Citation Nr: 1329449 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 07-17 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right arm disability, to include as secondary to a seizure disorder and blackouts. 2. Entitlement to service connection for a left arm disability, to include as secondary to a seizure disorder and blackouts. 3. Entitlement to service connection for a right hand disability, to include as secondary to a seizure disorder and blackouts. 4. Entitlement to service connection for a left hand disability, to include as secondary to a seizure disorder and blackouts. 5. Entitlement to service connection for a right leg disability, to include as secondary to a seizure disorder and blackouts. 6. Entitlement to service connection for a left leg disability, to include as secondary to a seizure disorder and blackouts. 7. Entitlement to service connection for a bilateral eye disability, to include as secondary to a seizure disorder and blackouts. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from June 1978 to July 1985; service from June 1978 to July 7, 1983 was honorable while service from July 8, 1983 to July 31, 1985 was dishonorable, which is a bar to disability benefits. These matters are before the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision of the Department of Veterans Affairs (VA) regional office in St. Louis, Missouri (RO). The issues on appeal were previously before the Board in January 2010 when they were remanded for additional development. In September 2011, the Board denied entitlement to service connection for a seizure disorder, for a disability manifested by blackouts, for a disability manifested by memory loss, and for a psychiatric disability, to include depression; and again remanded the issues of entitlement to service connection for headaches, a right arm disability, a right hand disability, a left hand disability, a right leg disability, a left leg disability, and a bilateral eye disability, to include as secondary to a seizure disorder and blackouts, back to the RO for nexus opinions on whether the disabilities at issue are causally related to service. Appropriate VA evaluations, with nexus opinions, were obtained in February 2013. Consequently, there has been substantial compliance with the September 2011 Board remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). A November 2012 rating decision granted service connection for migraine and tension headaches and assigned a 30 percent initial rating, effective from September 20, 2005. Consequently, the remanded issue of entitlement to service connection for headaches has been granted in full and is no longer part of the current appeal. The Veteran testified at a personal hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO in March 2008, and a transcript of the hearing is of record. FINDINGS OF FACT 1. The most probative, competent, and credible evidence of record fails to demonstrate that it is at least as likely as not that the Veteran has a right arm disability that is causally related to active service. 2. The most probative, competent, and credible evidence of record fails to demonstrate that it is at least as likely as not that the Veteran has a left arm disability that is causally related to active service. 3. The most probative, competent, and credible evidence of record fails to demonstrate that it is at least as likely as not that the Veteran has a right hand disability that is causally related to active service. 4. The most probative, competent, and credible evidence of record fails to demonstrate that it is at least as likely as not that the Veteran has a left hand disability that is causally related to active service. 5. The most probative, competent, and credible evidence of record fails to demonstrate that it is at least as likely as not that the Veteran has a right leg disability that is causally related to active service. 6. The most probative, competent, and credible evidence of record fails to demonstrate that it is at least as likely as not that the Veteran has a left leg disability that is causally related to active service. 7. The most probative, competent, and credible evidence of record fails to demonstrate that it is at least as likely as not that the Veteran has bilateral eye disability that is causally related to active service. CONCLUSIONS OF LAW 1. The Veteran does not have a right arm disability that was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.310 (2013). 2. The Veteran does not have a left arm disability that was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.310 (2013). 3. The Veteran does not have a right hand disability that was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.310 (2013). 4. The Veteran does not have a left hand disability that was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.310 (2013). 5. The Veteran does not have a right leg disability that was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.310 (2013). 6. The Veteran does not have a left leg disability that was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.310 (2013). 7. The Veteran does not have a bilateral eye disability that was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran letters in March 2006 and May 2006, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection for the disabilities at issue. In compliance with the duty to notify, the Veteran was informed in a letter later in March 2006 about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the earlier March 2006 letter, and May 2006 letter, informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The Veteran's service treatment records, relevant VA and private treatment reports, and reports of VA evaluations, with nexus opinions, are of record, with the most recent VA opinion dated in February 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinions obtained in this case are adequate, as they involve review of the claims files, relevant examination of the Veteran, and an opinion on whether the Veteran has the disabilities at issue due to service. Accordingly, the Board finds that VA's duty to assist in obtaining a VA examination or opinion with respect to the service connection issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issues decided herein. The Veteran has been given ample opportunity to present evidence and argument in support of his claims, including at his March 2008 hearing. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The VA personnel must also ask questions to fully explore the bases for each claim. At the March 2008 Board hearing, the Veteran's representative and the VLJ asked the Veteran questions at the hearing about the bases for the service connection issues on appeal. The VLJ also indicated that consideration would be undertaken based on the testimony and evidence of record as to whether an additional examination would be useful to substantiate the claim. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claims. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Analysis of the Claims The Veteran seeks service connection for disabilities of the arms, hands, legs, and eyes, to include as secondary to a seizure disorder and blackouts. He contends that these disabilities are causally related to his extensive history of boxing while in service. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In order to establish service connection for a disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). . Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2011). Additional disability resulting from the aggravation of a nonservice- connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran's service treatment records reveal that the Veteran's corrected eyesight was 20/20 in each eye in June 1978. He was admitted to the hospital ward in November 1978 with a diagnosis of rule out seizure disorder; the discharge diagnoses were rule out seizure disorder and rule out hysterical reaction. He incurred multiple lacerations of the palm and knuckle of the right hand in July 1980. According to a Physical Profile Board Proceeding in September 1984 for his seizures, he was not to be assigned to a unit where the sudden loss of consciousness would be dangerous to self or others and he was not to box until December 14, 1984. The Veteran complained in Hyland Behavioral Health Center records for April and May 2005 of poor eyesight. VA treatment records dated from June 2006 to June 2010 reveal that the Veteran complained in June 2006 of headaches, muscle pain, shooting pain down his arm, joint pain, and tingling and numbness in his thumbs. There was normal bulk and tone in his upper and lower extremities on motor testing in November 2006. The Veteran complained of arm pain in March 2007, and peripheral nerve disease was diagnosed. He complained in April 2007 of pain radiating from his neck down his arms. A two year history of bilateral arm pain was reported in January 2008. Added to the file in February 2008 were medical articles on traumatic brain injury. The Veteran testified at his March 2008 travel board hearing that the disabilities at issue were all secondary to his seizure disorder, which is due to his extensive history of boxing in service. The assessments on VA eye evaluation in April 2008 were ocular hypertension, cataracts, and refractive error. The Veteran complained on VA treatment records in July 2008 of fatigue and tingling in his extremities, which was noted to be a possible adverse reaction to medication. He also complained in July 2008 of headaches accompanied by flashes in the right eye, light sensitivity, and occasional nausea. The diagnosis on neurological evaluation in August 2008 was complex regional pain syndrome. It was noted in November 2008 that, because of the Veteran's fairly extensive boxing history, he could have dementia pugilistica. He complained in March 2009 of pain in his fingertips, which was thought to be due to arthritis. Generalized pain syndrome was diagnosed in April 2010. The impressions on VA evaluation in July 2010 were possible bilateral carpal tunnel syndrome by EMG study; previous history of seizures, resolved; blackout spells, etiology and type unspecified and unknown. The examiner opined that it would be speculative to conclude that the Veteran had seizures and blackout spells due to boxing in service, as he had not had documented seizures for over 25 years. After review of the claims files and examination of the Veteran, a VA examiner concluded in August 2011 that it was at least as likely as not that the pain pattern in the Veteran's upper and lower extremities was related to trauma in service from the Veteran's extensive history of boxing and heavy training. A VA eye evaluation was conducted in October 2011. The diagnosis was immature cataract in each eye, visually functioning adequately. The examiner opined that the cataract was less likely as not due to service or trauma from boxing because it had the appearance of an age-related cataract rather than a traumatic cataract. Refractive error and presbyopia were also opined as not related to service, including boxing. It was noted in VA treatment records for January 2013 that the Veteran would need cataract surgery in the near future. The Veteran was provided a VA orthopedic evaluation in February 2013. The examiner did not find any objective evidence of hand pathology. It was noted that the Veteran indicated that his bilateral arm and bilateral leg symptoms did not begin until 2005, approximately twenty years after service discharge. The examiner concluded that there was no evidence that the Veteran's current symptoms were related to inservice boxing. There is evidence on file both for and against the Veteran's claims for service connection. 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." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). The Board finds the October 2011 and February 2013 VA nexus opinions against the claim to be of more probative value, when considered along with the other evidence of record, than the August 2011 VA opinion in favor of the claim. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (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 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). See also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually 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 (1998). In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); see Shipwash v. Brown, 8 Vet.App. 218 (1995); Flash v. Brown, 8 Vet.App. 332 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the Veteran's claims folder); but see D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history). Although the August 2011 VA opinion finds a relationship between the boxing the Veteran did in service and his complaints of disability of the upper and lower extremities, the Board notes that the examiner did not provide a specific diagnosis. Rather, the disability was described as a "pain pattern." The Board would note that pain alone, without a diagnosed or identifiable underlying malady or condition, is not a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The Veteran's service treatment records do not reveal any complaints or abnormal clinical findings of an arm, hand, leg, or eye disability, other than a laceration of the right hand. The initial post-service diagnosis of any of the disabilities at issue was not until 2006, which is over 20 years after service discharge. Moreover, there are VA opinions on file dated in October 2011 and February 2013, which are based on a review of the record and examination of the Veteran and which each contain a rationale, against the claims for service connection for disabilities of the arms, hands, legs, and eyes. In fact, no objective evidence of hand pathology was found in February 2013. The Board would also note that, because the Veteran is not service connected for either a seizure disorder or blackouts, he cannot be granted service connection for any of the disabilities at issue as secondary to a seizure disorder or blackouts. See 38 C.F.R. § 3.310. Although the Veteran is competent to report his subjective symptoms, such as pain or numbness, he is not competent to report that he has a disability of the arms, hands, legs, or eyes due to service. The diagnosis of a specific orthopedic, neurologic, or ophthalmologic disability, as well as the determination of the etiology of the disability, are medical questions and require medical expertise. A layperson is generally not competent to provide a diagnosis or opine on the etiology of an orthopedic or neurological disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Circ. 2007). Because the preponderance of the objective and probative medical evidence of record is against the Veteran's service connection claims on appeal, the claims must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a right arm disability is denied. Entitlement to service connection for a left arm disability is denied. Entitlement to service connection for a right hand disability is denied. Entitlement to service connection for a left hand disability is denied. Entitlement to service connection for a right leg disability is denied. Entitlement to service connection for a left leg disability is denied. Entitlement to service connection for a bilateral eye disability is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs