Citation Nr: 1333701 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 09-34 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for retinopathy. 3. Entitlement to service connection for cataracts. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from June 1965 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2011, the Veteran and his wife testified at a hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is of record. The case was remanded in May 2012 to afford the Veteran VA examinations. Except for the issue being remanded, review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also remanded the issues of entitlement to service connection for left ear hearing loss; diabetes mellitus type 2; peripheral neuropathy of the bilateral upper and bilateral lower extremities; erectile dysfunction; and hepatitis C. In July 2013 and September 2013 rating decisions, the Appeals Management Center granted service connection for those issues. As the Veteran has not expressed disagreement with the effective date and/or disability ratings assigned to those disabilities, those issues are no longer before the Board. The appeal is advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a) (2) (West 2002). The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. A current diagnosis of diabetic retinopathy is not of record. 2. Cataracts were not present during service and the evidence does not establish that the Veteran's cataracts are related to his military service. CONCLUSIONS OF LAW 1. Retinopathy was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. Cataracts were not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist 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 (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 representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must inform the claimant of any information and 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. Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was notified in a letter dated in November 2007 regarding the type of evidence necessary to establish his claims. He was instructed how to establish service connection. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The letter notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, VA obtained the Veteran's service treatment records, personnel records, post-service medical records, and also secured examinations in furtherance of his claims. Pertinent VA examinations were obtained in June 2013 and August 2013; an addendum opinion for one of the June 2013 examinations was obtained in July 2013. 38 C.F.R. § 3.159(c) (4). The VA examinations obtained in this case are sufficient, as the examiner conducted complete physical evaluations, recorded all findings considered relevant under the applicable law and regulations, and offered well-supported opinions based on consideration of the full history of the disorders. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c) (4). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the Veterans Law Judge (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. Here, during the Board hearing the VLJ noted the elements that were lacking to substantiate the Veteran's claims. The Veteran was assisted at the hearing by an accredited representative who with the VLJ asked questions to ascertain the Veteran's disabilities' history and etiology. The record does not reflect that pertinent evidence that would substantiate the claim was identified by the Veteran or the representative. 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 his claims. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. 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). VA's duty to assist and duty to notify are unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328 (1997); Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Retinopathy The Veteran contends that he has retinopathy that is secondary to his service-connected diabetes mellitus type 2. Review of the Veteran's service treatment records shows no treatment for, or diagnosis of, retinopathy. His June 1965 enlistment and March 1969 release from active duty examinations both revealed normal eyes, pupils, ocular motility and ophthalmoscopic examination. Although both examinations reveal defective visual acuity, they do not show retinopathy. Indeed, the Veteran has not contended that retinopathy is directly related to his military service. Post-service eye examinations in May 1992, July 1995, June 1998, November 1999 and January 2002 do not reflect evidence of diabetic retinopathy. A November 2005 treatment record shows that the Veteran had trace right eye retinopathy. Records in May 2007 and June 2007 reveal that the Veteran had been diagnosed with minimal retinopathy by a private specialist and very mild background retinopathy, respectively. However, eye treatment records in August 2009 and December 2010 all show that Veteran did not have diabetic retinopathy. A record dated in August 2012 shows that the impression was non-insulin dependent diabetes mellitus "S/DR." The Veteran was afforded a VA examination in June 2013. The examiner reported that "Today, he shows no signs of diabetic eye disease." Retinopathy was not diagnosed. The Veteran was afforded another VA examination in August 2013 with the same examiner. The examiner reported that the Veteran "still does not have any diabetic eye disease." The examiner also reported that the Veteran had not been "diagnosed with diabetic eye disease in the last four years he has been seen at the North Texas VA system (by five different eye doctors)." No retinopathy was diagnosed. The examiner remarked that the Veteran "has no diabetic eye disease." They also remarked that there was "no diabetic retinopathy or any other diabetic eye condition at this time or in the last four years according to [VA] eye clinic visits." After review of the evidence, the Board finds that service connection for retinopathy is not warranted. Although service connection is in effect for diabetes mellitus type 2, and the Veteran contends that he has retinopathy due to such disability, the evidence does not support such a finding. In this case, while eye examinations in November 2005, May 2007 and June 2007-prior to the filing of the Veteran's claim in October 2007-show a diagnosis of retinopathy, eye examinations since the date of claim and VA examinations indicate that the Veteran does not have retinopathy. The overall evidence of record weighs against a finding that the Veteran currently has retinopathy. The preponderance of the evidence weighs against a finding that the Veteran has had a confirmed diagnosis of retinopathy during this appeal. In finding that the evidence does not support a confirmed diagnosis of retinopathy, the Board has considered United States Court of Appeals for Veterans Claims (Court) recent case of Romanowsky v. Shinseki, No. 11-37272 (Vet. App. July 10, 2013) which held that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. As applied to the Veteran's appeal, the June 2007 record showing very minimal background retinopathy was just a few months prior to the Veteran's October 2007 claim. That the subsequent eye examinations do not show a confirmed diagnosis of retinopathy, however, weighs against a finding that the Veteran actually has retinopathy. The June 2013 and August 2013 VA examiners indicated reviewing the Veteran's claims file, which included the diagnoses of retinopathy, yet still opined that the Veteran did not have retinopathy after conducting thorough examinations. The Board also acknowledges the August 2012 eye treatment record showing the impression of "S/DR." While "DR" is a medical abbreviation for diabetic retinopathy, the VA examiner who provided the June 2013 and August 2013 compensation and pension examinations reviewed the Veteran's treatment records, which included the August 2012 record, yet still opined that the Veteran did not have a diagnosis of retinopathy in the last four years. The Board is unable to substitute its own medical judgment for that of the VA examiner. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In light of the majority of the records showing no retinopathy, in addition to two separate examinations this year failing to show retinopathy, the Board concludes that the evidence is not supportive of a finding that the Veteran actually has retinopathy. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; Degmetich at 1332 (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In other words, the evidence must show that, at some point during the appeal period, the veteran has the disability for which benefits are being claimed. Brammer at 225 (in which the Court held that, in the absence of proof of a present disability, there can be no valid claim); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (stipulating that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). Here, for the reasons set forth above, the Board concludes that the evidence weighs against a finding of a confirmed diagnosis of retinopathy at any time during the appeal period. The Board acknowledges the Veteran's reports of having retinopathy. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the diagnosis of retinopathy falls outside the realm of common knowledge of a lay person. Compare Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), with Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer). The Veteran's own assertions as to diagnosis have no probative value. Without competent and credible evidence of current retinopathy, service connection for retinopathy is not warranted. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for retinopathy. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for retinopathy is denied. See 38 U.S.C.A §5107. Cataracts The Veteran contends that he has cataracts that are due to his work as an electrician without protective eye wear in service. His personnel records show that he was an electrician's mate. A review of the Veteran's service treatment records shows no treatment for, or diagnosis of, cataracts. As noted above, his June 1965 enlistment and March 1969 release from active duty examinations both revealed normal eyes, pupils, ocular motility and ophthalmoscopic examination. There is no indication in his service treatment records that he incurred an event, injury or disease to his eyes. Post-service records beginning in December 2002 show ongoing diagnoses of cataracts, but they do not contain any medical opinions relating them to his military service, to include his duties as an electrician. At his June 2013 VA examination, the Veteran reported that he had a cataract in the right eye until 2003 and in the left eye until 2011. He reported that since then, he had implants. Following examination, the examiner opined that the Veteran did not have cataracts. An addendum opinion was provided in July 2013. The examiner opined that after reviewing the claims file, it could be determined that most likely, the Veteran had cataracts that he had prior to 2011 and 2006 were age related and not made worse by his time in the military. The examiner explained that he had nuclear sclerotic cataracts and those were nearly exclusively age related. An additional examination was provided to the Veteran in August 2013. The examiner reported that the Veteran had age related cataracts removed in 2003 and 2011 and that he recently had a posterior vitreous detachment in the left eye that was also age related. Based on a review of the evidence, the Board finds that service connection for cataracts is not warranted. Although the evidence establishes that the Veteran had diagnosed cataracts in the post-service period, it does not show that they were related to his military service. The only medical opinion of record, that of the VA examiner, shows that the Veteran's cataracts are not related to his military service. Rather, the examiner opined that the Veteran's cataracts were age related. The VA examiner's opinions are uncontradicted. None of the Veteran's treatment records for his cataracts show that they were related to his military service. No medical professional has provided any opinion indicating that the Veteran's cataracts are related to his in-service duties as an electrician's mate. The Veteran's service treatment records fail to show the incurrence of an in-service event, injury or disease to his eyes. Even if the Veteran did not wear eye protection in service, the evidence still does not show that his cataracts are related to his military service. The earliest evidence of cataracts is in 2002, over three decades after the Veteran was discharged from service. The Court has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board where it found that a claimant to account for the lengthy time period after service for which there was no clinical documentation of low back condition). Thus, the lack of any evidence of cataract complaints, symptoms, or findings for over three decades between the period of active service and the earliest evidence of a diagnosis of cataracts is itself evidence which tends to show that cataracts did not have their onset in service or for many years thereafter. The claims folder contains no competent evidence of cataracts being associated with the Veteran's active duty. Without competent evidence of an association between cataracts and his active duty, service connection for cataracts is not warranted. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the etiology of cataracts falls outside the realm of common knowledge of a lay person. See Kahana at 435; Jandreau at 1377 n.4. The Veteran's own assertions as to etiology have no probative value. Without competent and credible evidence of an association between cataracts and the Veteran's active duty, service connection for cataracts is not warranted. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for cataracts. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for cataracts is denied. See 38 U.S.C.A § 5107. ORDER Entitlement to service connection for retinopathy is denied. Entitlement to service connection for cataracts is denied. REMAND Any disability that is proximately due to or the result of a service-connected disease or injury is considered service connected, and when thus established, this secondary condition is considered a part of the original condition. 38 C.F.R. § 3.310(a). Additionally, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). Regrettably, another remand is necessary for the issue of service connection for hypertension. The Veteran contends that his hypertension is secondary to his service-connected diabetes mellitus type 2. The August 2013 VA examiner opined that the Veteran's hypertension was "not as likely as not due to, caused by diabetes mellitus or otherwise incurred in military service." However, the examiner did not provide any opinion regarding whether the Veteran's service-connected diabetes mellitus type 2 aggravated the hypertension beyond the natural progress of the disease (hypertension). Remand is necessary to obtain an addendum opinion from the August 2013 examiner. Accordingly, the issue of entitlement to service connection for hypertension is REMANDED for the following action: (The appeal is advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Obtain an addendum medical opinion from the August 2013 VA examiner (or, if unavailable, from a medical professional with appropriate expertise). The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. The examiner is requested to review the record and offer an opinion as to whether the Veteran's hypertension is aggravated (permanently worsened beyond normal progression) by the service-connected diabetes mellitus type 2. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 2. Readjudicate the issue remaining on appeal. If the benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. Then, return the case to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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. ______________________________________________ J. MACIEROWSKI KIRBY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs