Citation Nr: 1317263 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 09-38 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a headache disability, claimed as a residual of in-service head injury. 2. Entitlement to service connection for blurred vision, claimed as a residual of in-service head injury. 3. Entitlement to service connection for bilateral pes planus. 4. Entitlement to service connection for bilateral carpal tunnel syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The appellant was a member of the Army National Guard from October 1983 to January 1986. He served on active duty for training from March 1984 to July 1984. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issue of entitlement service connection for bilateral carpal tunnel syndrome is addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. A headache disability was not present during service and is not causally related to service. 2. A disability manifested by blurred vision that has been present during the period of this claim is not due to a disease or injury. 3. Pes planus was not present in service and is not causally related to service. CONCLUSIONS OF LAW 1. The criteria for service connection of headache disability have not been met. 38 U.S.C.A. §§ 101, 106, 1131(West 2002); 38 C.F.R. §§ 3.6, 3.303 (2012). 2. The criteria for service connection blurred vision have not been met. 38 U.S.C.A. §§ 101, 106, 1131(West 2002); 38 C.F.R. §§ 3.6, 3.303 (2012). 3. The criteria for service connection of pes planus have not been met. 38 U.S.C.A. §§ 101, 106, 1131(West 2002); 38 C.F.R. §§ 3.6, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the appellant was provided all required notice in a letter sent in August 2007, prior to the initial adjudication of the claims. VA has obtained service treatment records, assisted the appellant in obtaining evidence, and afforded the appellant the opportunity to give testimony before the Board and the RO. All known and available records relevant to the issues on appeal have been obtained, and the appellant has not contended otherwise. VA provided VA examinations for the claims of service connection for headaches and blurred vision and obtained nexus opinions, and the Board finds the examinations and opinions were adequate: the examiners reviewed the claims file, conducted all necessary testing, and examined the appellant and the opinions are supported by rationale and consistent with the record. The Board acknowledges that the appellant was not provided a VA examination and that no VA medical opinion was obtained in response to the claim for service connection for pes planus. No such examination or opinion is required, however, because although the record contains competent evidence of pes planus, the probative evidence does not suggest the existence of pes planus during service or indicate that the pes planus may be associated with service. 38 C.F.R. § 3.159(c)(4). Accordingly, the Board will address the merits of the claims. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty for training. 38 U.S.C.A. §§ 101, 106, 1131(West 2002); 38 C.F.R. §§ 3.6, 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background A May 1984 emergency treatment record reflects that the appellant was struck by a "2x4" board on the scalp. He denied loss of consciousness but reported numbness on the right side of the head. He also reported that he initially had blurred vision, though it was fine at the time of evaluation. There was a bump on the right side of his head. Corrected visual acuity was 20/20 in the right eye and 20/25 in the left eye. The appellant was diagnosed with scalp contusion and told to return as needed if any changes were "noted/listed on the head injury sheet." An undated statement from the appellant reflects the appellant's history of cracking his left front tooth on July 20, 1985, which resulted in pain, headaches, and trouble sleeping. A March 1993 private treatment record reflects the appellant's negative history as to headaches. See H.B. treatment record. A November 2009 VA neurological examination record reflects the appellant's history of headaches in his eyes, mainly affecting the left side. He reported that the headaches began in 1985 or 1986 and "became unbearable in like 1997." The appellant added that he had headaches in service, though he believed it could have been stress. He also reported that he was hit in the head with a 4x4 in 1984, which "knocked him out" resulting in a concussion and a week of bedrest. The appellant explained that he had treated the headaches with over-the-counter medication. The appellant reported that he was also hit with a mop on the left side of his head in 2001. After examination, the appellant was assessed with cluster headaches. The examiner opined that the headaches were not due to or a result of the in-service injury. The examiner explained that no chronic neurological condition was noted during active duty and there was no evidence of treatment for a compensable neurological condition within one year of active duty. Furthermore, the examiner noted that the appellant complained of left-sided headaches but the treatment documentation showed the in-service scalp contusion was on the right side. The report of a November 2009 VA eye examination reflects that the appellant reported a history of intermittent blurring of vision, which lasted several hours and varied from eye to eye and day to day. He also reported being hit by a wood plank during service. After examination, the examiner determined that the appellant was in "good ocular health" and that the poor subjective visual acuities did not correlate with the objective ocular health and minimal refractive error. Headache Disability Service connection is not warranted for a headache disability because the preponderance of the evidence shows that no headache disability was present in service and that the appellant's current headaches are not related to service. Initially, the Board finds the competent evidence does not suggest that a chronic headache disability was present in service. The service treatment records reflect no findings or histories suggestive of a headache disability, and the first documented diagnosis of a headache disability was in 2009, though the appellant received treatment prior to that time. The Board acknowledges that the appellant has reported headaches during and since service. Although the appellant is competent to report this history, the Board finds it is not credible, and thus not probative, due to the absence of a history of headaches during service, though the appellant was told to follow-up if he had symptoms after the head injury, the negative history of headaches in 1993, and the undated statement which does not report a longstanding history of headaches but rather suggests acute occurrence related to dental issues. The competent evidence also does not suggest that the headache disability is related to service. A VA examiner has provided a probative opinion that the headache disability is not related to service. There is no contrary medical opinion of record. Although the appellant might believe that his headache disability is related to the in-service injury, his assertion of a relationship is not competent evidence of a nexus: the record does not include a credible history of continuity of symptomatology, the headaches do not affect the side of the head involved in the in-service injury, and the record does not otherwise suggest the appellant, who is a layperson, is competent to determine the cause of the headache disability. Accordingly, service connection is not warranted for this disability. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. Blurred Vision Service connection is not warranted for blurred vision because the evidence does not show that any currently present disability manifested by blurred vision is due to a disease or injury incurred or aggravated during service. The Board acknowledges that the appellant presented with a history of blurred vision, resolved, at the time of treatment for the head injury and that he currently reports episodes of blurred vision. The appellant has not alleged that he has experienced episodes of blurred vision since the injury. Moreover, as a layperson, he is not competent to attribute any currently present blurred vision to a disease or injury. As discussed above a VA examiner determined that the appellant exhibited "good ocular health." The Board acknowledges that the VA examiner did find that the appellant had refractive error. Refractive error is not a disease or injury for VA compensation purposes. 38 C.F.R. § 3.303(c). In sum, there is no competent evidence showing that any blurred vision present during the period of this claim is due to a disease or injury. Accordingly, service connection is not warranted for this claimed disability. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. Pes Planus The appellant has reported that he was diagnosed with "severe" flat feet in January 1986, when leaving service. See July 2007 claim. He has also reported that his arches fell because of the boots he had to wear in service and that his arches "blew out" in service because of his duties as a pole climber. See August 2007 and July 2010 statements. The service treatment records are negative for evidence of pes planus. A May 2006 treatment record reflects that the appellant reported that his feet hurt. Examination revealed fallen arches. The examiner also noted that the Appellant was "very much" overweight. The appellant was assessed with pes planus. July 2006 treatment records reflect the appellant's history of foot pain for 2.5 years. The records indicate that the foot pain was tied to the Appellant's weight. A May 2008 treatment record reflects a diagnosis of acquired pes planus. A June 2009 treatment record reflects a finding of "flat feet/over weight." See Basse treatment records. Service connection is not warranted for pes planus because the preponderance of the evidence shows that it was not present in service and is not related to service. Initially, the Board finds the probative evidence does not suggest that pes planus was present in service. The service treatment records reflect no findings or histories suggestive of pes planus, and the medical records suggest the condition began more than 20 years after military service. The Board acknowledges that the appellant currently reports symptoms indicative of pes planus during service. Although the appellant is competent to report this history, the Board finds it is not credible, and thus not probative, in light of the previously reported history that the condition, namely the foot pain associated with the condition, began in approximately 2004. Thus, the Board finds pes planus was not present in service. The probative evidence also does not suggest that the pes planus is related to service. The record includes no medical findings/studies or probative lay evidence suggesting such a link; instead, the medical records suggest that the pes planus is secondary to the appellant's weight. Accordingly, service connection is not warranted for this disability. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for a headache disability is denied. Service connection for blurred vision is denied. Service connection for bilateral pes planus is denied. REMAND The appellant has reported that as a result of working as a pole climber in service, he "blew out" both of his wrists during service, resulting in numbness. He has indicated that he was diagnosed with bilateral carpal tunnel syndrome in January 1986, when leaving service, that he subsequently had surgery, and that he still has problems with his hands when doing repetitive tasks. See July 2007 claim. Based on the evidence of carpal tunnel syndrome in 1993 and the competent histories of symptoms suggestive of carpal tunnel syndrome during service and since the treatment in 1993, a VA examination is needed. See 38 U.S.C.A. § 5103A(d). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain a copy of any outstanding records pertinent to the claim. 2. Then, afford the appellant an examination by a physician with sufficient expertise to determine the etiology of the reported carpal tunnel syndrome. The claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders must be made available to and reviewed by the examiner. The examiner should state whether the appellant has carpal tunnel syndrome or has had it at any time during the pendency of the claim. If so, the examiner should state whether it is at least as likely as not (50 percent or higher degree of probability) that the disorder began in or is etiologically related to the appellant's period of service from March 1984 to July 1984? The examiner must provide the rationale for all opinions expressed. If any required opinion cannot be provided, the examiner should explain why the opinion cannot be provided. 3. Undertake any other indicated development. 4. Thereafter, readjudicate the claim. If the benefit sought on appeal is not granted to the appellant's satisfaction, issue a supplemental statement of the case to the appellant and his representative and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs