Citation Nr: 1319080 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 10-35 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a right eye disability, claimed as cataracts, loss of vision, and macular degeneration with ptosis. 2. Entitlement to service connection for an essential tremor of the right side of the body. 3. Entitlement to special monthly compensation (SMC) based on aid and attendance. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from February 1946 to April 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Please note this 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). FINDINGS OF FACT 1. The Veteran's right eye disability did not manifest during service and is not causally or etiologically related to service. 2. The Veteran's right side essential tremors did not manifest during service and are not causally or etiologically related to service. 3. The Veteran is not in need of regular aid and attendance due to his service-connected psychoneurosis, conversion reaction. CONCLUSIONS OF LAW 1. The criteria for service connection for a right eye disability have not been met. 38 U.S.C.A. §§1131, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2012). 2. The criteria for service connection for right side essential tremors have not been met. 38 U.S.C.A. §§1131, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2012). 3. The criteria for an award of special monthly compensation based on the need for the regular aid and attendance have not been met. 38 U.S.C.A. §§ 1114, 5107 (West 2002); 38 C.F.R. §§ 3.350, 3.353(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The record shows that through letters dated in August 2009 and September 2009, the VCAA notice requirements were satisfied. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA treatment records, private treatment reports, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. In this decision, the Board finds that there was no in-service injury or disease, including no chronic in-service symptoms of a right eye disability or of essential tremors to which current complaints may be related. There is also no competent or credible evidence otherwise indicating that the current disabilities are related to service. For his part, the Veteran has only offered his own conclusory, generalized statements linking the claimed disabilities to service. Accordingly, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claims for service connection for a right eye disability and essential tremors of the right side, and none was provided. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d) The Veteran was not examined in connection with his claim for aid and attendance benefits, because he has not contended his service connected disability (a psychiatric disorder) is the basis for this benefit, and no evidence indicates that it is so. Service Connection - Laws and Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection 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); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9; VA Manual M21-1, Part VI, Subchapter II, para. 11.07. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection - Right Eye The Veteran has a current diagnosis of severe ptosis, macular degeneration, and cataract of the right eye. Active service treatment records show no complaints of vision loss or eye disability. In March 1947, the Veteran's right eye visual acuity was noted as 20/20. On the May 1948 report of medical history prepared in connection with an examination conducted for VA purposes, despite noting multiple other complaints, the Veteran specifically noted no eye trouble. On the corresponding VA examination, the examiner noted no significant abnormality of the eyes regarding parallel movements, nystagmus, field of vision, or accommodation. Many years later, a September 2005 statement from a private physician shows a diagnosis of severe ptosis, macular degeneration, cataracts of the right eye, and a note that the Veteran is somewhat vision impaired. Additionally, a VA examiner diagnosed transient monocular blindness in November 2009. The Veteran contends that his current right eye complaints are causally related to service. However, he is not shown to possess any medical expertise and therefore any medical opinions he asserts are not of probative value. He is competent to report his symptoms, but his current assertions that his eye problem has always existed are contradicted by the medical reports from service and the ensuing years, as described above. Contemporaneously recorded documents are considered to be a more accurate reflection of the Veteran's condition at that time, than a history he provides more than sixty years later. Therefore, those records are accorded more probative value. The Board is thus left with a record that fails to show any in-service disease or injury to which the claimed disability is competently indicated to be related, or which shows chronic symptoms of an eye disability since service. In view of this, a basis upon which to establish service connection for a right eye disability has not been presented. As the preponderance of the evidence is against the claim for service connection for a right eye disability, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection - Essential Tremors The Veteran asserts that his right side essential tremors have existed since service, specifically since a fall during service. The Board acknowledges that the Veteran's service treatment records show consistent reports of a fall in 1946, as well as complaints of dizziness, headaches, and back problems during service. However, the reports do not indicate any essential tremors. Tremors of the extended fingers were noted in April 1952, but this was in the context of a psychiatric evaluation. Moreover, when the complaint was being evaluated in 2009 by VA, the Veteran advised that the problem had begun only one year earlier, (60+ years after service). The Veteran contends that his current right side essential tremors are causally related to service. However, the Board again notes that he is not shown to possess any medical expertise and therefore any medical opinions he asserts are not of significant probative value. Contemporaneously recorded documents are considered to be a more accurate reflection of the Veteran's condition at that time, than a history he provides more than sixty later, and as those records make no mention of tremors, the conclusion must be that they did not begin during service. In this case, the Veteran's service treatment records are silent regarding any tremors. Additionally, the Veteran's separation report of medical history and examination showed no complaints or diagnosis of tremors, and the Veteran advised they only began in 2008. The Board is thus left with a record that fails to show any in-service disease or injury to which the claimed disability is competently indicated to be related, or which shows chronic symptoms of a disability manifested by tremors since service. In view of this, a basis upon which to establish service connection for right side essential tremors has not been presented. As the preponderance of the evidence is against the claim for service connection for right side essential tremors the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Special Monthly Compensation - Aid and Attendance Special monthly compensation is payable to individuals who are permanently bedridden or are so helpless as a result of service-connected disability as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b)(3). Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: the inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; the frequent need of the adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; the inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). "Bedridden" will be a proper basis for the aid and attendance determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater-or-lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the Veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that the claimant's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. Id. The performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). After reviewing the evidence of record, the Board does not find that the evidence suggests that the Veteran's service-connected disabilities, alone, create the need for him to receive regular aid and attendance. The Veteran is service-connected for psychoneurosis, conversion reaction, at a level of 10 percent. The record contains no evidence that the Veteran's service-connected disability causes or contributes in any way to his need for aid and attendance. The Veteran has other disabilities, to include dizziness, prostate problems, a stroke, limited vision, and essential tremors. A statement by a private physician notes that the Veteran's vision loss leaves him severely disabled; however, the Veteran's vision loss and other disabilities are neither related to service nor service-connected. The Board acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's statements of record. However, the Veteran's statements assert that he requires aid and attendance due to his vision loss and his essential tremors, which are not service-connected. The Veteran has not asserted, and the medical evidence of records does not show, that the Veteran's sole service-connected disability causes such impairment as to require aid and attendance. In sum, as the evidence of record fails to reflect that the Veteran requires regular aid and attendance due to his service-connected disability, the Veteran is not entitled to special monthly compensation for aid and attendance. Accordingly, the Veteran's appeal of this issue is denied. ORDER Entitlement to service connection for a right eye disability, claimed as cataracts, loss of vision, and macular degeneration with ptosis is denied. Entitlement to service connection for an essential tremor of the right side of the body is denied. Entitlement to special monthly compensation based on aid and attendance is denied. ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs