Citation Nr: 1328246 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 10-10 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for residuals of a nose fracture, claimed as nose/breathing problems. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for an eye disability. 4. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from August 1961 to August 1963 with additional subsequent periods of active duty for training (ACDUTRA) with the Army Reserves in August 1964 and from June 1965 to July 1965. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's attempt to reopen a claim of service connection for fractured nose, and denied service connection for posttraumatic stress disorder (PTSD), bilateral hearing loss, and myopic astigmatism. The Veteran testified before a Veterans Law Judge in December 2010. A transcript of the hearing is of record. That Veterans Law Judge has since retired from the Board. In a September 2011 letter, the Veteran indicated that he wanted another Board hearing. In October 2011, the Board remanded this case in order to schedule a new hearing. Accordingly, he was scheduled for a hearing on December 8, 2011. The Veteran failed to report for this hearing and provided no explanation for his failure to report. Additionally, on the April 2012 Informal Hearing Presentation, the Veteran's representative noted that all attempts had been futile to reach the Veteran to obtain a reason for failing to appear to his hearing, and determine whether the Veteran still wanted a Board hearing. His hearing request, therefore, is deemed withdrawn. See 38 C.F.R. § 20.704(d)(2012). In May 2012, the Board reopened the issue of entitlement to service connection for residuals of a nose fracture and remanded the remaining issues for further development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The competent and credible evidence does not show that the Veteran has residuals of a nose fracture related to his military service. 2. The Veteran has been diagnosed with adjustment disorder. The competent and credible evidence does not show that the Veteran's adjustment disorder is related to his military service. 3. The competent and credible evidence does not show that the Veteran has an eye disability related to his military service. CONCLUSIONS OF LAW 1. Residuals of a nose fracture were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. Adjustment disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 3. An eye disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (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; 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). Here, the Veteran was sent a letter in January 2009 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the 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. 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). With regard to the Veteran's acquired psychiatric disability claim, the service treatment records are silent as to any complaints or treatment for adjustment disorder or any psychiatric complaints. Moreover, the post-service evidence does not indicate any diagnosis, complaints, or treatment for adjustment disorder until several decades following separation. As explained below, the Veteran's statements regarding an in-service trauma are not deemed credible. For all of 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, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a December 2010 hearing before the a Veterans Law Judge. 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. As noted in the introduction, pursuant to the Board's October 2011 remand, the Veteran was scheduled for a hearing on December 8, 2011. In compliance with the Board's May 2012 remand, VA obtained additional recent VA treatment records and associated them with the claims folder and obtained additional service records related to the Veteran's service in the Army Reserves. VA also provided the Veteran with medical examinations in May 2012 and June 2012. These examiners reviewed the objective evidence of record, documented the Veteran's current complaints, and performed thorough clinical evaluations, then offered opinions, in a separate addendum in the case of the eye claim, as to the nature of the claimed disabilities, accompanied by a rationale. Therefore, these examinations are adequate for VA purposes. Thus VA has complied with the October 2011 and May 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the hearing the Veterans Law Judge identified the issues, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to the onset and etiology of the claimed disabilities. Ultimately the claim was remanded for medical examinations. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with these duties; they have not identified any prejudice in the conduct of the Board hearing. 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). Service Connection - Generally Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. The term "active military service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Thus, with respect to the Veteran's Army Reserves service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing inactive duty training (IDT). 38 U.S.C.A. §§ 101(24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304; see also Brooks v. Brown, 5 Vet. App. 484, 487 (1993) (noting that service connection is generally not merited when a disability incurred on IDT results from a disease process). Direct service connection requires 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). Service connection presupposes a current diagnosis of the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); see also McLain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of the claim). Nose Disability The Veteran has argued that he has breathing problems due to being hit in the nose during service. The Veteran service treatment records do show a contusion of the nose in March 1963 after being hit by a fellow service member. The record shows that the Veteran was diagnosed with traumatic deviated septum in May 2007. See VA treatment records. The Veteran then underwent septoplasty in June 2007, approximately 18 months prior to filing his claim. According to the June 2012 VA examiner, this surgery was a success and the Veteran currently has no nose disability: the nasal septum is straight and there are no residuals of a nose injury. Moreover, the examiner noted that the Veteran reported good results from the surgery including good airways and no problems whatsoever. Additionally, the Veteran reported that the symptoms of his asthma (which he reportedly had since childhood) had decreased following surgery. As such, the current disability requirement is not met with regard to residuals of a nose injury. Absent a finding of a current disability, service connection is not warranted. Thus, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a nose disability and the appeal must be denied. Acquired Psychiatric Disability In January 2009, the Veteran filed a claim of service connection for posttraumatic stress disorder. In Clemons v. Shinseki, the Court found that an appellant's claim is presumed to be based on his symptoms of mental illness and not limited to a specific diagnosis. 23 Vet. App. 1, 6 (2009). As such, the Board has considered whether service connection is warranted for any diagnosed acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). The record does not contain a diagnosis of posttraumatic stress disorder (PTSD). In March 2011, the Veteran was diagnosed with an adjustment disorder. Thus, the Veteran has a current diagnosis of an acquired psychiatric disability. The Veteran's service treatment records do not reflect complaints of or treatment for any acquired psychiatric disability. At the time of his June 1963 separation examination, no psychiatric abnormality was noted. In the accompanying Report of Medical History, the Veteran indicated a history of nervous trouble. Specifically, he stated that he was "nervous during childhood. [He had] not been so troubled since." Thus, the record does not show an in-service onset of this disability. Instead, the Veteran has argued that his acquired psychiatric disability was related to witnessing the rest of his outfit die in Vietnam. The Veteran is competent to report on the circumstances of his service and the Board has considered whether his lay evidence of this incident is credible. In a January 2009 stressor statement, the Veteran reported that he was supposed to service in Vietnam, but "when we were about to land my outfit was wiped out. I was fortunate enough to be in the same plane as my company's doctor who I served with and was commanded not to land. Ours was the only plane in the outfit saved." In his September 2009 Notice of Disagreement, the Veteran reported that this incident occurred in June 1962. He again related his current psychiatric problems to witnessing his company being wiped out. In support of his assertions, the Veteran submitted a copy of his DD-214, stating that the highlighted portion showed his service in the Republic of Vietnam. The highlighted portion reads, "Trans to USAR Control Gp (Ann Tng) XIX USA Corps," which indicates that the Veteran was transferred to the Army Reserves, not that he served in Vietnam. At his December 2010 hearing, the Veteran reported that this incident occurred in July 1963. The Veteran's service personnel records show that he served in Germany from February 1962 to August 1963 and was assigned to the 581st Medical Company. At the time of his March 2011 VA mental health treatment, the Veteran reported that he was originally meant to be deployed to Vietnam, but due to the incident described above, he was rerouted to Germany to serve. This suggests that the incident occurred in February 1962. The Veteran's service record does not reflect service in Vietnam. Instead, his foreign service is shown to have been in Germany from February 1962 to July 1963. His reserve service is listed as taking place in Arkansas. Additional searches of his service personnel records likewise reveal no evidence of service in Vietnam. Ultimately, the Veteran's lay statements regarding this incident are found not credible. See Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence."); see also Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that in weighing an applicant's credibility, the Board may consider any evidence of interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, and desire for monetary gain). Throughout his various reiterations of this incident, the Veteran has oscillated between stating that this incident occurred prior to his service in Germany and that it occurred after his service in Germany, when his enlistment term was nearly completed. Additionally, the Board finds this account to be inherently implausible as the Veteran has not satisfactorily explained why a plane bound for Vietnam would be rerouted to Germany after coming under enemy fire or, if it made multiple stops, why his service record does not reflect such a lengthy detour. Given the inherent implausibility of the Veteran's account and his inconsistent recollection of the details, the Board finds the Veteran's lay account of this incident to be not credible. For these reasons and bases, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disability, including adjustment disorder. Thus, the appeal must be denied. Eye Disability During the appellate period, the Veteran has been diagnosed with presbyopia and astigmatism, which are refractive errors of the eye. Refractive errors of the eyes are not diseases or injuries within the meaning of the applicable legislation. See 38 C.F.R. §§ 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Refractive errors, as opposed to diseases, cannot be service-connected because they are not diseases or injuries under the law; however, if superimposed injury or disease occurred, the resultant disability might be service-connected. Id. The Veteran has argued that he has eye problems due to being hit in the face during service. His service treatment records show that he was hit on the left side of the nose and left eyebrow in March 1963. While no injury to his eye was noted at that time, the proximity of this injury to his left eye is sufficient to suggest a possible in-service injury to that eye. Thus, the question at hand is whether the in-service incident resulted in a disability beyond refractive errors of the eye, which are not diseases under the law, that may be service connected. Given the nature of refractive errors, the Veteran is not competent to provide lay evidence regarding this complex medical question. In an April 2013 addendum opinion, the May 2012 VA examiner found that the Veteran's hypertropia with presbyopia and astigmatism were related to aging and not the Veteran's in-service nasal contusion. Moreover, they were not made worse by the Veteran's service activities. The record does not contain a positive medical opinion showing a disability due to this superimposed injury. Therefore, service connection is not available for the Veteran's hypertropia with presbyopia and astigmatism. Additionally, the Veteran has been diagnosed with bilateral cataracts. See April 2012 VA treatment records; May 2012 VA examination. Cataracts are not refractive errors of the eye and therefore satisfy the current disability requirement. In his December 1960 Report of Medical History, the Veteran reported a history of eye trouble. Specifically, he reported occasional eye strain. In December 1961, the Veteran sought eye treatment due to trouble seeing the board in class. A visual acuity check found the Veteran's eyesight to be 20/20 bilaterally. A January 1962 ophthalmologic consultation confirmed these measurements. In his June 1963 Report of Medical History, the Veteran again reported a history of eye trouble. The examiner noted that the Veteran has slight refractive error and the Veteran thought that he had eye trouble because he experienced occasional headaches. At the time of his June 1963 separation examination, no eye abnormality was noted. The remaining question is whether the Veteran's current cataracts are causally linked to his reported in-service eye problems. To this end, the May 2012 VA examiner noted that the Veteran's cataracts were age-related. This examiner considered the Veteran's statements of blurry vision following his injury in 1963, but determined that this was the result of a previously undiagnosed astigmatism, which was corrected with eyeglasses. There is no positive medical nexus opinion of record. To the extent that that the Veteran believes that his cataracts are due to his military service, the Board acknowledges that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, the question of etiology is complicated by the presence of multiple refractive errors, which, as noted above, are not disabilities for VA purposes. While the record shows that the Veteran's military occupational specialty was Medical Specialist, there is no indication that he possesses the necessary ophthalmologic expertise to differentiate between these refractive errors and his cataracts. Moreover, given the expertise in this regard of the May 2012 VA ophthalmologist, his opinion regarding this issue is found to be more probative. Based on the above reasons and bases, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for an eye disability. Thus, the appeal must be denied. ORDER Service connection for residuals of a nose fracture, claimed as nose/breathing problems, is denied. Service connection for an acquired psychiatric disorder is denied. Service connection for an eye disability is denied. REMAND The May 2012 VA examiner opined that the Veteran's bilateral hearing loss was less likely than not due to his military service, noting the normal audiometric results at the time of his separation and the documented post-service occupational and recreational noise exposure, despite the Veteran's denial of any additional post-service noise exposure at the time of the examination. This opinion, however, does not address the Veteran's contention that his hearing loss is related to noise exposure during his later reserve period. See December 2010 hearing transcript, March 2011 Statement. Specifically, he has reported exposure to Howitzers without hearing protection during this service. The Veteran's service records show that he had ACDUTRA with the Army Reserves in August 1964 and from June 1965 to July 1965. He is competent to provide lay evidence regarding the nature and circumstances of his service, including the type of noises to which he was exposed. The examiner is asked to provide an addendum opinion that reflects consideration of the Veteran's noise exposure during his ACDUTRA service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Refer the Veteran's claims folder to the May 2012 examiner or, if she is unavailable, to another suitably qualified VA examiner for the purpose of obtaining an addendum opinion. Specifically, the VA examiner should answer the following question: Is it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's current hearing loss is attributable to his exposure to the noise of Howitzers during his periods of active duty for training with the Army Reserves in August 1964 and from June 1965 to July 1965? The claims folder, including this remand, must be sent to the examiner for review. The examiner must provide a rationale for any opinion reached. If the examiner is unable to provide an opinion without resort to speculation, he or she must provide reasons as to why this is so; and state whether the inability is due to the limits of scientific or medical knowledge or whether there is additional evidence that would permit the needed opinion to be provided. 2. Thereafter readjudicate the claim in light of any additional evidence obtained. If the benefit sought is not granted, issue a supplemental statement of the case and give the Veteran and his representative opportunity to respond before the record is returned to the Board. 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs