Citation Nr: 1329359	
Decision Date: 09/12/13    Archive Date: 09/20/13

DOCKET NO.  12-24 774	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, 
New York


THE ISSUES

1.  Entitlement to service connection for residuals of a 
cyst on the back.

2.  Entitlement to service connection for a heart disorder, 
to include coronary artery disease.

3.  Entitlement to service connection for a bilateral eye 
disorder, to include bilateral cataracts and glaucoma.


REPRESENTATION

Appellant represented by:	Jewish War Veterans of the 
United States


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

K. Neilson, Counsel


INTRODUCTION


The Veteran served on active duty from May 1948 to May 1952.

These matters come before the Board of Veterans' Appeals 
(Board) on appeal from an April 2011 decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
New York, New York.

On December 5, 2012, the Veteran testified at a Board video 
conference hearing before the undersigned Veterans Law 
Judge.  A transcript of the hearing is of record.  

The instant matters were previously before the Board in 
February 2013, at which time they were remanded further 
development.  After undertaking to complete the requested 
development, the agency of original jurisdiction (AOJ) 
readjudicated the Veteran's service connection claims via 
several supplemental statements of the case (SSOCs) and 
denied the claims on the merits.  The case was returned to 
the Board in August 2013.  

(The decision below addresses the Veteran's claim of service 
connection for residuals of a cyst.  The remaining claims 
are addressed in the remand that follows the Board's 
decision.)

This appeal has been advanced on the Board's docket pursuant 
to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) 
(West 2002).




FINDING OF FACT

The Veteran does not have a currently diagnosed residual 
disability resulting from an in-service cyst; the Veteran's 
complaints of pain at the cyst site are not credible.


CONCLUSION OF LAW

The Veteran does not have a residual disability resulting 
from a in-service cyst that is the result of disease or 
injury incurred in or aggravated during active military 
service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 
2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Notice and Assistance

The Veterans Claims Assistance Act of 2000 (VCAA), codified 
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & 
Supp 2012), and the pertinent implementing regulation, 
codified at 38 C.F.R. § 3.159 (2012), provide that VA will 
assist a claimant in obtaining evidence necessary to 
substantiate a claim.  They also require VA to notify the 
claimant and the claimant's representative of any 
information, and any medical or lay evidence, not previously 
provided to the Secretary that is necessary to substantiate 
the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. 
§ 3.159(b).  As part of the notice, VA is to specifically 
inform the claimant and the claimant's representative of 
which portion, if any, of the evidence is to be provided by 
the claimant and which part, if any, VA will attempt to 
obtain on behalf of the claimant.

The VCAA notice requirements apply to all five elements of a 
service connection claim.  These are: (1) veteran status; 
(2) existence of a disability; (3) a connection between a 
veteran's service and the disability; (4) degree of 
disability; and (5) effective date of the disability.  
Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Upon receiving the Veteran's claim of service connection for 
cyst residuals in December 2009 , the RO sent to him a 
letter dated in March 2010 wherein he was notified of the 
evidence required to substantiate that claim.  The letter 
advised the Veteran of the information already in VA's 
possession and the evidence that VA would obtain on his 
behalf, as well as of the evidence that he was responsible 
for providing to VA, to include any records not in the 
possession of a Federal agency.  The RO further advised the 
Veteran on the types of evidence he could submit that would 
support his claim for service connection.  The letter also 
included the notice elements required by Dingess for how VA 
determines disability ratings and effective dates.  

The Veteran has not disputed the contents of the VCAA notice 
in this case.  Further, the Board finds that the March 2010 
notice letter complies with the requirements of 38 U.S.C.A. 
§ 5103(a), and afforded the Veteran a meaningful opportunity 
to participate in the development of his claim.  Thus, the 
Board is satisfied that the duty to notify requirements 
under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were 
met.

Regarding the duty to assist, the Board is satisfied that VA 
has complied with the duty to assist requirements under 
38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c).  All available 
evidence pertaining to the Veteran's claim decided herein 
has been obtained.  The evidence includes his VA treatment 
records, a VA examination report, and lay statements from 
the Veteran, to include his December 2012 hearing testimony.  
The Board notes that the AOJ attempted to obtain the 
Veteran's service treatment records (STRs), but those 
records were determined to be fire related and unavailable.

The Board also notes that in remanding the claims in 
February 2013, the Board directed the AOJ to obtain the 
Veteran's VA treatment records dated since February 2011 and 
associate them with the claims folder.  As will be discussed 
in the remand following this decision, it appears that 
treatment records are available but were not associated with 
the claims folder.  While the Veteran's claims of service 
connection for heart and eye disorders must be remanded for 
the AOJ to associate those records with the claims folder, 
the Board finds that it may proceed with its adjudication of 
the Veteran's claim of service connection for cyst residuals 
because the Veteran has not alleged treatment for any 
residual disability related to his cyst.  Further, the 
Veteran was afforded a VA examination in connection with 
claim for the specific purpose of determining whether the 
Veteran's in-service cyst and subsequent removal resulted in 
any residual disability.  Upon examination of the Veteran, 
the examiner could identify no residual disability.  Given 
the examination report and the fact that the Veteran has not 
indicated treatment related to any disability resulting from 
his cyst/cyst removal, the Board finds that any information 
contained in the VA treatment records would not be relevant 
to this claim as the outcome of the claim turns on whether a 
present disability exists.  Thus, the failure of the AOJ to 
associate the Veteran's current treatment records with the 
claims folder is not prejudicial in this case and the Board 
finds no reason to again remand the matter solely for 
compliance with the terms of its earlier remand.  Stegall v. 
West, 11 Vet. App. 268, 271 (1998) (holding that a remand by 
the Board confers on a claimant, as a matter of law, the 
right to compliance with the remand orders unless there is a 
showing of nonprejudicial error); Sabonis v. Brown, 6 Vet. 
App. 426, 430 (1994) (remands that would only result in 
unnecessarily imposing additional burdens on VA with no 
benefit flowing to the appellant are to be avoided).

Further, in compliance with the terms of the Board's 
February 2013 remand, the Veteran was afforded a VA 
examination in connection with his claim for service 
connection for residuals of a cyst.  A review of the 
examination report reveals that the examiner reviewed the 
claims folder, considered the lay contentions of the 
Veteran, and conducted a physical examination of the Veteran 
before discussing whether the Veteran had any residual 
disability from his in service cyst and subsequent removal.  
The Board is satisfied that the examination report contains 
sufficient evidence by which to evaluate the Veteran's claim 
for service connection.  The Board thus concludes the 
Veteran was provided with an adequate medical examination 
and opinion and that the evidence developed on remand also 
complies with the terms of the Board's prior remands.  See 
Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); See Stefl 
v. Nicholson, 21 Vet. App. 120, 123 (2007) (describing 
adequacy of medical examinations); Stegall, supra.  


II.  Analysis

The law provides that service connection may be granted for 
disability resulting from an injury suffered or disease 
contracted in line of duty, or for aggravation of a 
preexisting injury suffered or disease contracted in line of 
duty, in the active military, naval, or air service.  38 
U.S.C.A. §§ 1110, 1131 (West. 2002); 38 C.F.R. §§ 3.303, 
3.304 (2013).  That an injury or disease occurred in service 
is not enough; there must be chronic disability resulting 
from that injury or disease. If there is no showing of a 
resulting chronic condition during service, then a showing 
of continuity of symptomatology after service is required to 
support a finding of chronicity. 38 C.F.R. § 3.303(b).  
Service connection may be granted for any disease diagnosed 
after discharge when all evidence, including that pertinent 
to service, establishes that the disease was incurred in 
service. 38 C.F.R. § 3.303(d).

Generally, establishing service connection requires medical 
or, in certain circumstances, lay evidence of (1) a current 
disability; (2) in-service incurrence or aggravation of a 
disease or injury; and (3) a nexus between the claimed in-
service disease or injury and the present disability.  See 
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 
Hickson v. West, 12 Vet. App. 247, 253 (1999).  

In the instant case, the Veteran is seeking service 
connection for residuals of a cyst that he alleges developed 
in service.  During his December 2012 hearing, the Veteran 
reported that while in service, he had developed a cyst on 
his backbone due to sleeping on the ground.  He stated that 
the cyst was removed within three years of being discharged 
from service.  As noted above, the Veteran's STRs are fire 
related and there is, therefore, no record of him having a 
cyst in service.  However, the Veteran is competent to 
report the existence of a cyst and subsequent removal and 
the Board will presume, for purposes of this appeal, that 
the Veteran's allegations in this regard are credible.  
Thus, the question before the Board is whether there 
currently exists any residual disability from the cyst 
and/or cyst removal.  

The Board notes that when asked during his December 2012 
hearing whether he had any residuals related to the removal 
of his cyst, to specifically include pain or scarring, the 
Veteran responded by stating: "I really couldn't tell you."  
The Veteran was also afforded a VA skin examination in March 
2013.  He reported an infected skin cyst more than 20 years 
prior, which was irrigated and drained.  The examiner noted 
that the condition had resolved and that there were no 
residuals.  The examiner specifically concluded that there 
was no evidence of a past cyst or of any scarring.  The 
Veteran's claim was readjudicated and denied based on the 
lack of any identified residuals via an April 2013 SSOC.  In 
statements received in May and June 2013, the Veteran 
alleged that he was unable to sleep on his back due to pain 
at the base of his spine and that he had constant pain where 
the cyst was removed.

At the outset, the Board notes that without a diagnosed or 
identifiable underlying malady or condition, pain alone does 
not in and of itself constitute a disability for which 
service connection may be granted.  See Sanchez-Benitez v. 
West, 13 Vet. App. 282, 285 (1999), dismissed in part and 
vacated in part on other grounds sub nom. Sanchez-Benitez v. 
Principi, 259 F.3d 1356 (Fed.Cir.2001).  However, pain that 
is a residual of an in-service disease or injury may serve 
as the basis for an award of disability compensation.  See 
Sanchez-Benitez, 259 F.3d at 1361-62 (a claim based on "pain 
alone" fails "when there is no sufficient factual showing 
that the pain derives from an in-service disease or 
injury").

The Board acknowledges the Veteran's more recent allegations 
of pain at the site of the previous cyst, but finds that 
they are not credible.  Notably, the Veteran did not 
indicate pain at the cyst site until after his claim was 
denied on the merits via the April 2013 SSOC.  The Veteran 
was specifically questioned regarding the presence of pain 
during his December 2012 hearing, but did not then state 
that he had any pain associated with the prior cyst.  Nor 
did the Veteran complain of pain during his March 2013 VA 
examination.  The Board finds the fact that the Veteran was 
specifically questioned regarding the presence of pain and 
did not indicate experiencing any and made no mention of 
pain until after his claim was denied renders his later 
assertions of pain at the former cyst site not credible and 
of no probative value.  See Cartright v. Derwinski, 2 Vet. 
App. 24, 25 (1991) (noting that personal interest may affect 
the credibility of the evidence, but the Board may not 
disregard testimony simply because a claimant stands to gain 
monetary benefits.)

The evidence also fails to support a finding that the 
Veteran has any other identified residual of his in-service 
cyst and subsequent removal.  The VA examiner conducted a 
full examination of the Veteran and found no residual 
disability, to specifically include any scar.  The Board 
emphasizes that Congress has specifically limited 
entitlement to service connection for disease or injury to 
cases where such incidents have resulted in a current 
disability.  See 38 U.S.C.A. § 1110.  Hence, because the 
evidence fails to establish that the Veteran has, at any 
point during the pendency of his claim, been diagnosed as 
having a specific disability resulting from his previous 
cyst, his claim must be denied.  See Brammer v. Derwinski, 3 
Vet. App. 223, 225 (1992).

The Board is cognizant of the fact that lay evidence can be 
competent and sufficient to establish a diagnosis of a 
condition.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 
(Fed. Cir 2007) (describing situations when lay evidence can 
be competent and sufficient to provide medical diagnosis).  
Here, however, the Veteran has not provided lay evidence of 
a currently diagnosed disability related to his cyst, other 
than to assert that he experience pain at the cyst site, 
which statements the Board has found not credible.  As such, 
the Veteran has presented no credible lay evidence of a 
currently diagnosed disability.

Accordingly, because the evidence fails to establish the 
presence of a residual disability resulting from the in-
service cyst, there is simply no basis upon which a finding 
of service connection can be made.  See Davidson, supra 
(service connection requires evidence of a current 
disability); Brammer, supra.  In reaching this conclusion, 
the Board has considered the applicability of the benefit-
of-the-doubt doctrine. However, as the preponderance of the 
evidence is against the claims, that doctrine is not helpful 
to the Veteran.  See 38 U.S.C.A. § 5107(b) (West 2002); 
Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 
C.F.R. § 3.102 (2013).

ORDER

Service connection for residuals of a cyst on the back is 
denied.


REMAND

As noted in above, in February 2013, the Veteran's claims of 
service connection for heart and eye disorders were 
remanded, in part, for the AOJ to obtain all relevant VA 
treatment records dated since February 2011 and associate 
those records with the claims folder.  A review of the 
record reveals that there exists records from the East 
Orange, New Jersey, VA Medical Center and the New York 
Health Care System dated since February 2011.  A handwritten 
note, however, indicates that records were not uploaded to 
Virtual VA due to system problems.  The Veteran's Virtual VA 
file contains no medical records and paper records were not 
associated with the claims folder on remand.  As information 
contained in these treatment records may be relevant to the 
Veteran's claims of service connection for eye and heart 
disorders, the matters must again be remanded to ensure 
compliance with terms of the Board's February 2013 remand.  
See Stegall, supra.  

As it is unclear whether the VA treatment records were made 
available to the VA examiners who examined the Veteran on 
remand, the Board concludes that after the VA treatment 
records are associated with the claims folder, the claims 
folder should be returned to those examiners for addendum 
opinions that takes into account any information contained 
in the Veteran's treatment records and also provides 
extended rationales for their conclusions that the Veteran's 
heart and eye disabilities are not related to service.



Accordingly, the case is REMANDED to the AOJ 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.  Obtain all relevant VA treatment 
records from the East Orange VAMC and 
New York HCS dated since February 2011 
and associate those documents with the 
claims file.  If these records are 
unable to uploaded to the Veteran's 
Virtual VA file for any reason, paper 
copies of the records should be 
associated with the Veteran's paper 
claims file.  

2.  After completion of the development 
requested in paragraph 1 above has been 
completed and any received records have 
been associated with the claims folder, 
the AOJ should contact the VA examiner 
who performed the VA heart examination 
in April 2013 and obtain from her an 
addendum to her examination report.  The 
Veteran's claims file, including a copy 
of this remand, must be made available 
to the examiner for review in connection 
with the clarification sought.

The examiner should be asked to review 
any treatment records obtained on remand 
and provide a statement as to whether 
the evidence changes her opinion in any 
way.  

If the examiner's opinion regarding 
nexus remains negative, the examiner 
should provide an extended rationale for 
her opinion regarding the likelihood 
that the Veteran's diagnosed myocardial 
infarction and coronary artery disease 
are related to his active military 
service.  The examiner should state 
specifically why the Veteran's lay 
evidence of heart problems two to three 
years following service, as well as the 
medical evidence first documenting heart 
related problems in 1994, are not 
sufficient to support a nexus between a 
currently diagnosed heart disability and 
service.  The examiner should include 
reference to lay and medical evidence 
contained in the claims folder, if 
appropriate, or to known medical 
principles relied upon in forming his 
opinion.

(If the April 2013 examiner is no longer 
available, the AOJ should arrange for 
the Veteran's claims folder to be 
reviewed by another VA clinician with 
the appropriate expertise to provide an 
opinion as to whether it is at least as 
likely as not that any diagnosed heart 
disorder, including coronary artery 
disease status post myocardial 
infarction with 3 stent placements, is 
related to any period of military 
service to include taking of a 
stimulant-type pill, which opinion must 
specifically discuss the Veteran's lay 
evidence of heart problems 2 to 3 years 
after service, as well as the medical 
evidence of record documenting that such 
first appeared to begin in 1994, and 
state why this evidence does or does not 
support a finding of service 
connection.)

3.  After completion of the development 
requested in paragraph 1 above has been 
completed and any received records have 
been associated with the claims folder, 
the AOJ should contact the VA examiner 
who performed the VA eye examination in 
April 2013 and obtain from him an 
addendum to his examination report.  The 
Veteran's claims file, including a copy 
of this remand, must be made available 
to the examiner for review in connection 
with the clarification sought.

The examiner should be asked to review 
any treatment records obtained on remand 
and provide a statement as to whether 
the evidence changes his opinion in any 
way.  

If the examiner's opinion regarding 
nexus remains negative, the examiner 
should provide an extended rationale for 
his opinion regarding the likelihood 
that the Veteran's diagnosed bilateral 
cataracts and advanced pigmentary 
glaucoma are related to his active 
military service.  The examiner should 
discuss the Veteran's lay evidence of 
complaints eye problems while in 
service, without any formal treatment, 
and state why such assertions are not 
sufficient to support a nexus between a 
currently diagnosed eye disability and 
service.  The examiner should include 
reference to lay and medical evidence 
contained in the claims folder, if 
appropriate, or to known medical 
principles relied upon in forming his 
opinion.

(If the April 2013 examiner is no longer 
available, the AOJ should arrange for 
the Veteran's claims folder to be 
reviewed by another VA clinician with 
the appropriate expertise to provide an 
opinion as to whether it is at least as 
likely as not that the Veteran's 
bilateral cataracts and advanced 
pigmentary glaucoma began in or were 
caused by the Veteran's active service, 
to include being a radar technician in 
service and having to look at a radar 
screen.)

4.  After undertaking any other 
development deemed appropriate, the AOJ 
should re-adjudicate the issue remaining 
on appeal.  If the benefit sought is not 
granted, the Veteran should be furnished 
with an SSOC and afforded an opportunity 
to respond before the record is returned 
to the Board for further review.  

Thereafter, the case should be returned to the Board for 
further appellate review.  By this remand, the Board 
intimates no opinion as to any final outcome warranted. No 
action is required of the Veteran until he is notified.  The 
Veteran has the right to submit additional evidence and 
argument on the matter the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board 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. 2013).



______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs