Citation Nr: 1321393 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-39 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a right knee disability manifested by chronic knee pain. 2. Entitlement to service connection for an eye disability, to include retinal holes. 3. Entitlement to service connection for a right foot disability, to include hallux valgus. 4. Entitlement to service connection for gastroesophageal reflux disease (GERD). 5. Entitlement to service connection for a left elbow disability, to include left elbow epicondylitis. ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1987 to April 2008. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO), New Orleans, Louisiana. The Board notes that in August 2009, the RO granted the Veteran's claims of entitlement to service connection for degenerative joint disease, degenerative facet changes L4-5 and L5-S1, and migraine headaches. In view of the foregoing, these issues have been resolved and are no longer before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997). The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that these claims must be remanded for further evidentiary development. Reasons for remand Evidentiary development The Veteran stated on his February 2009 notice of disagreement that he is currently employed with the Merchant Marines and was to be deployed overseas. Furthermore, in a statement dated April 2009, he indicated that his service with the Merchant Marines was for Operation Enduring Freedom/Operation Iraqi Freedom. The Board notes that the claims folder is negative for any deployment examination or other treatment records from the Veteran's service with the Merchant Marines. Inasmuch as VA is on notice of the potential existence of additional records from the Merchant Marines, records for such should be obtained prior to any further appellate review of this case following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. See M21-1MR, Part III, Subpart iii, 2.F.38. VA examination The Veteran contends that his claimed eye disability, right foot disability, GERD, and left elbow disability are related to his military service. In this regard, the Veteran was afforded a VA examination in April 2008 for his claimed eye disability as well as in April 2010 for his claimed right foot, GERD, and left elbow disabilities. During the April 2008 VA examination, the Veteran complained of burning and floaters/lightning flashes in the right eye as well as halos around lights in both eyes. After examination of the Veteran, the VA examiner diagnosed the Veteran with refractive error. The Board notes that the law provides that refractive errors of the eyes are congenital or developmental defects and not disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes 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. Thus, VA regulations specifically prohibit service connection for refractive errors of the eyes unless such defect was the subject of aggravation by a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental, or familial origin, unless the defect was subject to a superimposed disease or injury). The Board also notes that the remainder of the competent and probative evidence of record associated with the Veteran's claims folder subsequent to the filing of his claim in April 2008 does not indicate any other eye disability. During the April 2010 VA examination, the Veteran complained of right foot pain, left elbow pain, and heartburn with eating spicy foods. After examination of the Veteran, the VA examiner declined to diagnose the Veteran with a right foot disability, left elbow disability, or GERD. The examiner specifically noted that examinations of these claimed disabilities were normal. The Board notes that the record does not otherwise indicate right foot, left elbow, or GERD disabilities following the filing of the Veteran's service connection claims in April 2008. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). To be present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). However, the Board recognizes the Court's decision in Romanowsky v. Shinseki, No. 11-3272 (U.S. Vet. App. May 9, 2013) which held that a claimant satisfies the current disability threshold when a disability exists at the time his or her claim was filed, even if the disability resolves prior to VA's adjudication of the claim. In this case, although an eye disability for compensation purposes, a right foot disability, a left elbow disability, and GERD were not rendered during the VA examinations, the Board observes that a treatment record dated March 2008 from the Naval Branch Health Clinic (NBHC) Naval Training Center (NTC) documents a diagnosis of left lateral epicondylitis (tennis elbow). Furthermore, service treatment records dated July 2007 and November 2000 indicate treatment for retinal holes. A December 2001 service treatment record notes a right retinal tear. Additionally, a service treatment record dated May 2007 documents a diagnosis of GERD. Finally, a service treatment record dated November 2003 indicates treatment for hallux valgus and pes planus of the right foot. The Veteran's April 1987 enlistment examination also notes pes planus. The evidence of record is unclear as to whether the Veteran's eye, right foot, and left elbow disabilities as well as his GERD existed at the time he filed service connection for these claims in April 2008. In light of the Court's decision in Romanowsky, the Board is of the opinion that a clarifying medical opinion would be probative in ascertaining whether the Veteran's previously diagnosed right foot, eye, and left elbow disabilities as well as his GERD resolved prior to the filing of his claim in April 2008, and if not, whether such disabilities are related to his military service. See Charles v. Principi, 16 Vet. App. 370 (2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2012) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). Additionally, if competent and probative evidence of a right knee disability is associated with the record following Remand, a medical opinion should be obtained addressing the etiology of such. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims remanded herein. Based on his response, attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of whether or not the Veteran responds, request any treatment records from the National Personnel Records Center (NPRC) pertaining to the Veteran's service with the Merchant Marines. All attempts to secure this evidence must be documented in the claims folder. If, after making reasonable efforts to obtain named records, the records are unavailable, notify the Veteran and (a) identify the specific records that VA is unable to obtain; (b) briefly explain the efforts that were made to obtain those records; and (c) describe any further action to be taken by VA with respect to the claims. The Veteran must then be given an opportunity to respond. 2. The Veteran should then be afforded an appropriate VA examination to determine the nature and etiology of his eye, right foot, right knee, and left elbow disabilities as well as his GERD. The Veteran's claims folder must be made available to the examiner prior to the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims folder and the clinical findings of the examination, the examiner must: a) Identify any current eye disability, to include retinal holes. b) If an eye disability, to include retinal holes, is not identified, render an opinion as to when the eye disability resolved, in particular if it resolved prior to April 2008 when the Veteran filed his claim for VA benefits. Please discuss the July 2007 and November 2000 service treatment records noting a diagnosis of retinal holes. c) If an eye disability, to include retinal holes, is identified at any time during the course of the appeal period, provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the disability is related to the Veteran's period of military service. d) Identify any current right foot disability, to include hallux valgus and pes planus. e) If a right foot disability is not identified, render an opinion as to when the right foot disability resolved, in particular if it resolved prior to April 2008 when the Veteran filed his claim for VA benefits. Please discuss the November 2003 service treatment record noting a diagnosis of hallux valgus and pes planus as well as the Veteran's April 1987 service enlistment examination documenting a diagnosis of pes planus. f) If pes planus of the right foot is identified at any time during the course of the appeal period, provide an opinion as to whether there is clear and unmistakable evidence that the Veteran had pes planus of the right foot prior to his entry onto active duty. g) If the VA examiner determines that the Veteran's pes planus of the right foot pre-existed his military service, provide an opinion as to whether there is clear and unmistakable evidence that it was NOT aggravated to a permanent degree during his period of service beyond that which would be due to the natural progression of the disability. h) If the VA examiner determines that the Veteran's pes planus of the right foot did not pre-exist his military service, provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the pes planus of the right foot or any other diagnosed right foot disability is related to the Veteran's period of military service. i) Identify any current left elbow disability, to include left lateral epicondylitis. j) If a left elbow disability is not identified, render an opinion as to when the left elbow disability resolved, in particular if it resolved prior to April 2008 when the Veteran filed his claim for VA benefits. Please discuss the March 2008 treatment record from the NBHC BTC noting a diagnosis of left lateral epicondylitis. k) If a left elbow disability is identified at any time during the course of the appeal period, provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the disability is related to the Veteran's period of military service. l) Identify any current disability manifested by GERD. m) If GERD is not identified, render an opinion as to when the GERD resolved, in particular if it resolved prior to April 2008 when the Veteran filed his claim for VA benefits. Please discuss the May 2007 service treatment record noting a diagnosis of GERD. n) If GERD is identified at any time during the course of the appeal period, provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the disability is related to the Veteran's period of military service. o) Identify any current right knee disability manifested by chronic knee pain. p) If a right knee disability is identified, provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the disability is related to the Veteran's period of military service. The examiner should indicate in his/her report that the claims folder was reviewed. A rationale for all opinions expressed should be provided. A report should be prepared and associated with the Veteran's VA claims folder. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If the claims remain denied, a supplemental statement of the case should be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2012). _________________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).