Citation Nr: 1327132 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-19 762 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for hypertension. 2. Entitlement to service connection for anemia. 3. Entitlement to service connection for arthritis. 4. Entitlement to service connection for a back disability. 5. Entitlement to service connection for cardiovascular disease, status-post myocardial infarction. 6. Entitlement to service connection for right ear hearing loss. 7. Entitlement to service connection for glaucoma. ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from March 1974 to March 1978. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran has also filed a Notice of Disagreement with an August 2010 rating decision and was recently issued a Statement of the Case regarding additional matters. To date, the Veteran has not perfected his appeal on these claims by submitting a substantive appeal. As such, the Board does not have jurisdiction over them. See 38 C.F.R. § 20.200 (2012) (An appeal consists of a timely filed notice of disagreement in writing and after a statement of the case has been furnished, a timely filed substantive appeal.). The issues of service connection for arthritis, right ear hearing loss and glaucoma 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 1. In an unappealed June 2005 rating decision, the RO denied service connection for hypertension. 2. The evidence received since the June 2005 rating decision does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim of service connection for hypertension. 3. Anemia did not have its clinical onset in service and is not otherwise related to active duty; anemia was not exhibited within the first post service year. 4. A back disability, including lumbar facet arthropathy, did not have its clinical onset in service and is not otherwise related to active duty. 5. Cardiovascular disease did not have its clinical onset in service and is not otherwise related to active duty; cardiovascular disease was not exhibited within the first post service year. CONCLUSIONS OF LAW 1. The June 2005 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. The evidence received since the June 2005 rating decision is not new and material, and the claim for service connection for hypertension is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Anemia was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 4. A back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2012). 5. Cardiovascular disease was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In claims to reopen, such as the Veteran's hypertension claim, VA must both notify a claimant of the evidence and information necessary to reopen the claim, as well as the evidence and information required to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy the above requirement, the Secretary must consider the bases for the denial in the prior decision and provide the claimant with a notice letter describing what evidence would be necessary to substantiate those elements required to establish service connection that were previously found insufficient. Here, the Veteran was sent a letter in July 2007 that provided information as to what evidence was required to substantiate the claims of service connection for heart attack, right ear hearing loss, glaucoma, hypertension, arthritis, back condition, and anemia. This letter also informed the Veteran of the division of responsibilities between VA and a claimant in developing an appeal and explained what type of information and evidence was needed to establish a disability rating and effective date. While this letter noted that the Veteran had previously been denied service connected for hypertension, it did not adequately describe the type of the evidence and information necessary to reopen the previously denied hypertension claim. Accordingly, no further development is required with respect to the duty to notify for the service connection claims, however additional notice regarding the requirements for new and material evidence with regard to the hypertension claim was issued in an April 2010 letter. The claim was thereafter readjudicated in a June 2013 Supplemental Statement of the Case. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). 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. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service treatment records are silent as to any complaints or treatment for anemia and cardiovascular disease. The Veteran does not specifically claim that pertinent disability had its onset in service only that it is related to active duty. The Veteran has also suggested that these disabilities may be due to other disability which he claims is related to service, but he is not service-connected for any disability and the competent evidence of record does not suggest a relationship. For these reasons, the evidence does not indicate that the claimed disability may be related to active service such as to require an examination, even under the low threshold of McLendon. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records through April 1976, as well as post-service reports of VA and private treatment and examination. Additional later service treatment records, including the Veteran's separation examination are not associated with the claims file. Attempts to locate these record from after the Veteran's return to the continental United States have been unsuccessful. In February 2009, the RO issued a Formal Finding on the Unavailability of Service Treatment Records. The Board recognizes that in such cases there is a heightened obligation to assist the appellant in the development of the case. There is also as a heightened obligation to explain findings and conclusions, and to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Board's analysis has been undertaken with this heightened 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 of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence - Hypertension The Veteran's claim of service connection for hypertension was originally denied in a June 2005 rating decision. The Veteran did not appeal that June 2005 decision and no new and material evidence was received within one year of the notice of that decision. Therefore, the provisions of 38 C.F.R. § 3.156(b) do not apply and that decision became final. See 38 C.F.R. § 20.1103. The Veteran filed a claim to reopen in March 2007. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. All evidence submitted by or on behalf of a claimant since the most recent final denial must be reviewed to determine whether the claim should be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). For purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-3 (1992). "New" evidence means existing evidence not previously submitted to agency decision makers. See 38 C.F.R. § 3.156. "Material" evidence is newly submitted evidence that relates to an unestablished fact necessary to substantiate the claim and presents the reasonable possibility of substantiating the claim. Id. The evidence raises a reasonable possibility of substantiating the claim if it relates to an unestablished element of the claim and the claim could be substantiated were a VA examination provided. Shade v. Shinseki, 24 Vet. App. 110, 119 (2010). It contemplates the likely entitlement to an examination if the claim was reopened. Shade, at 121. The June 2005 rating decision was based on findings that the Veteran did not have hypertension in service or within one year of his separation. At the time of this rating decision, the earliest record of this disability was a private treatment record dated March 1997, showing mild hypertension and a blood pressure reading of 166/110. The evidence since that rating decision includes additional, more recent treatment records showing continued diagnosis of and treatment for hypertension. The additional post-service treatment records are new in that they were not previously submitted to agency decision makers; however, these records address treatment for current hypertension and do not address whether hypertension had its onset in or was otherwise related to his military service. Evidence already established the presence of hypertension, what was lacking and is still missing from the record is competent evidence tending to show that hypertension had its onset in or was otherwise related to service. Thus, this new evidence is not material. See 38 C.F.R. § 3.156. The Veteran's additional statements in which he relates his hypertension to other conditions, including arthritis, is likewise not material as those conditions are not service connected and therefore, even if a positive medical nexus between them was shown, this would not raise a reasonable possibility of substantiating the claim. Accordingly, the Board concludes that the criteria for reopening the Veteran's claim of service connection for hypertension have not been satisfied. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Service Connection - Generally Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where the veteran served continuously for ninety (90) or more days during a period of war, and if anemia and/or cardiovascular disease became manifest to a degree of 10 percent or more within one year from the date of the veteran's termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Anemia The Veteran claims that his anemia is related to active service; he has not claimed and the record does not show that it had its onset in service. The Veteran was diagnosed with anemia in April 2003, about 25 years after service discharge, and he received treatment for this condition at that time. The report of that treatment noted that he felt weak and dizzy for a few days, which he noticed especially while playing golf. He recalled several episodes of blood on the toilet paper and denied previous episodes. There was a one week history of melena and laboratory testing revealed low levels of hematocrit and hemoglobin over a period of two days. Subsequent medical records do not reflect treatment or findings of anemia. Anemia was not present in service or within the first post service year. When anemia was found on clinical testing, the history was of symptoms beginning recently, with no mention of previous episodes or prior diagnoses. It is clear from the record that the disability had its onset many years after service and there is no competent evidence of record suggesting that it is related to service. Anemia requires laboratory testing to confirm its existence and the Veteran is not competent to diagnose the disability. Moreover, he has not claimed that symptoms of the disability had their onset in service. A basis for service connection is not established. Back Disability The Veteran claims that he injured his back in service and that current low back disability is due that injury. The medical record shows a current diagnosis of lumbar facet arthropathy. See May 2013 VA examination. Thus, the current disability requirement is satisfied with regard to this disability. The Veteran has reported injuring his back by carrying paint buckets up and down stairs of ship. See June 2009 VA Form 9. A portion of the Veteran's service treatment records are missing; however, the claimed in-service injury occurred aboard a ship, which is the period for which the Board has the Veteran's records, and not during his period in the continental United States, which is the period from which his service treatment records are missing. While not showing an in-service injury related to carrying paint buckets, the Veteran's service treatment records do show complaints of back pain. Thus, the in-service occurrence requirement is satisfied. The remaining question is whether the record contains nexus evidence establishing a connection between the Veteran's current back disability and his in-service complaints. The record does not contain a positive medical opinion. After a review of the claims file and a physical examination of the Veteran, the May 2013 examiner opined that the Veteran's current X-ray finding of lumbar facet arthropathy is less likely as not due to, proximately the result of, or a continuation of the back pain noted in-service. By way of rationale, this examiner noted that the service treatment records note complaints of back pain that were attributed to a muscular etiology and X-rays taken during service were within normal limits. The Veteran has not provided a positive medical nexus opinion to contradict this opinion. The Veteran is competent to report that he injured his back in service and had continuity of back pain symptomatology since then. However, the service treatment records reflect no evidence of lumbar facet arthropathy, the first medical evidence of such a diagnosis is thirty-five years after the Veteran's separation, and the earlier private treatment records of Dr. McNair make no reference to back pain and, indeed, include a specific denial of pain in a physical dated August 2000. See Maxson, 230 F.3d 1330, 1333 (allowing for consideration of evidence of a prolonged period without medical complaint and the amount of time that elapsed since military service as evidence against the claim). When the Veteran filed his initial compensation claim in 2005, he made no mention of back disability. It would seem that if back problems persisted since service and the Veteran knew of the compensation program, he would have mentioned the back disability at the time. The Veteran's complaints of injury and back pain in service are credible, but a claim of continued back pain since service is not found to be credible and continuity of symptomatology is not established. The Veteran believes his back disability was due to his military service. As a lay person, the Veteran can provide lay evidence of etiology in some limited circumstances in which nexus is obvious merely through lay observation. See Jandreau, 492 F.3d 1372. In this case, the Veteran has related his current back pain to carrying paint buckets up and down stairs of ship. See June 2009 VA Form 9. However, the Board does not find that the Veteran is competent to attribute low back pain to his current lumbar facet arthropathy. To the extent his low back pain has continued since service, pain is not a disability. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (the claimant was seeking service connection for a neck disability and an increased rating for a low back disability. On the issue of service connection, the Court held that pain alone without a diagnosed or identifiable underlying malady or condition did not constitute a disability for which service connection may be granted. Subsequently, the Federal Circuit dismissed the issue of service connection stating it was precluded from reviewing the factual determinations of the Board or the Court.). The contemporaneous medical evidence, including X-rays, did not show any evidence of lumbar facet arthropathy at the time of the Veteran's in-service back complaints, which undermines the existence of an immediately observable cause-and-effect relationship between the Veteran's claimed in-service injury and his current chronic low back disability. Thus, the Board finds the May 2013 examiner's opinion to be of more probative value. As such, the weight of the evidence is against establishing a connection between the Veteran's current back disability and his military service. Cardiovascular disease The Veteran reportedly had a myocardial infarction in 1999 and has been diagnosed with coronary artery disease. See September 2001 VA outpatient treatment record. The Veteran does not claim and the record does not show that he served in the Republic of Viet Nam during his Viet Nam Era service. Moreover, there were no complaints or findings of cardiovascular disease in service or within the first post service year. He does not specifically claim that cardiovascular disease was manifested in service. Absent an in-service occurrence or aggravation of a disease or injury, direct service connection is not warranted. The Board notes that the Veteran has related his current cardiovascular disease to his hypertension and his back pain. However, as neither of these conditions are service connected, secondary service connection based on a causal relationship between these conditions and the Veteran's current heart condition likewise is not warranted. The Veteran is not competent to establish a link between the post service findings of cardiovascular disease and his period of active service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 54-56. ORDER New and material evidence having not been received, the claim of entitlement to service connection for hypertension is not reopened. Service connection for anemia is denied. Service connection for a back disability is denied. Service connection for cardiovascular disease is denied. REMAND Arthritis The Veteran claims his arthritis had its onset in service. Service treatment records reflect that the Veteran was seen for complaints of lower extremity pain several times. A July 1975 entry reflects that pain began in the right foot and eventually radiated to the knee and hip. X-rays of the right hip and knee were reportedly normal and laboratory testing, including sedimentation rate was also normal. A VA examination in May 2013 reportedly found x-ray evidence of arthritis in both hips and both knees. The examiner specifically found that the Veteran's degenerative changes of the right hip were less likely as not due to, proximately the result of, or a continuation of the in-service arthralgias of the right lower extremity. However, the report does not comment on the etiology of the arthritis in the left hip or knees. An addendum to the examiner's opinion should be requested. Hearing Loss The Veteran underwent a VA audiology examination in May 2013 in conjunction with his hearing loss claim. That examination shows bilateral hearing loss disability under 38 C.F.R. § 3.385. In response to the Board's request for a medical nexus opinion, that examiner declined to give one, stating that she could not cannot provide one without resorting to mere speculation. By way of rationale, this examiner noted that the Veteran's hearing was normal at the time of his March 1974 entrance examination, there was no separation audiogram, and his left ear hearing was normal in April 2004. She then opined that it was less likely as not that his right ear hearing loss is due to military noise exposure as the audiometric configuration for the right ear is atypical of noise exposure. The opinion is internally inconsistent and needs clarification. Glaucoma As noted above, the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The record shows a current diagnosis of bilateral chronic open angle glaucoma. See generally, VA Outpatient Treatment Records. The Veteran's service medical records show in-service eye examinations and a June 1975 record of the Veteran's complaints of right eye twitching and left eye excessive watering. The Veteran has argued that his glaucoma went undiagnosed during service despite repeated eye examinations. See June 2009 VA Form 9. Thus, the evidence of record is sufficient to trigger VA's duty to provide an examination for his glaucoma claim. See 38 C.F.R. § 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Refer the claims file and a copy of this REMAND to the June 2013 VA arthritis examiner for an addendum to the opinion. The examiner should indicate whether it is at least as likely as not (50 percent probability or more) that the Veteran's current arthritis in the knees and hips had its clinical onset in service or within the first post service year or is otherwise related to active service. The examiner should note the inservice complaints of right lower extremity problems as discussed in this remand. A complete rationale, consistent with the evidence of record, should be provided for any opinion offered. 2. Afford the Veteran another VA audiologic evaluation to determine the nature and etiology of any right ear hearing loss. Audiometric testing should be included if deemed necessary. The Veteran's claims file and a copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the report of examination should note review of the claims file. For any right ear hearing loss found, the examiner should indicate whether it at least as likely as not (50 percent probability or more) had its clinical onset in service or (if sensorineural hearing loss is present) was manifested to a compensable degree within one year of service or is otherwise related to active service. A complete rationale, consistent with the evidence of record, should be provided for any opinion offered. 3. Afford the Veteran a VA ophthalmologic examination to determine the nature and etiology of his bilateral chronic open angle glaucoma. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the report of examination should note review of the claims file. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral chronic open angle glaucoma had its onset in service or is otherwise related to active service. The examiner is asked to specifically address whether the Veteran's in-service complaints of right eye twitching and left eye excessive watering suggest an in-service onset of this disability. A complete rationale, consistent with the evidence of record, should be provided for any opinion offered. 4. Thereafter, readjudicate the Veteran's claims. If any of the benefits sought on appeal remain denied, the Veteran should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs