Citation Nr: 1327293	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  09-49 965	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to service connection for a low back disorder.

2.  Entitlement to service connection for an eye disorder, including as secondary to service-connected Type II Diabetes Mellitus and/or herbicide exposure.


REPRESENTATION

Veteran represented by:	American Red Cross


ATTORNEY FOR THE BOARD

C. Kedem, Counsel



INTRODUCTION

The Veteran served on active duty in the military from May 1968 to May 1970, including in the Republic of Vietnam from October 25, 1968, to October 24, 1969, and from December 1990 to May 1991.

This appeal to the Board of Veterans' Appeals (Board) is from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim for service connection for a low back disorder, specifically, for lumbar spondylosis with degenerative disc disease, and from a December 2008 rating decision also denying his claim of entitlement to service connection for a bilateral eye condition.

In July 2012, the Board remanded these claims to the RO via the Appeals Management Center (AMC) for further development - including especially obtaining all outstanding evaluation and treatment or other relevant records, both from during and since the Veteran's service, and medical opinions concerning the etiologies of these claimed conditions, particularly insofar as whether they are related or attributable to his service, either directly, presumptively, or secondarily by way of a service-connected disability such as his Type II Diabetes Mellitus.  There was compliance with the Board's remand directives, certainly substantial compliance, in turn allowing the Board to proceed with its adjudication of these claims.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall v. West, 11 Vet. App. 268, 271 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002).



FINDINGS OF FACT

1.  The most persuasive medical and other evidence disassociates all current low back disability from the Veteran's active military service.  Although there is mention of relevant injury during his service (an acute low back strain), it did not result in chronic residual disability, instead, was acute and transitory and resolved well prior to his discharge.  It equally is not shown he had arthritis within one year of his discharge from service, certainly not to the required minimum compensable degree of at least 10-percent disabling, or that he had any additional impairment involving his low back for many ensuing years.

2.  He does not suffer from an eye disability other than congenital or developmental errors of refraction.


CONCLUSIONS OF LAW

1.  A chronic low back disorder was not incurred in or aggravated by his service and may not be presumed to have been.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 

2.  He also does not have any service connectable eye disability, and it is not shown he has additional eye disability from aggravation during his service of his congenital or developmental refractive error by superimposed disease or injury.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310, 4.9 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

As provided by the VCAA, VA has duties to notify and assist Veterans in substantiating claims for VA benefits upon receipt of a complete or substantially complete application.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  More specifically, VA has a duty to notify the claimant of:  (1) the information and evidence needed to substantiate the claim; (2) the information and evidence that VA will obtain; and (3) the information and evidence he is expected to provide.  38 U.S.C.A. §§ 5102, 5103(a); 38 C.F.R. § 3.159(b).  See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

Ideally, this notice should precede the initial adjudication of the claim.  See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  However, both the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) and the U. S. Court of Appeals for Veterans Claims (Court/CAVC) have clarified that, even when notice is not provided prior to initially adjudicating a claim or, if provided, was inadequate or incomplete, VA need only provide all necessary notice, give the Veteran opportunity to submit additional evidence and/or argument in response, and then readjudicate the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the essential fairness of the adjudication, as a whole, is unaffected because he is still provided meaningful opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) (holding that an SOC or SSOC can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC).  As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication.  See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U. S. Supreme Court made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on an individual case-by-case basis.  Moreover, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim.

In this particular case, VCAA notice letters were sent in July and September 2008 (the former regarding the low back claim and the latter regarding the eye claim), prior to adjudicating these claims in the September and December 2008 decisions at issue, so in the preferred sequence and in compliance with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) in substantive content.  The letters duly apprised the Veteran of the information and evidence not then of record that was necessary to substantiate these claims and of the information and evidence that VA would obtain versus the information and evidence he instead was expected to provide.

With regards to the duty to assist him with his claims, the Board is also satisfied VA has made the required efforts to obtain relevant records and evidence.  Specifically, the information and evidence that has been obtained and associated with the claims file for consideration includes his service treatment records (STRs), service personnel records (SPRs), Social Security Administration (SSA) records, VA treatment records, private medical records, VA examination reports, and his personal lay statements.  As already alluded to, one of the Board's reasons for remanding these claims in July 2012 was to obtain all outstanding evaluation and treatment and other records, both from during his service and in the years since.  And all outstanding records that are obtainable have been obtained.

He additionally was provided comprehensive VA spine and eye examinations, including for medical nexus opinions ascertaining the nature and extent of his disabilities and their etiologies - especially in terms of the alleged relationship with his military service, either directly, presumptively, or secondarily by way of a service-connected disability.  The opinions resultantly obtained were based on the entire body of relevant evidence, including his contentions.  The examination findings were fully explained, so the VA examinations and opinions provided are adequate for the purpose of determining entitlement to service connection.  Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. pp. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes and ensure the adequacy of any examination provided or opinion obtained).  See also 38 C.F.R. §§ 3.327(a), 4.2, collectively indicating it is incumbent on the VA rater to return an inadequate examination for correction).

Further, the Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review of his claims that is obtainable.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Therefore, the Board finds that there is no reason to believe that any possible outstanding records would contain information relating to his claim.  In view of this, the Board finds that VA has fulfilled its duties to notify and assist him in the development of these claims.  Adjudication of the claims at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudicing him.  Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  He has received all essential notice, has had a meaningful opportunity to participate effectively in the development of his claims, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).

Standard of Review

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record.  38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in Veteran's favor).  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Statutes, Regulations and Precedent Cases

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required to support the claim.  38 C.F.R. § 3.303(b).  Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

This notion of continuity of symptomatology under 38 C.F.R. § 3.303(b), however, only applies to a condition that was first noted during service and that is one of the conditions that VA considers a "chronic disease" according to 38 C.F.R. § 3.309(a).  It therefore applies to the Veteran's low back claim because his disability has an arthritic component, and arthritis is a chronic disease under 38 C.F.R. § 3.309(a).  See generally Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

On the other hand, service connection is not generally permitted for refractive error of the eye since it is not considered to be a disease or injury within the meaning of applicable legislation providing compensation benefits.  38 C.F.R. § 3.303(c), 4.9.  Refractive error of the eyes includes myopia, presbyopia, and astigmatism.  Id.; VA Manual M21-MR1, Part III, Subpart IV, Chapter 4, Section B, Para. 10(d).  Absent superimposed disease or injury, service connection may not be allowed for a congenital or developmental defect of the eyes, even if visual acuity decreased in service, as this is not a disease or an injury within the meaning of applicable legislation relating to service connection.  Parker v. Derwinski, 1 Vet. App. 522 (1991); McNeely v. Principi, 3 Vet. App. 357, 364 (1992).

Thus, in the absence of some event of trauma, refractive error is a constitutional or development abnormality for which compensation benefits may not be authorized.  38 C.F.R. §§ 3.303(c), 4.9 (congenital or developmental defects, refractive error of the eye, personality disorders, and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation); see also VAOPGCPREC 
82-90.

After studying 38 C.F.R. § 3.303(c), VA's General Counsel issued the interpretation, binding on the Board, that service connection may be granted for diseases of congenital, developmental, or familial origin if the evidence as a whole shows that manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations.  The VA General Counsel also has interpreted that a congenital defect can be subject to superimposed disease or injury, and if superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability.  VAOPGCPREC 82-90.  Support for this proposition is found in the Rating Schedule since it includes sickle cell anemia, which, although a familial disease, was included for rating purposes in the Rating Schedule.

Establishing entitlement to direct service connection therefore generally requires having:  (1) competent and credible evidence confirming the existence of the claimed disability or, at the very least, showing the Veteran has had it at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the presently-claimed disability, which is the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The Court has held that "Congress specifically limits entitlement for 
service-connected disease or injury to cases where such incidents have resulted in actual disability.  In the absence of proof of a present disability there necessarily can be no valid claim.   Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

As already alluded to, arthritis is considered to be a chronic disease, per se, and therefore will be presumed to have been incurred in service if manifested to a minimum compensable degree of at least 10-percent disabling within the initial post-service year.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Also, a Veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975 (Vietnam era), is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309.  For the purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram.  38 C.F.R. § 3.307(a)(6).  The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era.  "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. § 3.307.  The presumption requires that a Veteran actually have stepped foot on the landmass of Vietnam or served in the inland waterways to be considered as having had service in country.  Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97.

If he had this type of service, then the following diseases are deemed presumptively associated with his presumed herbicide exposure:  chloracne or other acneform diseases consistent with chloracne, Type 2 Diabetes, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).


These diseases shall be service connected if a Veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied.  38 U.S.C.A. §§ 501(a), 1116; 38 C.F.R. § 3.309(e).

The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service.  38 C.F.R. § 3.307(a)(6)(ii).

The Secretary of VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 41,442-41,449, and 61 Fed. Reg. 57,586 -57,589 (1996).

Notwithstanding these presumptive provisions, a claimant is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998).  See, too, McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which, instead, concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation).


Service connection is additionally permissible for disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993).  This regulation has been interpreted to permit granting service connection not only for disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (which since has resulted in the adding of subpart (b) to § 3.310).  To prevail on the issue of secondary service causation, the record must show:  (1) evidence of current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995).

Competency of evidence differs from its credibility and ultimate weight.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify).  A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses.  See Layno, 6 Vet. App. 465.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 
1 Vet. App. 190, 193 (1991).  In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

Generally, the degree of probative value that may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file, although this is not determinative of an opinion's probative value.  Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually had examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

Medical evidence that is speculative, general or inconclusive in nature cannot support a claim.  Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996).  A physician's statement framed in terms such as "may" or "could" is not probative because this is just as well tantamount to saying "may not" or "could not".  See Warren v. Brown, 6 Vet. App. 4, 6 (1993).

A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the Veteran).  Indeed, as the Court further explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility.  But recognizing this, it is equally true the Board may reject a medical opinion based on an inaccurate factual premise.  Reonal v. Brown, 5 Vet. App. 458, 461 (1993).

In deciding these claims, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in detail, certainly not exhaustive detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  Gonzales v. West, 218 F.3d 1378, 
1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Discussion

Low Back Disorder

On enlistment in May 1968, the Veteran denied all medical problems other than a history of mumps.  The corresponding medical examination report indicated that all bodily systems to include the spine were normal.  

The Veteran contends he has a low back disorder as a result of his military service.  Specifically, he contends that he has lumbar spondylosis and degenerative disc disease as a result of a low back injury he sustained in Vietnam in December 1968 when he fell off a large rock or cliff in full combat gear.  He further alleges that he has had recurrent low back problems since, to include in a May 2008 written statement.  His STRs show he was hospitalized for two days for a back disorder, diagnosed as an acute low back strain.  No bony abnormality was seen on X-ray.  

He was confined to battalion quarters for 48 hours on discharge.  It was further recommended that he undertake a progressive increase in activity, as determined by the battalion aid station.

Just two months later, in February 1969, the Veteran completed a report of medical history form in which he denied "back trouble of any kind."  A February 1969 medical examination report indicated that his spine was normal. 

In a March 1970 report of medical history completed by the Veteran, he denied "back trouble of any kind."  A March 1970 medical examination report indicated that his spine was normal.  

In a January 1975 report of medical history, the Veteran denied recurrent back pain.  

On April 1981 periodic examination, the spine was assessed as normal.  On November 1984 medical examination, the spine was found to be normal.  In an August 1989 report of medical history completed by the Veteran, he expressly denied recurrent back pain.  An August 1989 medical examination report reflects a normal spine.  

In April 1991 and November 1994 reports of medical history, the Veteran marked recurrent back pain.  The corresponding medical examination reports, however, indicated that his spine was normal.  

A progress note dated in November 2003 indicated normal musculature.  The posture was erect, and there were no postural abnormalities.  The spine and extremities were aligned.   

A September 2004 private medical report from PWP, M.D., the Veteran's longtime physician, indicated the Veteran had a history of degenerative arthritis with chronic low back pain and that he had difficulty standing or walking for any significant period of time due to his back problems.

A December 2007 radiologic study of the low back revealed early disc degeneration.  

In May 2008, the Veteran sought private medical treatment for his low back.  He indicated that he had been experiencing low back pain during the previous year.  He reported the lumbar strain that he had sustained in service.  The evaluating physician diagnosed, in pertinent part, probable lumbosacral degenerative disc disease.

A May 2008 magnetic resonance imaging (MRI) showed disc disease at L4-5 and L3-4.  The examiner diagnosed degenerative disc disease at L3-4 and L4-5.

In July 2008, the Veteran had a VA spine examination for compensation purposes.  The examiner indicated the claims file was not available for review.  On examination, the Veteran reported subjective complaints of recurrent episodes of back pain over the years and that the condition had worsened significantly several years earlier.  He indicated that he had retired from his position as a truck driver in 2003 due to medical problems entirely unrelated to his back.  He indicated that his back problems did not prevent him from performing his job duties.  The examiner noted that a May 2008 X-ray of the lumbar spine had disclosed narrowing of the L4-5 and L5-S1 intervertebral disc spaces with anterior osteophyte formation at the L3, L4, and L5 vertebral bodies.  The diagnostic impression was lumbar spondylosis with degenerative disc disease.

In April 2009, the Veteran had another VA spine examination.  This time, however, the claims file was available to and reviewed by the examiner.  The examiner indicated that an X-ray had revealed significant degenerative disc disease and degenerative changes and that the diagnostic impression was lumbar spondylosis and degenerative disc disease.  But regarding etiology, the examiner determined the current low back disability was unrelated to the lumbar strain in service.  He explained that there were no documented back problems until the past few years and that low back strain did not cause, accelerate, or predispose to the development of degenerative changes.  The degenerative changes, instead, were age related according to that VA examiner.

The Board's July 2012 remand of this claim was partly to obtain an addendum opinion, so supplemental comment regarding this determinative issue of causation.

In March 2013, a VA compensation examiner consequently reviewed the claims file including the prior VA medical examination reports detailed above.  The examiner opined that the Veteran's current low back disability was unrelated to his service, so including to the injury (strain) he had sustained in service.  The examiner emphasized that, despite the Veteran's contentions of back pain ever since that lumbar strain in the late 1960s, he had denied back pain until 1991, more than 20 years after that lumbar strain in service.  Aside from that, the examiner also pointed out that in 1991 and 1994 the Veteran's spine was assessed as normal.  The examiner explained that strain-type injuries were soft-tissue injuries that would be expected to heal.  He reiterated that low back strain did not cause, accelerate, or predispose to the development of degenerative changes in the back, which in the Veteran's case were likely instead age related.  Thus, the examiner concluded it was unlikely the Veteran's current low back disability was related to the December 1968 injury in service.

Primarily for the same reasons that VA examiner cited, the Board does not find the Veteran's assertions of continuous low back pain (continuity of symptomatology) since his December 1968 injury in service to be credible, even if competent.  Ultimately, then, his lay assertions are not probative and supportive of his claim.  See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007) (The Board must make an express credibility finding regarding lay evidence.).  The Board recognizes that he very well may have had some low back pain in the immediate aftermath of that injury in service.  However, as he repeatedly denied having any relevant symptoms, including chronic or persistent pain, for many ensuing years after that December 1968 injury, beginning at least in February 1969, there is not the required suggestion of chronic (permanent) residual disability.  See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (VA may use silence in the STRs as evidence contradictory to the Veteran's assertions if the STRs appear to be complete, at least in substantial part, and the injury, disease, or symptoms involved ordinarily would have been recorded had they occurred); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998) (in adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence); Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001) (recognizing the Board's inherent fact-finding ability).

It was not until far more recently that the Veteran began dating his low back pain back to that injury in service.  Numerous times in the interim he gave no such indication and even expressly denied having any then current symptoms of note.  So his lay testimony concerning the history of his symptoms such as his pain has been very inconsistent, which in turn tends to undermine his credibility.  This is especially true when realizing that many of the times he denied having any relevant symptoms like pain were in the course of being evaluated and treated, so he had opportunity to discuss or reveal symptoms he perhaps had not on prior occasions.  But he never did, that is, not until long after his service had ended.  See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements); Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later).


The post-service medical evidence does not reflect complaints related to a low back disability for many years.  Such a relatively long period of time after discharge from service and the initial reported symptoms related to a low back disability tends to refute the notion that the Veteran's current low back symptoms date back to his service.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim, just not the only or sole factor); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where the Veteran had failed to account for lengthy time period between service and initial symptoms of disability).

In Kahana and Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc), the Veterans Court (CAVC) and Federal Circuit Court both cautioned that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

Here, the Veteran has been diagnosed with both low back degenerative disc disease as well as spondylosis, an arthritic condition.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1780 (31st ed. 2007) ("spondylosis" means "degenerative spinal changes due to osteoarthritis.").  While degenerative disc disease is not an arthritic condition, the Board will examine his extant low back disability globally.  As such, the Board finds that it may analyze the claim under 38 C.F.R. § 3.303(b) since, as mentioned, arthritis is defined as a chronic disease under 38 C.F.R. § 3.309(a).  Walker, supra; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

The Veteran no doubt sincerely believes his current back problems are attributable to the lumbar strain in service.  But the Board does not find his assertions probative in this regard, for although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, the etiology of degenerative disc disease and spondylosis falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).

The September 2004 report from Dr. PWP is not probative of the claim, either, since the determinative issue is whether the Veteran's current low back degenerative disc disease with spondylosis originated during or as a result of his service or in the first post-service year, whether symptoms of the disability were continuous since service, or whether the disability is otherwise related to service.  Dr. PWP simply furnished a statement as to the current condition of the Veteran's back in 2004, some 35 years after he sustained the low back injury in service.

The July 2008 VA medical examination report is not probative, as it contains no opinion as to etiology, which is the central issue in this matter.  Indeed, as mentioned, medical evidence that is speculative, general, or inconclusive in nature cannot support a claim.  Obert, 5 Vet. App. at 33.

But similarly, the April 2009 VA opinion is not probative as well, as even that examiner failed to consider all of the relevant evidence of record - including complaints of low back pain beginning in 1991.  See Nieves-Rodriguez, 22 Vet. App. at 302-04 (noting that a central issue in determining the probative value of an examination is whether the examiner was informed of the relevant facts in rendering a medical opinion).

All of these deficiencies prompted the Board to remand this claim in July 2012 for still further medical comment.


The March 2013 VA medical opinion obtained on remand is highly probative, as it was based on a comprehensive review of the relevant evidence of record, and most importantly the examination report contains discussion of the underlying rationale for the opinion, which, as explained, is where most of the probative value of the opinion is derived.  Id.; see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).

According to the March 2013 VA examiner a chronic low back disability was not incurred in service, as the type of injury suffered by the Veteran (an acute strain) was of the sort that tended to heal.  Moreover, the March 2013 examiner found that the low back disability had its onset years after service separation, citing the several intervening instances when the Veteran had specifically denied having any relevant symptoms or disability.  Thus, service connection for the Veteran's claimed low back disability cannot be granted based on continuity of symptomatology or presumptively based on incurrence to a degree of 10 percent of more within the first post-service year.  38 C.F.R. §§ 3.303(b); 3.307, 3.309(a).  Finally, the examiner explained that the Veteran's current low back disability was not otherwise related to service.  He indicated that strain-type injuries were muscular in nature and did not cause degenerative disc disease or spondylosis or even predispose someone to later developing these other conditions.  The examiner was of the opinion, instead, that the Veteran's low back disability was a natural result of the aging process.  Thus, the Board finds that the Veteran's presently diagnosed low back disability is not otherwise related to his service.  38 C.F.R. § 3.303(d).

For these reasons and bases, the preponderance of the evidence is against this claim, and the benefit-of-the-doubt rule does not apply in such situations.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany, supra.  Accordingly, this claim must be denied.


Eyes

The Veteran contends he has an eye condition that was caused by his 
service-connected Type II Diabetes Mellitus or that, alternatively, like the diabetes, is the result of his presumed exposure to Agent Orange in Vietnam.  See, e.g., his September 2008 claim and December 2009 formal appeal.  His STRs are unremarkable for any eye disorders for which service connection is available, and he does not contend that a current eye disorder is directly related to his service.  His Type II Diabetes Mellitus is itself service connected on the basis of his presumed exposure to Agent Orange in Vietnam, so his claim for an eye condition is both derivative of that exposure and the consequent diabetes inasmuch as he is alleging the eye condition is a residual or complication of the diabetes.

An April 2004 private medical notation reveals the Veteran denied then recent reduction in vision, double vision, blurred vision, or excessive tearing.  

A January 2008 examination report reveals that his chief complaint was of diabetes mellitus.  A review of systems indicated that his eyes were normal.  There was no then recent reduction in vision, double vision, blurred vision, or excessive tearing.  A May 2008 examination concerning his diabetes mellitus again indicated that his eyes were normal.  There was no then recent reduction in vision, double vision, blurred vision, or excessive tearing.  

In support of this contention and chain link of causation, the Veteran submitted an eye examination report dated in May 2008 showing abnormal lenses.  The evaluating ophthalmologist determined the Veteran might have bilateral trace nuclear sclerosis or cataracts.  The report also shows uncorrected distant visual acuity of 20/20 for the right eye and 20/30 for the left eye, and this evaluating ophthalmologist noted that the Veteran's "vision seems ok." 

In April 2009, a VA examiner found that the Veteran had uncorrected distant visual acuity of 20/20 and near visual acuity of J12 for the right eye, correcting to J1; he had uncorrected distant visual acuity of 20/40 and near visual acuity of J12 for the left eye, correcting to 20/25 and J1.  Dilated slit lamp examination showed nuclear sclerotic lenses bilaterally.  During that examination, the Veteran complained of blurred near vision.  The examination report shows diagnoses of presbyopia, or farsightedness caused by advancing years or old age, see Dorland's Illustrated Medical Dictionary 904, 1543 (28th ed. 1994), and diabetes mellitus without retinopathy.  

In January 2010, the Veteran expressly denied vision problems, and his eyes were found to be normal.  Diabetes mellitus without complications was diagnosed, but a yearly eye exam was suggested.

VA treatment records show he has been regularly monitored for diabetic retinopathy for many years.  However, no diabetic retinopathy has been found on numerous diabetic retinopathy surveillance consultations - including as recently as July 2012.

The Board's July 2012 remand also concerned this claim and, in part, was to obtain additional medical comment concerning this claim.

The Veteran resultantly had a VA eye examination for compensation purposes in March 2013.  The examiner indicated the Veteran had no eye condition other than congenital or developmental errors of refraction.  Moreover, the examiner indicated the Veteran had never suffered from such a condition.  As such, the examiner offered no diagnosis of an eye disorder.  Uncorrected right distance vision was 20/40 or better.  Left uncorrected distance vision was 20/40 or better.  Uncorrected near right vision was 20/100.  Uncorrected near left vision was 20/100.  Corrected distance vision was 20/40 or better bilaterally.  Corrected near vision was 20/40 or better bilaterally.  The pupils were round and reactive to light.  The Veteran did not have a corneal irregularity that resulted in severe irregular astigmatism.  There was no diplopia.  The fundus was normal bilaterally.  

There was no visual field defect.  He did not suffer from lacrimal gland or lid disorders, ptosis, conjunctivitis or other conjunctival conditions , corneal conditions, cataract or other lens conditions, inflammatory eye conditions or injuries, glaucoma, optic neuropathy or other disc conditions, retinal conditions, neurologic eye conditions, tumors and neoplasms, or "other eye conditions."  The diagnosis was diabetes without retinopathy.

As explained, refractive error of the eye is not a disease or injury within the meaning of applicable legislation providing compensation benefits.  38 C.F.R. § 3.303(c), 4.9.  Refractive error of the eyes includes myopia, presbyopia, and astigmatism.  To the extent the Veteran suffers from any of these refractive errors, they do not constitute disabilities for VA benefits purposes, and service connection for such conditions is precluded as a matter of law.  Id.

The question, therefore, is whether he suffers from any eye disability for which service connection is available.  The record is clear in that he does not suffer from diabetic retinopathy; doctors repeatedly have determined he does not have this disease as a complication of his diabetes.  The record is equivocal as to whether he suffers from bilateral trace nuclear sclerosis and/or cataracts.  This assessment was rendered in May 2008.  However, evaluations of the eyes both immediately before and shortly thereafter did not reflect such diagnoses.  A physician's statement framed in terms such as "may" or "could" is not probative.  Warren, 6 Vet. App. at 6.  Thus, the uncertainty of the May 2008 diagnosis coupled with the lack of evidence of these conditions at any other time leads the Board to find that he does not have these conditions.  See Jefferson, 271 F.3d at 1076 (recognizing the Board's inherent fact-finding ability).  And even if accepting for the sake of argument that he does or at least has at some point since the filing of his claim, there has not been the required attribution of this condition to his military service in any way, so his claim still would have to be denied.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

As the evidence stands, the Veteran has no disability of either eye for which service connection can be granted.  A present disability is a necessary, if not sufficient, condition for the granting of service connection.  The most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

To reiterate, Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in actual disability.  Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  A current disability means a disability shown by competent and credible evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

Because proof of current (service connectable) eye disability is not shown is this case, service connection for the claimed eye disability is not warranted under any theory of entitlement, and it is denied.  38 C.F.R. §§ 303, 3.307, 3.309, 3.310.

In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102, but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision.



ORDER

The claim of entitlement to service connection for a low back disorder is denied.

The claim of entitlement to service connection for an eye disability also is denied.



____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs