Citation Nr: 1309218 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 10-18 337 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to an increased disability rating for migraine headaches, in excess of 30 percent. 2. Whether new and material evidence has been received to reopen a claim seeking service connection for astigmatism. 3. Entitlement to service connection for glaucoma. 4. Entitlement to service connection for multiple sclerosis on direct and presumptive service connection bases. 5. Entitlement to service connection for a mood disorder on a direct service connection basis. 6. Entitlement to service connection for multiple sclerosis, as secondary to migraine headaches. 7. Entitlement to service connection for a mood disorder, as secondary to migraine headaches. 8. Entitlement to special monthly compensation (SMC) due to the need of aid and attendance (A&A). REPRESENTATION Appellant (the Veteran) is represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from June 1962 to June 1966. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the RO in Waco, Texas. In August 2011, the Veteran presented testimony at a Board hearing, chaired by the undersigned Acting Veterans Law Judge, seated at the RO in Waco, Texas. A transcript of the hearing is associated with the claims file. Although the Veteran has primarily asserted a secondary service connection basis for his claims of entitlement to service connection for multiple sclerosis and a mood disorder, the RO has also adjudicated the claims on direct and presumptive service connection bases. See the September 2010 Supplemental Statement of the Case. Based on the need for additional development of the claims for service connection for multiple sclerosis and a mood disorder on secondary service connection bases, which is not required to fairly adjudicate the claims on direct and presumptive service connection bases, the Board has bifurcated those claims to allow separate dispositions. Bifurcation of a claim generally is within the Secretary's discretion. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (en banc) (holding that it is permissible for the Secretary to bifurcate a request for benefits on the basis of direct service connection from the request on the basis of presumptive service connection), aff'd 631 F.3d 1380 (Fed. Cir. 2011). In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. The issues of entitlement to service connection for multiple sclerosis on a secondary service connection basis, entitlement to service connection for a mood disorder on a secondary service connection basis, and entitlement to SMC based on the need for A&A are addressed in the REMAND below and are therein REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issues herein decided has been accomplished. 2. For the entire period on appeal, the Veteran's migraine headaches have been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. In an unappealed October 2007 rating decision, the RO denied service connection for astigmatism. 4. The evidence associated with the claims file subsequent to the October 2007 rating decision does not relate to any unestablished fact necessary to substantiate the claim; rather, it is cumulative or redundant of evidence already of record and it does not raise a reasonable possibility of substantiating the claim. 5. The Veteran did not engage in combat with the enemy. 6. Multiple sclerosis is listed among the diseases for which the presumption of service connection for certain chronic diseases, and the provisions regarding chronicity in service and continuity of symptomatology after service, must be considered. 7. Symptoms of multiple sclerosis were not chronic in service. 8. Multiple sclerosis did not become manifest within 7 years of service separation. 9. Symptoms of multiple sclerosis have not been continuous since service separation. 10. Multiple sclerosis is not related to service. 11. A mood disorder and glaucoma are not listed among the diseases for which the presumption of service connection for certain chronic diseases, and the provisions regarding chronicity in service and continuity of symptomatology after service, must be considered. 12. A mood disorder is not related to service. 13. Glaucoma is not related to service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for a disability rating of 50 percent for migraine headaches have been met for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2012). 2. The criteria for reopening service connection for astigmatism have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2012). 3. Glaucoma was not incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 4. Multiple sclerosis was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C.A. §§ 337, 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 5. A mood disorder was not incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 v. Derwinski, 1 Vet. App. 49, 57 (1990). 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"). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336(Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The CAVC has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303(2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Disability Ratings - Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Although the claimant's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). When a claimant is awarded service connection and assigned an initial rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the CAVC extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." Analysis of Rating for Migraines In a May 1970 rating decision, the RO granted service connection and assigned an initial 10 percent rating for migraine headaches, pursuant to Diagnostic Code 8100, effective March 10, 1970. An October 2007 rating decision subsequently granted a higher rating of 30 percent, effective July 30, 2007. The current appeal arises from a claim for increase received at the RO on February 27, 2009. Under Diagnostic Code 8100, migraine headaches warrant a 50 percent rating when there are very frequent completely prostrating and prolonged attacks that are productive of severe economic inadaptability; a 30 percent rating is warranted with characteristic prostrating attacks occurring on an average once a month over last several months; a 10 percent rating is warranted with characteristic prostrating attacks averaging one in 2 months over last several months. A zero percent rating is warranted with less frequent attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran testified that he experiences headaches every day. Sometimes medication relieves the pain and sometimes it does not. He testified that he feels his nerves "tighten up," he gets a watery taste in the mouth, and he starts perspiring. According to the Veteran, usually, he has to throw up. The headache will last from 10 to 40 minutes and then stop. A treatment report from April 2006 reveals that the Veteran complained of severe daily migraine headaches. According to the Veteran, the pain was off the scale. For the previous month, the headaches had lasted about 45 minutes to 1 hour and nothing relieved them. A VA neurological examination in June 2009 reveals that the Veteran was having headaches two or three times a week that lasted one hour. They were as severe as 8 out of 10. The Veteran reported that he avoids noise and light, feels some slight nausea, and has no aura. The report of VA examination in June 2010 reveals severe headaches twice a week predominantly on one side of the head. These were described as aching, and would last 3 hours, and would go away with a nap. There was no aura. Stress increases headaches, and noise increases headaches. The Veteran reported nausea and light sensitivity. The headaches were moderate to severe, 8 out of 10 on a scale of 10. Additionally, the Veteran had tension headaches at least weekly. He had had no specific visual disturbances, hearing loss, or other apparent sequelae of the migraine headaches. The examiner noted that the Veteran's migraine headaches were occurring twice a week according to the Veteran. He had milder tension headaches which were successfully treated with pain medications as needed. However, his migraine headaches were incapacitating for 3 hours, 2 days a week. After a review of all of the evidence, the Board finds that the Veteran's migraine headaches are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In essence, the descriptions of the frequency of incapacitating attacks are all more frequent than the "once a month" average contemplated for a 30 percent rating. The frequency and duration of completely prostrating attacks as described to the June 2010 VA examiner is twice a week lasting 3 hours each. Similarly, the June 2009 evaluation described attacks two or three times a week with pain at 8 out of 10. The April 2006 report describes daily attacks with pain off the scale. TheVeteran has also testified that he has headaches every day. While it is clear that not all of the Veteran's headaches are completely prostrating, and he has described some headaches of lesser severity (tension headaches), even setting those aside, the frequency of completely prostrating attacks more nearly approximates the description of "very frequent" than it does the description of "once a month." The Board also acknowledges at least the potential for debate as to whether the Veteran's completely prostrating attacks are also prolonged. The duration has been described as anything from 10 minutes to 3 hours. The Board appreciates that the effect of a completely prostrating attack would likely exceed the actual duration of the attack itself. Indeed, the Veteran has described the need for a nap to resolve his symptoms. Thus, to the extent of that there is any debate, the Board finds that the evidence for and against a finding of prolonged attacks has at least reached the point of relative equipoise. The Board also finds that the combination of the frequency and duration of attacks and the symptomatology associated with those attacks is productive of severe economic inadaptability. The Veteran's description and the descriptions of clinicians who have evaluated him is that his attacks are associated with nausea, vomiting, and sensitivity to sound. The Veteran thus needs to isolate himself from all activities while the attacks are ongoing and likely for some time thereafter. Regarding economic inadaptability, the Board also acknowledges an April 2010 VA mental health assessment, which includes the examiner's opinion that the Veteran's service-connected migraine headaches have worsened over time, despite medications, additionally impairing his quality of life and his functioning. According to that clinician, the Veteran's migraine symptomatology continues to have a significant negative impact on his ability to cope with everyday life events; and, given the chronic ongoing nature of his symptoms, it was the examiner's stated "strong opinion" that the Veteran qualifies for increased compensation for his condition. While the April 2010 examiner's comments are not probative of entitlement to any specific rating, they support the Board's finding as to severe economic adaptability. In sum, while there is some room for debate as to whether the criteria for a 50 percent rating are met, the evidence for and against entitlement to a 50 percent rating has reached the point of relative equipoise. Accordingly, with resolution of all reasonable doubt in the Veteran's favor, the Board finds that a 50 percent rating for migraine headaches is warranted. A 50 percent rating is the maximum rating available under the rating schedule. Therefore no higher schedular rating is warranted. Extraschedular Consideration The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1) (2012), which provides procedures for referral or assignment of an extraschedular evaluation. Schafrath, 1 Vet. App. at 593. The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The VA Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board finds that the schedular rating criteria contemplate the Veteran's service-connected migraine headaches. The Veteran has testified and submitted written correspondence describing his symptoms. These include severe pain, nausea, and vomiting as well as well as sensitivity to light and sound. The schedular criteria specifically provide for ratings based on the presence of such symptoms. Moreover, the schedular criteria specifically contemplate severe economic impact of symptoms related to headaches. Such factors are explicitly part of the schedular rating criteria. Because the schedular rating criteria are adequate to rate the disability, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). 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). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The CAVC has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Certain specific conditions are considered chronic diseases under VA Law. These include the following: Anemia, primary; Arteriosclerosis; Arthritis; Atrophy, progressive muscular; Brain hemorrhage; Brain thrombosis; Bronchiectasis; Calculi of the kidney, bladder, or gallbladder; Cardiovascular-renal disease, including hypertension. (This term applies to combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease, and since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the 1-year period will be given the same benefit of service connection as any of the chronic diseases listed); Cirrhosis of the liver; Coccidioidomycosis; Diabetes mellitus; Encephalitis lethargica residuals; Endocarditis. (This term covers all forms of valvular heart disease); Endocrinopathies; Epilepsies; Hansen's disease; Hodgkin's disease; Leukemia; Lupus erythematosus, systemic; Myasthenia gravis; Myelitis; Myocarditis; Nephritis; Other organic diseases of the nervous system; Osteitis deformans (Paget's disease); Osteomalacia; Palsy, bulbar; Paralysis agitans; Psychoses; Purpura idiopathic, hemorrhagic; Raynaud's disease; Sarcoidosis; Scleroderma; Sclerosis, amyotrophic lateral; Sclerosis, multiple; Syringomyelia; Thromboangiitis obliterans (Buerger's disease); Tuberculosis, active; Tumors, malignant, or of the brain or spinal cord or peripheral nerves; Ulcers, peptic (gastric or duodenal)(A proper diagnosis of gastric or duodenal ulcer (peptic ulcer) is to be considered established if it represents a medically sound interpretation of sufficient clinical findings warranting such diagnosis and provides an adequate basis for a differential diagnosis from other conditions with like symptomatology; in short, where the preponderance of evidence indicates gastric or duodenal ulcer (peptic ulcer). Whenever possible, of course, laboratory findings should be used in corroboration of the clinical data. 38 C.F.R. § 3.309(a). Where one of the above chronic diseases is shown to be chronic in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The provisions of 38 C.F.R. § 3.303(b) are limited, however, to the diseases expressly recognized by VA as chronic at 38 C.F.R. § 3.309. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection may also be established the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App.439, 448 (1995). Combat Rule In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran's favor. See VAOPGCPREC 12-99. The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). Although the Veteran served during a period of war, the evidence does not suggest, and the Veteran does not contend, that he engaged in combat with the enemy, or that his claimed mood disorder, multiple sclerosis, or glaucoma are related to combat. As such, the combat rule is not applicable. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). Analysis of Reopening of Service Connection for Astigmatism The RO first denied a claim for service connection for astigmatism in an October 2007 rating decision. At the time of the October 2007 decision, the medical evidence of record consisted of service treatment records, VA outpatient records, and VA examinations dated in March 1970 and September 2007. The service records showed no treatment for astigmatism, and no treatment for superimposed injury or disease of the eyes. Indeed, the Veteran's eyes were found to be clinically normal at enlistment and at service separation. Specifically, at enlistment, the Veteran had distant and near visual acuity of 20/20 in each eye. At service separation, the Veteran had distant visual acuity of 20/20 in each eye, near visual acuity of 20/20 in the left eye, and near visual acuity of 20/30 in the right eye. The Basis for the RO's denial of service connection was that astigmatism is a refractive error of the eye and therefore not a disease or injury for VA compensation purposes. Although notified of the RO's decision and of his right to appeal, the Veteran did not initiate an appeal of that decision (see 38 C.F.R. § 20.200 (2012)); moreover, he did not submit new and material evidence within one year of that decision. Therefore, the decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2012). Notwithstanding the finality of the October 2007 decision, VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Where new and material evidence is received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156. In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (CAVC) held that 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the CAVC found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. The Veteran requested to have the previously denied claim reopened in February 2009. Regarding applications for reopening filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board must review all evidence submitted by or on behalf of a claimant since the last disallowance on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996), overruled on another basis by Hodge v. West 155 F.3d. 1356 (Fed. Cir. 1998). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). As noted above, astigmatism is a refractive error of the eye, and therefore not a disease or injury for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. Service connection may be granted, in limited circumstances, for disability due to aggravation of a constitutional or developmental abnormality by superimposed disease or injury (see VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); and Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993)). Evidence received since the October 2007 decision includes VA treatment records, and additional statements from the Veteran and his representative. The VA treatment records are not new and material for purposes of reopening of the claim, as they do not address whether the Veteran's astigmatism was aggravated beyond its normal course by superimposed disease or injury in service. Without any competent evidence or opinion that addresses the primary basis for the prior denial, none of the newly-received medical evidence raises a reasonable possibility of substantiating service connection for astigmatism, and therefore, it is not new and material for purposes of reopening the claim. Under these circumstances, the Board must conclude that new and material evidence to reopen the claim for service connection for astigmatism has not been received. As such, the October 2007 decision remains final, and the appeal must be denied. As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen either of the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Analysis of Service Connection for Glaucoma Glaucoma is not a chronic disease listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.309(b) does not apply. See Walker, supra. 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). After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that glaucoma is not related to service. Service treatment records reflect no complaints, treatment, or diagnoses related to glaucoma. At service separation, the Veteran's eyes were examined and found to be clinically normal. Specifically, interocular tension was normal. After service, there is no reference to glaucoma until the current claim. Notably, the Veteran filed a claim for service connection in December 1966 and did not mention glaucoma. He also filed a claim in March 1970 but did not mention glaucoma. He was examined in March 1970, but his eyes were found to be normal. In essence, the Veteran took action regarding symptoms he believed were related to service, but did not mention glaucoma. This evidence weighs against any glaucoma symptoms at that time. It appears that glaucoma was first suspected following a March 2006 ophthalmology visit, some 40 years after service separation. This multi-decade gap between discharge from active duty service (1966) and initial reported symptoms related to glaucoma weighs against a nexus to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). There is no medical opinion that purports to relate glaucoma to service. The Veteran is competent to relate an etiology opinion; however, the Veteran testified that no doctor had given him the cause for his glaucoma. The Veteran believes that glaucoma is related to service, but he has not explained the basis for this belief. At the hearing, the Veteran testified that he has had the problem for years, but his description is that his right eye went blurry. As noted elsewhere in this decision, the Veteran has decreased visual acuity, which is not a service-connected disability. Moreover, he described the blurring of his vision as occurring 10 or 15 years prior to the hearing, still well after service. Based on the lack of detail in the Veteran's explanation, the Board can only conclude that the Veteran's belief that glaucoma is related to service is based on speculation. Based on the lack of injury or disease in service, and the lack of any conclusive evidence linking glaucoma to service, the Board finds that service connection for glaucoma is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Analysis of Service Connection for Multiple Sclerosis Direct and Presumptive Bases Multiple sclerosis is listed under 38 C.F.R. § 3.309(a), therefore the presumption of service connection and the provisions regarding chronicity and continuity of symptomatology must be addressed. See Walker, supra. After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that symptoms of multiple sclerosis were not chronic in service and did not become manifest to a compensable degree within seven years of service separation; symptoms of multiple sclerosis were not continuous after service, but had onset more than 20 years after service separation; and the current multiple sclerosis is not related to service. In fact, the Veteran's principal theory of etiology for multiple sclerosis is not direct service connection, but is based on his assertion that multiple sclerosis is proximately due to or a result of his service-connected headaches. The Veteran testified at his hearing and reported on his claim form that multiple sclerosis was not diagnosed until 1988; although, he believes that he probably had it sometime before that. Service treatment records reflect no treatment for multiple sclerosis. The Veteran was examined at service separation and his neurological system, and his upper and lower extremities were clinically normal. Thus, to the extent that there were any symptoms of multiple sclerosis present in service, the Board finds that such symptoms were not chronic in service. After service, by the Veteran's own account, his multiple sclerosis was not diagnosed until 1988. The Veteran has not asserted that he experienced continuing symptoms of multiple sclerosis after service, or that multiple sclerosis became manifest within seven years of service separation. His speculation is simply that it may have been present before 1988. Indeed, the Veteran described to a neurological examiner in October 1993 that his symptoms began in 1982, still 15 years after service separation. Accordingly, the Board finds that symptoms of multiple sclerosis were not continuous after service and did not become manifest within seven years of service separation. 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 this case, there is no medical opinion that purports to relate multiple sclerosis directly to service. Again, the Veteran also does not assert that his multiple sclerosis is directly related to service. He has asserted only a secondary service connection theory of etiology. Accordingly, the Board finds that the weight of the evidence demonstrates no direct relationship between the Veteran's service and his multiple sclerosis. As such, and in light of the findings above regarding presumptive service connection, the Board finds that service connection for multiple sclerosis on direct and presumptive bases is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Analysis of Service Connection for a Mood Disorder - Direct Basis A mood disorder is not a chronic disease listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.309(b) does not apply. See Walker, supra. 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). After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that the Veteran's mood disorder is not related to service. Service treatment records reflect no complaint, treatment, or diagnosis of a mood disorder. When examined at service separation, the Veteran was psychiatrically normal. After service, there is no reference to a mood disorder until the current claim. Notably, the Veteran filed a claim for service connection in December 1966 and did not mention a mood disorder. He also filed a compensation claim in March 1970 but did not mention a mood disorder. He was examined in March 1970, ostensibly for his headaches; however the examination included a neuropsychiatric evaluation. At that time, the Veteran reported that he did not think there was anything wrong with his mind and that his nerves were OK. The examiner specifically found no disorder of mood or affect, and no disorder of will or volition. There was no psychiatric diagnosis given. It appears that the mood disorder was first diagnosed in 2005, almost 40 years after service separation. Moreover, there is no medical opinion that purports to relate the Veteran's mood disorder directly to service. The evidence in favor of service connection, including the Veteran's assertions, is that the mood disorder is related to the service-connected headaches. In the absence of evidence of an injury or disease in service or a nexus to service, the Board finds that service connection on a direct basis for a mood disorder is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Duties to Notify and Assist 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of the 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, 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 CAVC 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 this case, the Veteran submitted his claim in February 2009. He was sent a letter in August 2009 which advised him of the information and evidence necessary to substantiate his claim. That letter also advised him as to how disability ratings and effective dates were assigned. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Since the August 2009 letter was sent to the Veteran prior to the initial adjudication of the claim in October 2009, there exists no error in the timing of this notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In short, VA has complied with its duty to notify the Veteran in this case. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service private and VA treatment records, and the Veteran's written assertions and personal hearing testimony. The Veteran testified that there were no additional private treatment records, and that his post-service treatment had come primarily from VA. In addition, the Veteran was afforded VA examinations to address the etiology of multiple sclerosis and the mood disorder, and to address the current manifestations and severity of migraine headaches. These examinations were adequate because each was performed by a medical professional based on a review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. Moreover, the examination for migraine headaches includes findings pertinent to the rating schedule. Regarding the direct service connection theory of entitlement, the resulting opinions and rationales were consistent with the examination and the record. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The Veteran was not provided an examination regarding the claim for service connection for glaucoma because there was no injury or disease in service that may be related to glaucoma. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the CAVC has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, as the only evidence that the Veteran's claimed glaucoma is related to his military service is his own conclusory generalized lay statements, which are unsupported by even speculative medical evidence. Accordingly, the Board finds that referral for a VA medical examination is not warranted. Significantly, neither the appellant nor his or representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims decided herein that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the issues decided above. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER A disability rating of 50 percent for migraine headaches is granted. Reopening of the claim seeking service connection for astigmatism is denied. Service connection for glaucoma is denied. Service connection for multiple sclerosis on direct and presumptive service connection bases is denied. Service connection for a mood disorder on a direct service connection basis is denied. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the issues of service connection for multiple sclerosis and a mood disorder on a secondary service connection basis, as well as the issue of entitlement to SMC based on the need for A&A. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). The Veteran was afforded a VA neurological examination in June 2009. The examiner opined that the Veteran's multiple sclerosis is not secondary to his migraine headache syndrome, as this association has never been found in standard medical references. The opinion does not include any statement regarding aggravation of the Veteran's multiple sclerosis by his service-connected migraine headaches. The Veteran was also afforded a VA examination in June 2010. According to the examiner, it is unlikely that the Veteran's multiple sclerosis is due to his migraine headache disorder. The opinion does not include any statement regarding aggravation of the Veteran's multiple sclerosis by his service-connected migraine headaches. Service connection may be granted for disability that is proximately due to, the result of, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Thus, with respect to claims seeking service connection on a secondary basis, an opinion regarding secondary aggravation is generally required. Regarding the mood disorder, the Veteran was afforded a VA examination in June 2009. The examiner diagnosed a mood disorder secondary to the Veteran's general medical condition (multiple sclerosis). The examiner opined that it is more likely than not that the Veteran's depressive symptoms relate to the multiple sclerosis, and less likely than not that they relate to the migraine headaches. In addition, the Veteran does show signs of some preexisting antisocial personality traits and this resulted in conduct disturbance before and during military service, as well as sporadically afterwards. The same examiner provided an opinion in June 2010. The examiner noted that in the prior evaluation he found that it was more likely than not that his mood disorder related to the multiple sclerosis, which is his most disabling condition. He stated that he made no change to that opinion in light of additional evidence in the claims file. As with the opinions on multiple sclerosis, the opinion regarding a secondary service connection relationship between the mood disorder and personality disorder and migraine headaches does not address whether the service-connected headaches aggravated the nonservice-connected mood disorder or personality disorder. The CAVC in Barr v. Nicholson, 21 Vet. App. 303, 311(2007) held that, once VA undertakes the effort to provide an examination, it must provide an adequate one. An inadequate examination frustrates judicial review. Hicks v. Brown, 8 Vet. App. 417, 422 (1995). Pursuant to 38 C.F.R. § 4.2, it is incumbent upon the rating board to return an examination report as inadequate if it does not contain sufficient detail. Further, in Stefl v. Nicholson, 21 Vet. App. 120 (2007), the CAVC found that, "[w]ithout a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing." As the opinion evidence of record does not address the question of aggravation of the Veteran's multiple sclerosis, mood disorder, or personality disorder by the service-connected headaches, additional development is necessary to adjudicate the issues of entitlement to service connection on a secondary basis for multiple sclerosis and a mood disorder. Regarding the claim for SMC based on the need for A&A, that claims is inextricably intertwined with the service connection claims, as the allowance of either claim may impact the Board's determination of entitlement. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, the issues of entitlement to service connection for multiple sclerosis on a secondary service connection basis, entitlement to service connection for a mood disorder on a secondary service connection basis, and entitlement to SMC based on the need for A&A are REMANDED for the following action: 1. Obtain a supplemental opinion from the VA clinicians who provided the June 2010 VA opinions referred to above. If either clinician is not available, obtain an opinion from another suitable clinician. If either clinician determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary by a VA examiner. The claims folder must be made available to and reviewed by the clinician. Regarding multiple sclerosis, the clinician is requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that multiple sclerosis was permanently worsened beyond the natural course of the disease by the service-connected migraine headaches. Regarding the mood disorder, the clinician is requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that Veteran's mood disorder or the diagnosed personality disorder was permanently worsened beyond the natural course of the disease by the service-connected migraine headaches. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. If the requested medical opinion cannot be given, the examiner should state the reason(s) why. 2. Readjudicate the remanded claims for service connection for multiple sclerosis on a secondary service connection basis, entitlement to service connection for a mood disorder on a secondary service connection basis, and entitlement to SMC based on the need for A&A. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claims. See 38 C.F.R. § 3.655 (2012). 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. 2011). ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs