connection is already in effect. CONCLUSION OF LAW An eye disability was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred, to include as due to in-service exposure to Agent Orange. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(e) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements apply to all five elements of a service connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran has been provided the requisite notice as indicated above with respect to his claim in a letter dated November 2006, which was prior to the initial RO rating decision denying the benefits sought. See, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained available service treatment records; VA treatment records; VA examination reports; prison medical treatment records; assisted the Veteran in obtaining evidence; and, afforded him the opportunity to present, written statements and evidence. All known, identified, and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file and he has not contended otherwise. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. VA afforded the Veteran VA examinations with respect to his claims for service connection for skin and joint disabilities. In conjunction with these examinations he was also scheduled for an eye examination for which he failed to report. He has not offered any explanation as to his failure to report to the scheduled eye examination. Under the applicable criteria, when entitlement to a benefit based on an original claim for service connection, cannot be established or confirmed without a current VA examination or re-examination and a claimant, without good cause, fails to report for such examination, or re-examination, the claim shall be rated based on the evidence of record. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, or the death of an immediate family member. 38 C.F.R. § 3.655(a) & (b) (2012). "[T]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The Veteran, without good cause, failed to report to the scheduled eye examination; the claim must be adjudicated on the evidence of record. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In September 2006, the Veteran submitted a claim which referred to Dow Chemical Corporation and a chemical agent. His basic assertion was that Agent Orange exposure in Vietnam had caused an eye disability. Generally, service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after separation, 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 order to establish service connection for a claimed disorder, the following must be shown: (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. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for the following disorders: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes; Hodgkin's disease; Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); All chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; Non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and, soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Presumptive service connection for these disorders as a result of Agent Orange exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). The governing law provides that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f). The evidence of record establishes that the Veteran served in Vietnam from July 1965 to May 1966. Accordingly, he is presumed to have been exposed Agent Orange during active service. Separation examination of the Veteran was conducted in January 1968. Clinical evaluation of the eyes was normal. Defective visual acuity, refractive error, of the right eye was diagnosed on further examination. Service treatment records reveal that the Veteran sought treatment for an "eye problem" in February 1968, approximately two years after his tour of duty in Vietnam ended. He complained of bilateral eye burning with exposure to bright lights. The medical record indicates that the conjunctiva were clear on examination. Approximately 20 days later, the Veteran was seen for an eye examination and reported a history of eye strain. Funduscopic examination was within normal limits. The Veteran was written a prescription for corrective lenses to correct for refractive error of the eyes. In October 1987, a VA Agent Orange registry examination of the Veteran was conducted. He reported that his eyes bothered him, with symptoms of being watery in the mornings and that he frequently had excess tearing. He stated that he sought treatment in the 1970s and was told he needed glasses. He stated that his eye problems began in 1968, and he wondered if they were Agent Orange related. The Veteran also reported difficulty with night vision. Eye examination revealed "pupils equal and react to light directly and consensually. EOMs [extraocualar movements] intact. Sclerae nonicteric. The funduscopic examination reveals normal disks with normal blood vessels, no AV nicking, or exudates noted. No conjunctival injection." No pus or discharge was noted. No diagnosis of any eye disability was indicated on the examination report. The Veteran was incarcerated in prison in 1998 and 1999. Prison medical records reveal that the Veteran had impaired visual acuity, refractive error, and required glasses. In July 2004, a VA examination of the Veteran was conducted with respect to his claim for service connection for diabetes mellitus. No eye symptoms were reported. In April 2007, VA examinations of the Veteran were conducted. On internal medical examination, the physician noted the presence of cataracts of both eyes. The Veteran was scheduled for a separate ophthalmology examination, but he failed to report to the examination. A June 2007 RO rating decision granted service connection for cataracts associated with the Veteran's service-connected diabetes mellitus. The available evidence establishes that the Veteran has bilateral eye cataracts and refractive error of the eyes. The Board finds that although the Veteran has met the regulatory presumption of active service in the Republic of Vietnam during the Vietnam era, no evidence has been submitted demonstrating that a current eye disability due to herbicide exposure is present and related to service. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). The United States Court of Appeals for Veterans Claims has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). Again the evidence establishes the Veteran has bilateral eye cataracts and refractive error of the eyes. Service connection has been established for cataracts associated with his service-connected diabetes mellitus. Refractive error of the eye is not a disease or injury within the meaning of applicable legislation; service connection cannot be established for refractive error of the eyes. 38 C.F.R. § 3.303(c). There is simply no evidence of a current eye disabilty, distinct and separate from the bilateral cataracts for which service connection has already been established. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328 (1997). The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an eye disability, to include as due to exposure to Agent Orange, is denied. REMAND The claim for service connection for a skin disability has been denied on several occasions, most recently in a July 1999 rating decision. However, the June 2007 rating decision on appeal did not address the current claim as involving reopening of a final VA decision. It appears that the RO considered the Veteran's claim in September 2006 for entitlement to service connection for a skin disorder was a new claim, as the Veteran was now claiming he had a skin disorder due to exposure to Agent Orange. However, absent a provision of law or regulation that creates a new basis of entitlement to benefits, as through liberalization of the requirements for entitlement to a benefit, a Veteran must still present new and material evidence even if he raises a new theory of entitlement such as exposure to Agent Orange. Ashford v. Brown, 10 Vet. App. 120, 123 (1997) (finding that a new etiological theory, such as alleging exposure to asbestos during service, does not constitute a new claim). Accordingly, this claim must be remanded so that that the Veteran could be provided with proper notice regarding the evidence needed to substantiate a claim to reopen. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran's claim for service connection for a disability of the joints, to include as due to exposure to Agent Orange, requires remand. The Veteran failed to provide adequate specificity with respect to what joints were involved in the claim. Moreover, the findings on the April 2007 VA examination raised the issue involving service connection for the elbows, on a direct basis, but the examiner failed to provide adequate medical opinions as to etiology to enable adjudication of the claim. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is remanded for the following action: 1. The Veteran must be contacted to identify the what joints he is claiming service connection for and the basis of the claims for service connection. Based on the response, the RO must undertake all appropriate action, including notifying the Veteran the statutory and regulatory requirements for reopening previously denied claims should the Veteran identify joints for which service connection had previously been denied. 2. The Veteran must be given proper notice as to the evidence necessary to reopen his claim of entitlement to service connection for a skin disability; the evidence that VA will seek to provide and that the claimant is expected to provide; and request that the Veteran provide any evidence in his possession that pertains to the claim. The Veteran must be allowed at least 60 days to submit any evidence or request that VA assist in obtaining the evidence. See 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). This notice must specifically inform the Veteran of the evidence requirements for new and material to reopen his claim, as well as the specific evidence that would substantiate reopening the specific claim for service connection for a skin disability. The Veteran must be allowed at least 60 days to submit any evidence or request that VA assist in obtaining the evidence. Id. 3. The Veteran must be afforded the appropriate VA joints examination to determine whether any currently claimed joint disorder is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any joint disorder found is related to the Veteran's active duty service, including any injury reported therein, or exposure to Agent Orange during service. The examiner must also state whether any joint disorder found is due to or aggravated by any service-connected disorder. A complete rationale for all opinions must be provided. 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 prepared must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. 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). In the event that the Veteran does not report for the aforementioned 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. 5. The examination report must be reviewed by the RO 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. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be readjudicated. The issue of whether new and material evidence has been submitted to reopen a claim for service connection for a skin disability, to include as due to exposure to Agent Orange must be adjudicated in light of the prior final denials of service connection. If the issues on appeal remain 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 may present additional evidence or argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs