Citation Nr: 1324660 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 08-20 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for vision impairment. 2. Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD). 3. Entitlement to an initial increase disability rating in excess of 70 percent for service connected PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active service from August 1976 to January 1979. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2006 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Subsequently, in a January 2007 rating decision, the RO confirmed and continued the denial of service connection for those claims. The Veteran was afforded a Travel Board Hearing before the undersigned Veterans Law Judge (VLJ) in April 2011. A written transcript of that hearing was prepared and incorporated into the evidence of record. In August 2011, the Board remanded this matter for further development. The issue of entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, anxiety, and passive-aggressive personality disorder, and entitlement to service connection arthritis of the right hand were also previously remanded. In August 2012, the Appeals Management Center (AMC) issued a rating decision granting entitlement to service connection for PTSD (claimed as major depressive disorder). However, as stated in the August 2011 Board remand, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. In addition to his diagnoses for major depressive disorder, anxiety, and passive-aggressive personality disorder, the Veteran was also diagnosed with panic disorder (without agoraphobia) in February 2012. As such, the Board has recharacterized the issue as one for service connection for service connection for an acquired psychiatric disorder, other than PTSD, given the nature of the Veteran's claim and the medical evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Following the development requested by the Board was complete, the AMC also granted entitlement to service connection for post traumatic arthritis of the right wrist; post traumatic degenerative joint disease (DJD) of the right index finger; post traumatic DJD of the right middle (long) finger; post traumatic DJD of the right ring finger; post traumatic DJD of the right little finger; and post traumatic DJD of the right thumb in the August 2012 rating decision. As these grants of service connection represent a full grant of benefits on appeal with respect to those issues, (namely, the issue of entitlement to service connection for arthritis of the right hand) they are no longer in appellate status or before the Board. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The issue of entitlement to service connection for hydrocele was previously referred by the Board in August 2011, but there is no indication that the Agency of Original Jurisdiction (AOJ) has taken any action on that claim. The issues of entitlement to service connection for sleep apnea, to include as secondary to his PTSD, and total disability rating based on individual unemployability have been raised by the record in a November 2012 statement and have not been adjudicated by AOJ. Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. The issues of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, and entitlement to an initial increase disability rating in excess of 70 percent for service connected PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The preponderance of the evidence is against a finding that the Veteran's visual impairment is the result of a disease or injury associated with his active service. CONCLUSION OF LAW The Veteran's visual impairment was not incurred in or aggravated by active military service, and is not otherwise shown to be related to service. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim decided herein, the VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and 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. The notice requirements described above apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In November 2004, December 2004, March 2005, August 2006, and October 2011, the agency of original jurisdiction (AOJ) provided the notices required by 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the AOJ notified the Veteran of information and evidence necessary to substantiate the claim for service connection; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The August 2006 letter also provided the Veteran with the notice pursuant to Dingess. Although the Veteran was not provided notice of the effective date and disability rating regulations until after the initial adjudication, because service connection has been denied, any question as to the appropriate disability rating or effective date is moot, and there can be no failure-to-notify prejudice to the Veteran. Id. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The record indicates the VA has successfully attempted to obtain, to the extent possible, all private and VA medical records identified by the Veteran. The Board acknowledges that some of the Veteran's service treatment records are absent from the record. According to a December 2008 Memorandum, a formal finding was made determining that the service treatment records were unavailable. Under such circumstances, the United States Court of Appeals for Veterans Claims (Court) has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). As some of the Veteran's in-service treatment records remain absent from the file, the Board's analysis has been undertaken with the heightened obligation set forth in Cuevas and O'Hare in mind. It is further noted, however, that the case law does not 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 of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Veteran was afforded a VA examination in February 2012 and April 2012 pursuant to the Board's Remand. The opinion involved review of the claims file and thorough examinations of the Veteran and the opinion was supported by sufficient rationale. Therefore, the Board finds that the examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Veteran has been afforded a hearing in April 2011 before the undersigned VLJ in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the hearing, the Veteran's representative asked questions directed at identifying whether the Veteran met the criteria for a grant of service connection. The VLJ sought to identify any pertinent evidence not currently associated with the claim. The VLJ also advised the Veteran and his representative that a medical opinion linking the Veteran's diagnosis and his military service was essential to the Veteran's claim. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that no further action pursuant to Bryant is necessary. Additionally, the Board finds there has been substantial compliance with its August 2011 remand directives. The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) The Veteran's VA treatment records prior to September 2004 have been obtained and associated with the claims file. The Veteran's service personnel records, including microfiche copies, have been obtained. Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite information necessary to make a decision on the Veteran's claim. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remands. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2012). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted arguments and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. II. Merits of the Claim The Veteran contends that his vision impairment is a result of his time in service. Specifically, the Veteran contends that his military occupation as a sonar technician, which involved spending hours at a time in a small dark space monitoring a phosphorescent sonar screen, quickly deteriorated his eyesight. The Veteran's DD 214 confirms he was a sonar technician during his military service. Governing Laws and Regulations Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). As an alternative to the nexus requirement, service connection may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b) (2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Board notes that the Veteran is claiming vision impairment which is not subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.309(a). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board must assess the credibility and weight of all pertinent evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis As stated above, the Veteran's service treatment records are incomplete. However, according to the Veteran's May 1976 entrance examination, the eyes were normal, bilaterally. His distant vision was 20/30, bilaterally, and near vision was J-4, bilaterally. The Veteran submitted an eyeglass prescription from Dr. F. F., dated May 2010 and August 2011, which does not indicate whether his vision impairment is related to his military service. The Veteran was afforded a VA Disability Benefits Questionnaire (DBQ) examination in February 2012 where he was diagnosed with Pavingstone degeneration and cataracts. The Veteran stated to the VA examiner that he believed his eye disorders were caused by his military duties as a sonar technician. A physical examination revealed the following visual acuity: 20/100 uncorrected distance of the right eye; 20/70 uncorrected distance of the left eye; 20/70 uncorrected near of the right eye; 20/100 uncorrected near of the left eye; and 20/40 or better corrected distance and near, bilaterally. The Veteran's right pupil was 5 mm and the left pupil was 4mm. They were round and reactive to light without afferent pupillary defects. The Veteran did not have any anatomical loss, light perception only, extremely poor vision, or blindness of either eye. There was no presence of corneal irregularity that results in severe irregular astigmatism. There was also no evidence of diplopia. A tonometry was performed revealed right eye pressure of 11 and left eye pressure of 10. An examination of the Veteran's external lids/lashes, conjunctiva/sclera, cornea, anterior chamber, and iris were normal, bilaterally. The lens had trace nuclear sclerosis. The internal eye exam revealed abnormal fundus. The optic disc, macula, and vessels were normal, bilaterally. There was posterior vitreous detachment and inferior Pavingstone degeneration. The Veteran did not have visual field defect. The Veteran had preoperative cataracts and retinopathy, bilaterally. The examiner opined that the Veteran's eye disorders were less likely than not to have been caused by or resulted from military service. No rationale was provided In an April 2012 DBQ, a VA optometrist confirmed that the Veteran's eye disorders were less likely as not incurred in or caused by his military service as the Veteran's "refractive errors of myopia, astigmatism and presbyopia are normal physiological and age changes and are not caused by his military service. Each lens shows trance nuclear sclerotic lens opacities that are normal age and physiological changes and are not caused by his military service. Each eye does have vitreal degeneration that are normal physiological changes in the eye and not caused by his military service. Each retina has peripheral retinal degeneration that are congenital and not caused by his military service." The April 2012 VA examiner opined that it was less likely than not that the Veteran's eye disorders manifested as a result of military service. The examiner explained that the Veteran's current diagnoses were due to normal physiological changes or congenital. Furthermore, while it appears that the Veteran currently has several eye disorders, the record contains no competent or credible evidence supporting the proposition that there is an etiological relationship to service. As such, service connection is not warranted. The Board recognizes that the Veteran truly believes he is entitled to service connection for visual impairments. While the Veteran is competent to report his symptomatology, the record contains no evidence to demonstrate that the Veteran has the requisite training or expertise to offer a medical opinion regarding the etiology of his current eye disorders. Accordingly, his opinions as to the etiology of his eye disorders are not probative and are outweighed by the medical evidence of record. Based on the lack of objective medical evidence demonstrating the Veteran's visual impairment/eye disorders are related to service, the Board finds that the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for vision impairment is denied. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). As previously stated, the issue of entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, anxiety, and passive-aggressive personality disorder was previously remanded in August 2011. In August 2012, the AMC granted the issue of entitlement to service connection for PTSD, claimed as major depressive disorder. However, the Board has bifurcated this issue as a claim for an acquired psychiatric disability, other than PTSD, given the nature of the Veteran's claim and the medical evidence of record. The Board notes that a Supplemental Statement of the Case (SSOC) for this issue as required by regulation and ordered by the Board in the August 2011 remand was not accomplished. Therefore, the Board has no discretion and must remand this issue for the Veteran to be issued a SSOC. 38 C.F.R. § 19.31(c) (2012); Stegall v .West, 11 Vet. App. 268, 271 (1998). Furthermore, upon the grant of entitlement to service connection for PTSD by the AMC, the Veteran submitted a Notice of Disagreement in November 2012, stating that he believes the rating should be higher than 70 percent. From the record, it appears the RO has not yet issued a Statement of the Case (SOC) addressing the issue of entitlement to an initial higher disability rating in excess of 70 percent for PTSD. When a veteran has filed a Notice of Disagreement and there is no SOC on file for that issue, the Board must remand, not refer, the issue to the RO for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). As such, the Board finds that a remand for this action is necessary. Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran an SOC concerning whether he is entitled to an initial rating higher than 70 percent for his service-connected PTSD. Advise the Veteran that he still needs to file a timely Substantive Appeal, such as a VA Form 9 or equivalent statement, in response to the SOC to "perfect" an appeal to the Board concerning this additional claim. He also must be advised of the time period he has to perfect this appeal. If, and only if, he submits a timely Substantive Appeal in response to this SOC, thereby perfecting his appeal of this additional claim, it should be returned to the Board for further appellate consideration. 2. After completing any other development deemed necessary, readjudicate the issue of entitlement to service connection for an acquired psychiatric disability other than PTSD. If any benefit sought remains denied, provide an SSOC to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs