Citation Nr: 1330085 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 10-26 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a vision disorder. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to February 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claims for service connection for a vision disorder and for hypertension. This case was previously before the Board in September 2011 and again in November 2012, and was remanded on each occasion for additional development of the record and/or to ensure due process. The case is again before the Board for appellate consideration. In its November 2012 determination, the Board also denied the Veteran's claim for service connection for erectile dysfunction. This decision, accordingly, is limited to the issues set forth on the preceding page. FINDINGS OF FACT 1. The Veteran has refractive error of the eyes, and a pterygium in the left eye which has not been shown to be related to service. 2. It is not shown that the Veteran has hypertension that is related to service. CONCLUSIONS OF LAW 1. A vision disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303(c) (2013). 2. Hypertension was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303(b), 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A letter dated in October 2007 explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also informed the appellant of disability rating and effective date criteria. He has had ample opportunity to respond and supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records and pertinent post-service treatment records have been secured. The RO arranged for VA examinations. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). A VA examination was scheduled for December 2012, but the Veteran failed to report for it. In Wood v. Derwinski, 1 Vet. App 190 (1991), the United States Court of Appeals for Veterans Claims noted that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Factual background, legal criteria and analysis The Board has reviewed all of the evidence in the appellant's claims file and in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence of record shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). Initially, the Board notes the Veteran has failed to cooperate with the VA's attempt to have him examined in order to obtain adequate opinions concerning the etiology of any current visual disorder and hypertension. As noted above, without good cause, he failed to report for the December 2012 VA examination. Accordingly, the Board will, in accordance with the provisions of 38 C.F.R. § 3.655 (2013), adjudicate the claims on the basis of the evidence of record. I. Vision disorder 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. 38 C.F.R. § 3.303(c). The service treatment records are negative for complaints or findings pertaining to an eye disability. An ophthalmoscopic examination on the separation examination in January 1972 was normal. Distant vision was 20/20, bilaterally. Private medical records disclose the Veteran was seen in October 2004. Corrected near vision was 20/30, bilaterally, and uncorrected far vision was 20/30, bilaterally. In August 2007, uncorrected near vision was 20/40, bilaterally, and uncorrected far vision was 20/30 in the right eye and 20/40 in the left eye. The Veteran was afforded a VA examination of the eyes in October 2009. No pertinent medical history was reported. Corrected visual acuity was 20/15 in each eye. There was a pterygium in the left eye. The assessment was the Veteran had best corrected visual acuity of better than 20/20 in both eyes, and no diabetic retinopathy in either eye. A VA examination of the eyes was conducted in October 2011. The Veteran's corrected visual acuity was 20/20 in each eye. A left nasal pterygium was again noted in the left eye. Following the examination, and based on a review of the claims folder and VA eye records, the assessment was the Veteran had corrected visual acuity of 20/20 in both eyes at distance and near, with no diabetic retinopathy in either eye. In an addendum later in October 2011, the examiner commented the Veteran had refractive error that was fully correctable to 20/20 in both eyes. The refractive error was more likely as not slightly variable and affected by his service-connected diabetes mellitus. The record establishes the Veteran has a correctable refractive error in both eyes. In addition, he has a pterygium in his left eye which was initially demonstrated many years after service. Service connection may not be granted for refractive error. The Board points out that the pterygium was initially shown in 2009, approximately 37 years following the Veteran's discharge from service. In addition, the Veteran's assertions that a visual disorder is related to service are not competent evidence in the matter. The Board concedes the Veteran is competent to report his symptoms. Laypersons are competent to provide opinions on some medical issues; however, the specific questions in this case, the diagnosis and etiology of a visual disability, fall outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The record demonstrates that the pterygium in the left eye was initially demonstrated many years after service, and there is no competent medical evidence linking it to service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a visual disorder. II. Hypertension Where a veteran served 90 days or more during a period of war, and hypertension becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The vascular system was evaluated as normal on the separation examination in January 1972. Blood pressure readings were 140/100 and 150/80. Private medical records show the Veteran was seen in October 2004. Blood pressure was 134/71. In September 2005, blood pressure was 148/90, and in October 2007, it was 142/80. The Veteran was examined by the VA for hypertension in October 2009. He stated he was diagnosed with it five or six years earlier, and that he was on medication. Following an examination, the diagnosis was hypertension. A VA examination for hypertension was again conducted in October 2011. The Veteran reported he was diagnosed with hypertension when he was being seen for a cold and placed on medication. The diagnosis was hypertension. The examiner commented he reviewed the claims folder, to include the service treatment records. He stated there were no references to hypertension, no screening for hypertension and no diagnosis of it in service. He further noted the Veteran stated it was diagnosed about eight years earlier. The examiner concluded it was less likely as not that the Veteran's hypertension was manifested in service, or that it was causally related to service or any incident therein. The Board concedes that elevated blood pressure was recorded when the Veteran was discharged from service. There is no further indication that he had high blood pressure for approximately 33 years following service. The Board notes the Veteran related during the October 2011 examination that hypertension had been diagnosed about eight years earlier. Clearly, this suggests that it first was demonstrated many years following his separation from service. In addition, the Veteran's assertions that hypertension is related to service are not competent evidence in the matter. The Board concedes the Veteran is competent to report his symptoms. Laypersons are competent to provide opinions on some medical issues; however, the specific questions in this case, the diagnosis and etiology of hypertension fall outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The record demonstrates that hypertension was initially demonstrated many years after service, and there is no competent medical evidence linking it to service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a visual disorder. Additional considerations The Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against these claims, that doctrine does not apply. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). ORDER Service connection for a vision disorder or for hypertension is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs