Citation Nr: 1334277 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-17 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a heart disability. 2. Entitlement to service connection for bilateral eye disability. 3. Entitlement to service connection for a chronic headache disability, to include migraines. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from November 1975 to May 1980. The Veteran also had service in the Navy Reserve. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The record reveals that the Veteran requested a Board hearing at his local VA office on his VA Form 9. The Veteran was scheduled for a Board hearing on October 6, 2010; however, he did not appear for the hearing and he has not provided good cause for his absence. Therefore, the Veteran's hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). Thus, the Board may proceed with appellate review. The claim pertaining to a heart disability has been developed for appellate review as an issue of service connection. In a July 2010 statement, and in the September 2013 informal hearing presentation (IHP), the Veteran, through his representative, raised the claim of compensation benefits under the provisions of 38 C.F.R. § 1151 for heart damage due to April 16, 2008 treatment at the VA Medical Center (VAMC) in Detroit, Michigan. Given the separate and distinct provisions for service connection and section 1151 claims, the Board will adjudicate the service connection claim in the decision below and refer the claim, as described below, to the Agency of Original Jurisdiction (AOJ) for appropriate action as it has not been developed for appellate review. The issue of entitlement to compensation under 38 U.S.C.A. § 1151 for a heart disability caused by VA treatment on April 16, 2008 has been raised by the record, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for a chronic headache disability, to include migraines, 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 Veteran has not been shown to have bilateral eye disability that is attributable to his active service. 2. The Veteran has not been shown to have a heart disability that is attributable to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral eye disability have not been met. 38 U.S.C.A. §§ 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 4.9 (2013). 2. The criteria for service connection for a heart disability have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and a duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the Veteran 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 Veteran is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this 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. Id. at 486. Notice was provided to the Veteran, in June 2008, for his claims of entitlement to service connection for migraine headaches, bilateral eye disability and a heart disability. This notice was provided prior to the initial adjudication of any of the claims. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, such as recent medical reports showing findings, diagnosis and treatment for each of the claimed disabilities. He was also informed that VA would schedule a VA examination if appropriate, obtain VA medical records and obtain service treatment records (STRs). The letter notified the Veteran he should provide information on his current disabilities, information on any injuries, events or diseases that began during service and the relationship between his disabilities and any events, injuries or diseases during service. The letter also provided general notice regarding how disability ratings are assigned and how effective dates are assigned. As the content of the notice letter fully complied with the VCAA requirements, the Board concludes that VA satisfied its duties to notify the Veteran. VA satisfied its duty to assist the Veteran under the VCAA by gathering relevant records. VA has a duty to assist in obtaining the Veteran's service medical records, VA medical records and other relevant records. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c). The Veteran's STRs and VA medical records are in the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claims. VA has not provided a medical examination to the Veteran for his heart disability or for his bilateral eye disability, as the standard for VA to provide an examination was not satisfied for either claim. 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 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.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, 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). The Veteran has not specified any event, injury, or disease in service which is related to his bilateral eye disability. On the application form, received by VA in March 2008, the Veteran stated his eye disease began in 2003 but he did not provide an explanation as to an event, injury or disease that occurred in service related to his eye disease. In the September 2013 IHP, the representative stated the Veteran contends his bilateral eye disability began in service, but did provide any additional argument or explanation. The notice of disagreement, received by VA in October 2009, and VA Form 9, received by VA in April 2010; also do not provide an explanation of any event, injury or disease in service that is related to the Veteran's bilateral eye disease. The Veteran's representative argues, in a statement dated in July 2010, that the Veteran should be afforded a VA examination but the representative does not specify an in-service event, injury or disease related to the Veteran's bilateral eye disability. Additionally, the Veteran's STRs do not contain references to treatment for any eye problems. The record does not reflect evidence of an in-service incurrence of the Veteran's bilateral eye disability or of a nexus between the condition and service. Thus, an examination for bilateral eye disability is not required. See Id. The Veteran has not specified any event, injury, or disease in service which is related to his heart disability. On the March 2008 application form, the Veteran stated his heart disease began in 2001 but he did not specify an event, injury or disease in service that is related to his heart disease. The notice of disagreement, received by VA in October 2009, and VA Form 9, received by VA in April 2010, do not provide an explanation of any event, injury or disease in service that is related to the Veteran's heart disability. The Veteran's representative argues, in a statement dated July 2010, that the Veteran should be afforded a VA examination but the representative does not specify an in service event, injury or disease related to the Veteran's condition. Additionally, the Veteran's STRs do not contain references for heart related treatment. The record does not reflect evidence of in-service incurrence of the Veteran's heart disability or of a nexus between the heart condition and service. Thus, an examination for heart disability is not required. See Id. In sum, VA met its obligations to notify and assist the Veteran by providing the Veteran with proper notice and obtaining the available records. VA does not have a duty to provide a VA examination to the Veteran as the Veteran has not met the necessary standard with respect to his claims for service connection for his bilateral eye disability or heart disability. Thus, VA satisfied its duties to notify and assist the Veteran with his claims. II. Merits of the Claim Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131 (West 2002); 38 C.F.R. § 3.303 (2013). To establish service connection on a direct incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004). In service connection claims consideration must be given to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a). In addition, certain chronic diseases, such as arteriosclerosis and cardiovascular-renal disease, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). A. Bilateral Eye Disease The Veteran satisfies the existence of the present disability standard with regard to bilateral eye disability. An Optometry Consult Note, dated November 2008, listed the Veteran's treatment history for certain conditions, including cataract and glaucoma suspect. However, the Optometry Consult Note also stated low risk glaucoma suspect, essentially ruled out at this time; but it appears the Veteran had been treated for this historically. Additionally, the Optometry Consult Note indicated blepharitis, mild hypertension retinopathy in both eyes, hyperopia, and presbyopia. The Board notes that hyperopia and presbyopia are refractive errors which are considered congenital or development conditions and are not a disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9 (2013). The requirement for a current disability is satisfied if the disability is present at any point proximate to the claim, during the claim, or to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Thus, the Board finds the Veteran does have a current bilateral eye disability as he has been treated for other eye disabilities, as described above. The evidence of record does not support a finding that the Veteran sustained in-service incurrence or aggravation of a disease or injury related to his bilateral eye disability during active service. The enlistment examination in November 1975, routine examination in December 1975, and separation examination in April 1980, do not note any issue with the Veteran's eyes and his vision is recorded as 20/20, bilaterally. Examinations conducted in July1980, September 1981, and August 1983 do not note any issue with his eyes, and his vision is recorded as 20/20, bilaterally. A report of a July 1985 examination for active duty for training records 20/20 vision in the right eye and 20/30 vision in the left eye, but does not note any issue with either eye. The complete absence of reference to treatment of any eye issue within the STRs, is afforded considerable probative weight unfavorable to the Veteran's claim of entitlement. The STRs do contain records for a variety of other ailments including headaches, acne, an infection of the upper lip, swallowing pain, swelling in the right forearm, rash, strain in groin, and repair of Achilles tendon, among others. Additionally, as described above, the Veteran on his claim application, received by VA in March 2008, states that the eye disease began in 2003, while the Veteran's representative, in the September 2013 IHP, argues the bilateral eye disability began during service. However, neither the Veteran nor his representative has articulated incurrence or aggravation of an injury or disease with respect to an eye disability during active service. Therefore, based on the aforementioned reasons, the element of the incurrence of an in-service injury or disease is not met for a bilateral eye disability. The Veteran failed to satisfy the element of in-service incurrence or aggravation of an injury or disease pertinent to an eye disability. Thus, he cannot establish a nexus between any present bilateral eye disability and in-service incurrence or aggravation of a relevant injury or disease. B. Heart Disability The Veteran satisfies the existence of the present disability standard with regard to a heart disability. An April 2008 Echocardiograph Report stated "mild to moderately dilated LV, mild left ventricular hypertrophy, moderate to severe systolic dysfunction." The report also noted grade I diastolic dysfunction. A June 2008 VA medical record noted the Veteran was being treated for cardiomyopathy (idiopathic), and asymptomatic frequent PVC's (premature ventricular contractions) and a history of exercise induced non sustained VT (ventricular tachycardia). A July 2008 VA medical record noted an abnormal MUGA (multi-gated angiogram) scan with mild left ventricular dysfunction. A VA computerized medical problem list, contained in a VA consult medical records request in October 2008, noted arrhythmia and other specified cardiac dysrhythmias. Thus, the Board finds the Veteran does have current heart disability as the record reflects that he suffers from number of heart related issues. While the evidence shows that the Veteran has the claimed disability, it was not shown as a chronic disease during service or within one year of separation from service. Therefore, service connection is not warranted for a chronic disease shown in service or on the basis of presumptive service connection for chronic diseases. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.309(a). The salient question is whether the Veteran has a heart disability that is etiologically related to an in-service injury or disease. The evidence of record does not support a finding that the Veteran sustained in-service incurrence or aggravation of a disease or injury with respect to a heart disability. Specifically, the Veteran's STRs do not contain any evidence of treatment for any heart problems. The enlistment examination in November 1975 and the separation examination in April 1980, do not note any issue with respect to the heart or cardiovascular system. Examinations conducted in July1980, September 1981, August 1983, and July 1985 do not reflect any heart related issues. The STRs do not note any medical care received for any heart issue. The STRs do contain records for a variety of other ailments as described previously. The Veteran's representative, in a July 2010 statement and in the September 2013 IHP, noted a blood pressure reading of 124/40 was recorded on July 9, 1978. The blood pressure recorded on July 9, 1978 was actually 124/70 and the 70 appears to have been corrected from 74. It is not precisely clear what meaning the Veteran's representative has attached to this record. However, the blood pressure reading was taken in the context of the Veteran's complaints of headaches and the same entry also notes there was no history of high blood pressure in his record. The absence of reference to any heart related treatment within the STRs, is therefore afforded considerable probative weight unfavorable to the Veteran's claim of entitlement. In addition, as described above, the Veteran on his claim application, received by VA in March 2008, stated that his heart disease began in 2001. Furthermore, the Veteran has not articulated an in-service event, injury or disease related to his heart disability. Therefore, based on the aforementioned reasons, the element of incurrence of an in-service injury or disease is not met for a heart disability. The Veteran failed to satisfy the element of in-service incurrence or aggravation of an injury or disease pertinent to a heart disability. Thus, he cannot establish a nexus between any present heart disability and an in-service injury or disease. In sum, the Veteran was able to show he has a present disability for both claims of bilateral eye disability and a heart disability, but not the elements of a relevant in-service event, injury or disease, or nexus, for either claim. Based on the reasons and bases discussed, as the preponderance of the evidence is against the claims, the benefit of the doubt rule is inapplicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for bilateral eye disability or for a heart disability. ORDER Entitlement to service connection for bilateral eye disability is denied. Entitlement to service connection for heart disability is denied. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim for service connection for a chronic headache disability, to include migraines. See 38 C.F.R. § 19.9 (2012). In April 2009, the Veteran was afforded a VA examination in connection with his claim for service connection for migraine headaches. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examiner stated that the pertinent evidence was a July 9, 1978 treatment record which noted a headache was possibly due to tension and was treated with aspirin and fiorinal. However, after reviewing the STRs, the Board finds the Veteran complained of headaches on multiple occasions during service, and not just on the one occasion referenced by the VA examiner. The Veteran complained of headaches in July 1978, as noted by the April 2009 examiner, but also complained of headaches in February 1978. One February 1978 record noted the headaches occurred when the Veteran was depressed or upset, that the headaches had existed since about age 15 or 16, and the headaches were sometimes so severe that the Veteran could not sleep. Additionally, in a September 1981 report of medical history, completed by the Veteran, the box for frequent and severe headaches is affirmatively checked. These additional records are not mentioned as pertinent evidence by the April 2009 examiner. Thus, the April 2009 VA examination is of little evidentiary value because the probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Furthermore, the Veteran, on his VA Form 9, dated in April 2010, stated that the physical examination was not detailed, there was no review of his medical history nor did the examiner talk in detail with him. Thus, the Board concludes that the April 2009 VA examination is inadequate to adjudicate the headache issue on appeal, and thus, a remand is necessary. Finally, as the Veteran's claim is being remanded for other matters, the Board concludes updated VA treatment records should be obtained and associated with the record. The record indicates that the Veteran has received treatment at the VAMC in Detroit, Michigan, and updated treatment records since November 2008, should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all relevant VA treatment records from Detroit, Michigan VAMC and any associated outpatient clinic records, dated since November 2008, and associate them with the claims folder. All efforts to obtain such records must be documented in the record. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of any chronic headache disability that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The entire claims file should be made available for review, to include a complete copy of this remand, and the examination report should reflect that such review occurred. The examiner is requested to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has a chronic headache disability, to include migraines, that is related to active service or any incident of service. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. The examiner must provide a complete rationale for any opinion expressed. 3. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 4. Finally, after undertaking any other development deemed appropriate, readjudicate the issue of entitlement to service connection for a chronic headache disability, to include migraines. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. 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 claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs