Citation Nr: 1316136 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 09-32 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an eye disability, claimed as open angle glaucoma, senile cataracts, hypertensive retinopathy, diabetic retinopathy, and/or refractive error, to include as secondary to a service-connected disability. 2. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability. 3. Entitlement to service connection for ulcerative colitis, to include as secondary to a service-connected disability. 4. Entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder, major depressive disorder, and/or partner relational problem, to include as secondary to a service-connected disability. ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In a September 2010 statement, the Veteran submitted evidence from the San Juan VA Medical Center (MC) showing evidence on an electromyography of peripheral neuropathy. His attached statement indicated that the evidence was the latest from that VAMC "of [his] conditions due to diabetes." The Board finds that this raises an informal claim for service connection for peripheral neuropathy to include as secondary to service-connected diabetes mellitus type 2. That informal claim is thus referred to the RO for the appropriate development. The Veteran's appeal was remanded by the Board in March 2011 so that outstanding VA treatment records could be obtained, and VA examinations conducted with respect to the issues on appeal. The VA treatment records were associated with the claims file in March 2011; VA examinations were conducted in June 2011 and July 2011. Accordingly, the Board finds that there has been substantial compliance with the directives of the March 2011 remand, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). In August 2012, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in December 2012. Later that month, the Veteran was informed that the Board had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him a copy of that opinion and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. No further evidence or argument was received within those 60 days. Accordingly, consideration of the case may proceed. The appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). The issue of entitlement to service connection for an acquired psychiatric disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The Veteran's service treatment records document complaints of nausea and vomiting related to a common cold, but do not show abnormal eye symptomatology or elevated blood pressure readings, or a diagnosed hypertension, eye, or gastrointestinal disability. 2. The evidence does not establish that the Veteran's currently diagnosed hypertension, eye disabilities, and/or ulcerative colitis are directly related to his military service or proximately related to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for an eye disability have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). 3. The criteria for service connection for ulcerative colitis have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012).. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). January 2008 and October 2008 letters satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The October 2008, June 2011, and July 2011 VA examinations were adequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examinations conducted a complete physical examination, completed laboratory testing as appropriate, and included medical nexus opinions supported by a reasoned rationale. Review of the record does not indicate that additional evidence pertinent to the issues adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Establishing service connection on a direct basis generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset, frequency, duration, and severity of his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). Eye Disability The Veteran's service treatment records do not document complaints of eye symptoms, or treatment for or diagnosis of an eye disability. Similarly, at the January 1971 VA examination, the examiner specifically noted that the Veteran's eye examination was normal. Although the most recent postservice evidence reflects that the Veteran has been treated for a variety of eye conditions, the evidence does not establish that any of them are related directly to the Veteran's military service or proximately to a service-connected disability. As a threshold issue, service connection is not warranted for the Veteran's diagnosed condition of refractive error. Congenital or developmental defects, to specifically include refractive error, are not considered diseases or injuries within the meaning of applicable legislation pertaining to disability compensation for VA purposes, and provide no basis for service connection. Beno v. Principi, 3 Vet. App. 439, 441 (1992); 38 C.F.R. §§ 3.303(c), 4.9. 4.127; see also Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). Here, the July 2011 VA examiner found that the Veteran's refractive error was congenital and age-related. Similarly, the record does not show the Veteran has diabetic retinopathy. March 2010, September 2010 and January 2011 VA outpatient records and the October 2008 and July 2011 VA examination reports all note no evidence of diabetic retinopathy on clinical examination. The record reflects that the Veteran has a history of uveitis that first onset in 1993, more than 20 years of his separation from service as noted in a January 2006 VA outpatient treatment record. The record does not show, and he does not assert, that his uveitis is related to his military service. However, several opinions of record, to include as given at December 2002 and March 2010 VA visits, conclude that the Veteran's glaucoma was related to his uveitis, and not to his diabetes mellitus; the July 2011 VA examiner concluded that the open-angle glaucoma is not at least as likely as not caused by or a result of diabetes mellitus type 2. A March 2010 VA treatment record noted that the Veteran had bilateral senile cataracts, but the October 2008 VA examiner concluded that the loss of vision, including cataracts, was not caused by or a result of diabetes mellitus type 2, and the July 2011 VA examiner concluded that the bilateral senile cataracts had an approximately onset 15 years ago and were age related. Finally, the July 2011 VA examiner concluded that the Veteran's hypertensive retinopathy grade II onset undetermined was related to his systemic hypertension. As noted elsewhere in this decision, the evidence does not establish that the Veteran's hypertension is related to service or to a service-connected disability, so the hypertensive retinopathy is also not proximately related to the Veteran's military service. Dr. Ortiz's August 2009 letter noted that diabetes mellitus type 2 causes damage to the eyes, including retinopathy. It further opined that because there was evidence relating a group of medical conditions to Vietnam veterans' herbicide exposure, it was more probable than not that the Veteran's medical conditions were related to his service-connected diabetes mellitus type 2. However, there are no eye disabilities that are presumptively related to herbicide exposure. 38 U.S.C.A. § 1116(a) (2); 38 C.F.R. §§ 3.307(a) (6), 3.309(e); 74 Fed. Reg. 21,258 (May 7, 2009); 75 Fed. Reg. 53,202 (Aug. 31, 2010). Moreover, there is no evidence in the record that the Veteran has diabetic retinopathy, and the evidence discussed above establishes that the Veteran's other diagnosed eye conditions are not related to service or to his service-connected diabetes mellitus type 2. Indeed, Dr. Ortiz's letter is unfortunately vague and fails to address the Veteran's specific individual medical history with respect to his eye conditions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). For these reasons, the Veteran's claim for service connection cannot be granted. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and service connection is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hypertension The Veteran alleges that his hypertension is either the direct result of service or, in the alternative, proximately related to a service-connected disability. Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). The Veteran's service treatment records do not document hypertension in service as defined above. Similarly, at the January 1971 VA examination, blood pressure was noted to be within normal limits at 120/76 mm/Hg. VA outpatient treatment records dated from December 2004 to March 2011 reflect hypertension as a continuing diagnosis; these include a January 2006 VA outpatient treatment record shows prescriptions for high blood pressure medications, and a January 2006 Agent Orange Registry note reflects the Veteran's report that he had a history of hypertension and had been diagnosed with diabetes mellitus type 2 in 2005. At the October 2008 VA examination, the examiner's review of the claims file revealed notations of elevated blood pressure since 2000 and an initial diabetes diagnosis in 2005; hypertension was diagnosed. Two opinions are of record as to the relationship of the Veteran's hypertension to his military service and his service-connected disabilities. Dr. Ortiz, the Veteran's private physician, noted in an August 2009 letter that there were conditions that are related and secondary to diabetes mellitus type 2 including high blood pressure, and discussed what kind of damage the high blood pressure could can cause to various body systems. She then stated that because it is known that Vietnam veterans were exposed to herbicides, and there is evidence linking a group of conditions to that exposure, among them diabetes mellitus type 2, it was more probable than not that his high blood pressure was related to diabetes mellitus type 2 and in consequence, is service connected. Conversely, the July 2011 VA examiner noted that the Veteran's claims file showed no diagnosis of or treatment for hypertension in service, and elevated blood pressure since 2000-2001 and elevated blood sugar levels since 2005, with a diagnosis of diabetes mellitus type 2 in 2005 which had been successfully treated since that time, with no emergency room visits or hospitalizations. The examiner noted no evidence of microalbuminuria, or evidence of aggravation of hypertension in the claims file. Thus, the VA examiner concluded the Veteran's hypertension was not present in, did not have its onset in, and is not related to service, and was not likely due to, or aggravated by, Veteran's diabetes mellitus type 2. The Board finds the VA examiner's opinion more probative than that of Dr. Ortiz. The VA examiner's opinion is more thorough, noting in support of his opinion as to secondary causation based on aggravation that the Veteran had experienced virtually no complications of his diabetes since the initial diagnosis. In contrast, Dr. Ortiz's opinion does not comment on the fact that the Veteran's hypertension pre-existed the onset of his diabetes and is essentially based on the premise that since there are many disabilities known to occur in veterans exposed to herbicides, the Veteran's hypertension was related to his diabetes mellitus. She does not address any of the Veteran's individual medical history with respect to his hypertension; her association of the two conditions is of limited probative value. See Nieves-Rodriguez. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and service connection is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Ulcerative Colitis The Veteran's service treatment records do not document complaints of gastrointestinal symptoms other than nausea and vomiting related to a cold; the service treatment records do not reflect a diagnosed gastrointestinal condition. Similarly, at the January 1971 VA examination, the examiner specifically noted that there were no gastrointestinal (GI) abnormalities. However, VA outpatient treatment records from December 2004 to March 2011 shows continued treatment for ulcerative colitis that was described as stable, well-controlled, or in remission on multiple occasions between February 2005 and January 2011. During that period, he underwent multiple esophagogastroduodenoscopy procedures, colonoscopies, and lower GI tract endoscopies for routine evaluation and monitoring, with no evidence of an increase in symptomatology. At the October 2008 VA examination, the examiner noted the Veteran's report that his ulcerative colitis was diagnosed more than 20 years ago at the San Juan VA Medical Center (MC), and that he could not remember the last time he had an exacerbation. Three opinions are of record as to the relationship of the Veteran's ulcerative colitis to his military service and his service-connected disabilities. The October 2008 VA examiner concluded that the Veteran's ulcerative colitis was not caused by or a result of diabetes mellitus type 2, as accepted medical literature did not show a relationship between diabetes mellitus type 2 and ulcerative colitis, and the Veteran's ulcerative colitis was diagnosed many years prior to his diagnosis of diabetes mellitus type 2. Similarly, the July 2011 VA examiner noted that the Veteran's claims file showed no history of intestinal conditions in service, or after service until the late 1980s, and review of the accepted medical literature showed no etiological relationship between ulcerative colitis and diabetes mellitus type 2. As such, the Veteran's ulcerative colitis was not present in, did not have its onset in, and is not related to the Veteran's military service; it was also not likely due to, or aggravated by, Veteran's diabetes mellitus type 2. Conversely, Dr. Ortiz's August 2009 letter noted that there were conditions related and secondary to diabetes mellitus type 2 that cause damage to various body systems, and concluded that since there was evidence relating a group of conditions to the herbicide exposure histories of Vietnam veterans, it was more probable than not that all of the Veteran's medical conditions were related to diabetes mellitus type 2 and thus service connected. The Board finds the VA examiner's opinion more probative than that of Dr. Ortiz. The VA examiner's opinion is more thorough, noting in support of his opinion as to secondary causation based on aggravation that the Veteran had experienced virtually no complications of his ulcerative colitis for a long period. In contrast, Dr. Ortiz's opinion - which fails to individually identify the Veteran's ulcerative colitis as one of the disabilities she is discussing - does not comment on the fact that the Veteran's ulcerative colitis was first diagnosed in the 1980s, thus long preexisting the onset of his diabetes. She does not address any of the Veteran's individual medical history with respect to his ulcerative colitis; her association of the two conditions is thus unacceptably vague. Instead, she simply suggests that since there are many disabilities known to occur in veterans exposed to herbicides, the Veteran's ulcerative colitis was related to his diabetes mellitus. Due to its lack of detail and reference to the Veteran's individual medical history, Dr. Ortiz's opinion is not probative. See Nieves-Rodriguez. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and service connection is not warranted. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. ORDER Service connection for an eye disability is denied. Service connection for hypertension is denied. Service connection for ulcerative colitis is denied. REMAND In a December 2012 opinion letter, the Veteran's private physician Dr. Juarbe concluded that as part of the Veteran's active duty in Vietnam, he was under fire on several occasions, and saw a lot of death and wounded. As a result, he suffered recurrent nightmares of traumatic war experiences, and experienced anxiety, was fearful, displayed hypervigilance and exaggerated startle reactions, and had suicidal ideation. Diagnoses of posttraumatic stress disorder (chronic) and major depressive disorder were given, and the opinion offered that far beyond any reasonable doubt, the Veteran's psychiatric symptoms were directly related and due to his active duty in the Vietnam war. The VA opinions of record provided prior to this opinion being submitted were predicated on a different factual basis, specifically, that the Veteran had a different wartime experience. As such, remand of this issue is required so that a VA clinician can provide an opinion addressing on all the evidence of record to this issue, including Dr. Juarbe's December 2012 opinion letter. Accordingly, the issue of entitlement to service connection for an acquired psychiatric disability is REMANDED for the following actions: 1. After physically or electronically associating any pertinent, outstanding records with the claims file, forward the Veteran's claims file to a VA examiner to obtain an opinion as to the nature and etiology of the Veteran's acquired psychiatric disabilities. In forming the opinion, the examiner must consider the evidence of record, to include the previous VA examination reports, and specifically comment on the findings and opinion noted in Dr. Juarbe's December 2012 letter. The examiner should fully explain any opinion offered, citing to claims file documents as appropriate. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of any in-service and post-service psychiatric symptoms, to include related to his Vietnam experiences, and the relationship, if any to his service-connected diabetes mellitus and erectile dysfunction. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After undertaking the development above, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. Then, return the appeal to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs