Citation Nr: 1321675	
Decision Date: 07/08/13    Archive Date: 07/18/13

DOCKET NO.  09-46 523A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for a bilateral knee disability.

2.  Entitlement to service connection for fibromyalgia.

3.  Entitlement to service connection for bilateral uveitis/visual impairment.

4.  Entitlement to service connection for hearing loss.

5.  Entitlement to service connection for tinnitus.

6.  Entitlement to service connection for bilateral glaucoma.

7.  Entitlement to service connection for arteriosclerotic heart disease, to include arrhythmia.

8.  Entitlement to service connection for varicocele.

9.  Entitlement to service connection for malignant neoplasm of the skin.
10.  Entitlement to service connection for residuals of a brain hemorrhage.

11.  Entitlement to service connection for dementia with memory loss.

12.  Entitlement to service connection for a disability of the mandible or maxilla.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

James R. Siegel, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from September 1942 to March 1946.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Regional Office (RO) that denied service connection for each disability in issue.  In March 2013 a Travel Board hearing was held before the undersigned.

The issues of service connection for bilateral glaucoma, arteriosclerotic heart disease, to include arrhythmia, residuals of a brain hemorrhage and dementia with memory loss are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if action on his part is required.

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).


FINDING OF FACT

It is not shown that the Veteran has a bilateral knee disability, fibromyalgia, bilateral uveitis/visual impairment, hearing loss, tinnitus, varicocele, malignant neoplasm of the skin or a disability of the maxilla or mandible or that such disabilities might be related to his service.


CONCLUSION OF LAW

Service connection for a bilateral knee disability, fibromyalgia, bilateral uneitis/visual impairment, hearing loss, tinnitus, varicocele, malignant neoplasm of the skin and/or a disability of the maxilla or mandible is not warranted.  38 U.S.C.A. §§ 1110, 5107 (West 2002).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication.  Letters dated in March, May and August 2007, and January 2008 explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing.  These letters also informed the appellant of disability rating and effective date criteria.  He has had ample opportunity to respond and supplement the record, and has not alleged that notice in this case was less than adequate.  

The Board notes the service treatment records (STRs) are not available.  VA has made several attempts to obtain them.  The May 2007 letter informed the Veteran that his STRs could not be obtained.  He was advised to provide information concerning any treatment he received for a claimed condition in service, as well as documents that could substitute for the service treatment records, including statements from military medical personnel, buddy statements, medical evidence following service, etc.  In March 2008, the VA made a formal determination the Veteran's service records were unavailable, and listed the efforts that were made to retrieve those records.  In cases such as these, the VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule.  Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  The Board's analysis of the appellant's claim was undertaken with this duty in mind.  The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran.  Russo v. Brown, 9 Vet. App. 46 (1996).

The Veteran has not been afforded a an examination to secure an opinion regarding the etiology of any disability that is being considered on the merits herein.  The Board finds that based on the evidence of record, an examination is not necessary.  As is discussed in greater detail below, the record does not show diagnoses of these claimed disabilities (or include evidence that they may be related to service). 38 C.F.R. §  3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the appeals on these claims, and that no further development of the evidentiary record is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  The Veteran has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met.  

Factual background, legal criteria and analysis

The Board has reviewed all of the evidence in the appellant's claims file and in Virtual VA.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of 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 claims and what the evidence of record shows, or fails to show, with respect to each 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 may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a nexus between the claimed disability and the disease or injury in service.  See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004).  
The Veteran asserts he was a radar engineer in service and that he was exposed to radiation from microwaves.  He claims that after a few months of such exposure, members of his unit went on sick call for various complaints, including tinnitus, memory loss and visual impairment.  He states he developed a cyst on his breast and that he had a growth on his testicles.  He argues that the most current research establishes that ambient radiation is harmful. 

Private and VA medical records do not show any complaints or findings pertaining to any disability addressed on the merits herein.  

Of record are articles on non-ionizing radiation.  These articles discuss the potential hazards of exposure to microwave radiation.  

At the Travel Board hearing the Veteran was advised that to substantiate his claims in addition to showing exposure to microwaves he must show both that he has diagnoses of the claimed disabilities and that they are related to his service/microwave exposure therein, as alleged.  At his request he was granted a 60 day abeyance period to submit nexus evidence.  That period of time has lapsed; no additional evidence was received.

The Veteran claims service connection is warranted for each disability being addressed because each  resulted from his exposure to microwaves during service.  A military record shows that he was a radar repairman in service.  

The United States Court of Appeals for Veterans Claims (Court) has taken judicial notice that radar equipment emits micro-wave type, non-ionizing radiation.  See Rucker v. Brown, 10 Vet. App. 67, 69, 71-72 (1997) (citing The Microwave Problem, Scientific American, September 1986; Effects upon Health of Occupational Exposure to Microwave Radiation (RADAR), American Journal of Epidemiology, Vol. 112, 1980; and Biological Effects of Radiofrequency Radiation, United States Environmental Protection Agency, September 1984).  Non-ionizing exposure is not the type of radiation exposure addressed by the VA regulations found at 38 C.F.R. §§ 3.309 , 3.311 (2012).

The record does not show that the Veteran currently has a bilateral knee disability, fibromyalgia, , bilateral uveitis, hearing loss, tinnitus, varicocele, neoplasm of the skin, or a disability of the mandible or maxilla.  The articles the Veteran submitted are general in nature, and do not show he has these claimed disabilities or that if present they would be related to his exposure to non-ionizing radiation/microwaves, as alleged.  He testified at the hearing before the undersigned that he discussed these matters with a healthcare provider.  As has been noted, he was afforded opportunity (an abeyance period) to submit evidence he has such disabilities, and that they are related to his service; he has not done so.  The preponderance of the evidence is, therefore, against findings that the Veteran has a bilateral knee disability, fibromyalgia, uveitis, hearing loss, tinnitus, a varicocele, neoplasm of the skin, or a disability of the maxilla or mandible and also against findings that such disabilities, if shown, would be related to his service, to include as due to microwave/radar exposure therein.  

Congress specifically limited entitlement to service-connection to those instances where a disease or injury in service resulted in a chronic [currently shown] disability.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).  In the absence of competent evidence the Veteran has a bilateral knee disability, fibromyalgia, bilateral uveitis, hearing loss, tinnitus, varicocele, a neoplasm of the skin, or a disability of the mandible or maxilla, service connection for such disabilities is not warranted.  .

The Board has considered the applicability of the benefit of the doubt doctrine.  As the preponderance of the evidence is against these claims, that doctrine does not apply.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).


ORDER

Service connection for a bilateral knee disability, fibromyalgia, bilateral visual impairment/uveitis, hearing loss, tinnitus, varicocele, malignant neoplasm of the skin, and disability of the maxilla or mandible is denied.
REMAND

Private medical records show that the Veteran was afforded a coronary angiogram in August 2005.  It revealed severe three vessel coronary artery disease.  Magnetic resonance imaging (MRI) of the brain in April 2006 demonstrated an acute infarct in the left parieto-occipital region and mild to moderate stenosis of the left internal carotid artery.  

VA outpatient treatment records show the Veteran was seen for a psychological evaluation in May 2005.  A past medical history of myocardial infarction, status post coronary artery bypass graft ten years ago, and glaucoma was reported.  The Veteran related that his memory has been declining, and that he specifically became aware of this following the coronary artery bypass graft.  He reported he was involved in radar engineering in service and wondered about his possible exposure to radiation.  The impression was that the Veteran's cognitive abilities were very functional compared to similarly aged peers.  Given that he was above average intellectually premorbidly, there was at least some suggestion of slight attentional difficulties, perhaps mildly slowed processing, and possible early but very mild memory problems.  It was reiterated that the Veteran reported memory changes following his coronary artery bypass graft and, to the extent this was true, then the cognitive difficulties might represent longer standing residuals of the bypass surgery.   If the changes were more recent, and if they continue to occur, then dementia might be a more parsimonious explanation.  

The Veteran was seen by the same examiner in May 2007.  The impression was that much like the previous neurocognitive examination, the Veteran's performance in some areas, while average, might be slightly lower than expected given his estimated premorbid functioning.  The examiner stated that when he was last seen, the Veteran reported memory declines after his coronary artery bypass graft.  On the examination in 2007, he was more insistent that memory problems had been present, although perhaps variable, since service.  He attributed the memory difficulties to radiation exposure.  Thus, to the extent that very slight memory and attentional problems were present, these have been long standing, with unclear etiology (residuals of a coronary artery bypass graft versus radiation exposure).  The absence of decline in cognitive abilities over the last two years did not suggest a neurodegenerative condition.  

The Board notes the Veteran has not been afforded an examination to assess the etiology of his glaucoma, arteriosclerotic heart disease, residuals of a brain hemorrhage and dementia with memory loss.

Under the circumstances, the Board is of the opinion additional development is necessary.  

Accordingly, the case is REMANDED for the following:

1.  The RO should arrange for VA ophthalmologic,  cardiovascular, neurological and psychiatric examinations to determine the existence and likely etiology of any current glaucoma, heart disease, residuals of a brain hemorrhage and dementia with memory loss.  The Veteran's entire record must be reviewed by the examiners, each in conjunction with the examination, and all pertinent history and findings should be noted.  The examiners 

The ophthalmology examiner should ascertain whether or not the Veteran has glaucoma, and if so provide an opinion as to whether it is at least as likely as not (a 50 % or better probability) that the glaucoma is related to service, to include as due to radar/microwave exposure therein.  

The cardiovascular examiner should indicate whether the Veteran has arteriosclerotic heart disease, and if so whether it is at least as likely as not (a 50 % or better probability) that such is related to his service, to include as due to radar/microwave exposure therein.  
The neurology examiner should furnish an opinion as to whether it is at least as likely as not (a 50 % or better probability) that the Veteran's residuals of a brain hemorrhage are related to his service, including as due to radar/microwave exposure therein.  

The psychiatric examiner should offer an opinion as to whether it is at least as likely as not (a 50 % or higher probability) that the Veteran's dementia and memory loss are related to his service, to include as due to radar/microwaves therein.  

Each examiner must explain the rationale for all opinions.

2.  Following completion of the above, the RO should review the record and readjudicate the Veteran's claims remaining on appeal.  If any remain denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board for further appellate consideration.  

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs