Citation Nr: 1335226 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-16 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a low back disorder, to include as secondary to service-connected disease or injury. 2. Entitlement to service connection for a left eye disorder. 3. Entitlement to service connection for post operative residuals of left brow cutaneous horn. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from February 1998 to July 1998, January 2002 to December 2002, and March 2003 to August 2003. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a September 2006 rating decision of the VA Regional Office in Roanoke, Virginia, that among other things, denied entitlement to service connection for bilateral hearing loss, an eye disorder, to include post surgical scar, and a low back disorder. The Veteran was afforded a hearing in May 2010 in Washington, DC before a Veterans Law Judge who subsequently retired from the Board. The transcript is of record. The case was remanded for further development by Board decision in July 2010. VA laws and regulations require that the Veterans Law Judge who conducts a hearing must also participate in the final determination of the claim. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2013). Since the Veterans Law Judge who convened the 2010 hearing is no longer available, the Veteran was offered the opportunity to appear for another hearing. The appellant responded affirmatively and a hearing was scheduled in March 2013. However, in a February 2013 letter, he wrote to advise that he no longer wanted a hearing. As such, the hearing request is withdrawn. The Board will consider the testimony and any evidence presented at the May 2010 proceeding. By rating action dated in April 2012, other issues previously on appeal of service connection for posttraumatic stress disorder, a right shoulder disability, a left knee disorder, and tinnitus were granted. Service connection for a right knee disorder was established by rating decision in August 2012. These are full grants of those benefits sought on appeal and they are no longer for appellate consideration. A May 2013 Board decision denied service connection for bilateral hearing loss disability. As such, this matter is no longer for appellate consideration. FINDINGS OF FACT 1. Low back complaints during service did not result in a chronic disability, and the competent evidence of record shows that a low back disorder is not at least as likely as not related to service. 2. The Veteran entered service with a left eye refractive error; there was no superimposed left eye disease or trauma during service. 3. Left eye refractive error is not a disability within the meaning of applicable regulations providing for service connection. 4. A cutaneous horn was excised from the Veteran's left eyebrow in service and he has residuals thereof that include incomplete loss of the left eyebrow with scarring. CONCLUSIONS OF LAW 1. A low back disorder was not incurred in or aggravated by service, lumbar arthritis may not be presumed to have been so incurred, and a low back disorder is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). 2. A left eye disorder, to include a refractive error, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. Residuals of left eye cutaneous horn excision were incurred in service. 38 U.S.C.A. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance regarding the Veteran's claims of entitlement to service connection for a left eye disorder, including post operative scar, and for a low back disorder. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in October 2005, March 2006 and July 2010 of the information and evidence needed to substantiate and complete the claims. The claims were most recently readjudicated in a July 2013 supplemental statement of the case. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims and affording VA examinations. The Veteran was scheduled for a second hearing before a Member of the Board but he canceled his appearance. Pursuant to the Board's most recent remand, he was scheduled for VA examinations in July 2013 but the appellant cancelled these appointments and has not rescheduled. The Board finds no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). As such, the claims are ready to be considered on the merits. Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is defined as doubt that exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. 1. Entitlement to service connection for a low back disorder, to include as secondary to service-connected disease or injury. Factual Background The Veteran's service treatment records do not reflect complaints of treatment for the low back. On examination in July 2003 prior to discharge from active duty, the appellant indicated, among other things, that he had lower back pain. The examining official did not offer any comment pertaining to the low back. No service discharge physical examination findings are of record. A claim of service connection for disabilities that included a low back disorder was received in September 2005. In support of the claim, J. DeMayo, M.D., wrote in June 2005 that the Veteran had been a patient of his for many years and that since his tour of duty he had had numerous medical problem, including low back pain. The physician related that he had seen the appellant on numerous occasions for these conditions that were not present prior to military service. The Veteran presented testimony on personal hearing in May 2010 to the effect that as an infantry soldier, he had gone on numerous forced marches while carrying gear packs weighing over 60 pounds. He stated that he developed low back pain from this duty and had continued to experience chronic low back pain since service. At an August 2010 VA orthopedic examination the appellant reported a history of low back pain since carrying heavy equipment and running in-service. He stated that his symptoms were progressively worsening with daily radiating pain and flare-ups. The Veteran was noted to work as a Federal Marshal and to wear a 40 pound vest on a regular basis. Following a physical examination the assessment was chronic lumbar strain. The examiner opined, however, that the disorder was less likely than not related to service. The examiner noted that although the Veteran listed back pain at service discharge, no specifics were provided by his private physician following service. Further, the examiner noted that an X-ray of the spine was normal, and no significant limitation of motion was found on examination. It was added that his occupation as a Federal Marshal could have also contributed to low back pain/strain. In April 2012, the Veteran's representative pointed out that as service connection had been established for bilateral knee disability, the question of whether a low back disorder was secondary to or had been aggravated by the service connected knee disorders was also before the Board. VA is required to consider all issues reasonably raised by a veteran's statements and evidence. See EF v. Derwinski, 1 Vet.App. 324, 326 (1991). Pursuant to the Board's May 2013 remand, the appellant was scheduled for VA examination between June and August 2013, but he cancelled each examination. Legal Analysis As reported above, the Veteran's service treatment record do not reflect that he was treated for low back complaints during service. It is significant, however, that on examination in July 2003 at service discharge, he indicated that he had lower back pain. No assessment of his complaint appears to have been performed at that time. Post service, his private physician, Dr. DeMayo, stated broadly that the appellant had been treated on numerous occasions for complaints that included back pain that he did not have prior to service. However, the physician did not provide any contemporaneous records of treatment to support this assertion. The post service record does not contain any actual evidence of treatment for the low back except for Dr. DeMayo's summary statement that is inadequate to establish a basis for service connection. The Veteran did not assist VA in its attempts to secure private treatment records from Dr. DeMayo. Moreover, when the Veteran was afforded VA examination of the low back in August 2010, the examiner reviewed the record and pointed out the deficiencies precluding a finding that a current low back disability was related to service, including the fact that the private physician provided no specifics regarding back treatment after service, a normal spine X-ray, and possible employment-related physical demands as a Federal Marshal leading to back pain. As such, the Board finds that continuity of low back symptomatology deriving from service is not sufficiently demonstrated. See 38 C.F.R. § 3.303. The Veteran is competent to assert the occurrence of in-service injury or condition. See, e.g., Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Similarly, as a layperson, he is competent to report that he has experienced low back symptoms since service. See Layno v. Brown, 6 Vet. Vet.App. 465, 470. However, although the appellant is competent to claim that he has a low back disorder related to service, his assertions are less probative than the opinion of a skilled VA clinical professional for the reasons specified above. The Veteran and his representative also assert that a low back disorder is secondary to or has been aggravated by service-connected disability. Service connection is in effect for bilateral knee disability, among other things. Applicable law provides that a disability that is proximately due to, the result of, or permanently aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2013). As to this theory of entitlement, the case was remanded for further development because the Veteran had not a VA examination that addressed whether a back disorder is secondary to a service connected disorder. However, the record reflects that the appellant cancelled all of the appointments that were scheduled for him in this regard. This effectively represents a failure to report. When a entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be evaluated based on the evidence of record. 38 C.F.R. § 3.655 (2013). As indicated above, the record preponderates against finding entitlement to service connection for a low back disorder. The appellant has not cooperated in VA's attempt to secure additional evidence - specifically, that which might be obtained by VA examination or through records prepared by private providers. The duty to assist is not always a one-way street. In order for VA to process claims, individuals applying for benefits have a responsibility to cooperate with the agency in the gathering of evidence necessary to establishing entitlement to benefits. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991); see also Kowalski v. Nicholson, 19 Vet.App. 171, 179 (2006). Therefore, while the Veteran may attribute a low back disorder to a service-connected disorder, he does not have the requisite medical training to provide a competent or probative opinion in this regard. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA adjudicators are not free to substitute their own judgment for that of an expert and the Board is prohibited from making conclusions based on its own medical judgment. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991).. For all the foregoing reasons, the Board must conclude that a low back disorder, to include as secondary to service-connected disability, must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable as to this aspect of the appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49, 55-57 (1991). 2. Service connection for a left eye disorder, to include post surgery scar. Factual Background Service treatment records reflect that on examination in October 1997 for service entry, the Veteran had distant vision of 20/70 in the left eye that was correctible to 20/20. It was noted that he wore glasses. On service discharge examination in June 1998, it was recorded that he had left eye distant vision of 20/100 without glasses. During an ensuing tour of duty in March 2002, the appellant asked about removal of a lesion of the left eyebrow. It was noted that there was a history of a slow-growing horny mass of the left eyebrow causing some discomfort while wearing headgear. On follow-up in April 2002, an assessment of cutaneous horn of the face was rendered for which he underwent excision under local anesthetic with good results. On examination in July 2003 prior to discharge from active duty, the Veteran indicated that he had loss of vision in the left eye and wore glasses, among other complaints. The examining official's comments included floater in the left eye with no pain or trauma, and that the appellant wore glasses that was nondisqualifying. The Veteran presented testimony on personal hearing in May 2010 to the effect that something about an inch long grew on the left eyebrow during service, and that he had problems seeing. He stated that after surgery in service, his vision returned to normal but that he still had to wear glasses after the mass was taken off. The Veteran underwent a VA eye examination in August 2010. He complained of left eye symptoms of blurring, impaired night vision and floaters. Examination of the left eye disclosed a small loss of eyebrow hair and a well-healed mildly noticeable scar in the left temporal/superior eyebrow area. The examiner indicated that there was incomplete loss of the left eyebrow. Following examination, diagnoses were rendered of minimally noticeable, well healed five millimeter scar, left eyebrow area temporally, residual of cutaneous horn lesion above the left eyebrow, and refractive error, both eyes, not linked to any incident of service, to include cutaneous horn above left eyebrow. Legal Analysis The Veteran's service treatment records clearly reflect that he entered active duty in 1997 with 20/70 vision in the left eye. The appellant was noted to wear eyeglasses to correct the condition. This is characterized as refractive error. As a matter of law congenital or developmental defects, such as a refractive error of the eye, are not diseases or injuries within the meaning of applicable law and regulations for VA compensation purposes. 38 C.F.R. § 3.303(c). A defect is a structural or inherent abnormality or condition that is more or less stationary in nature. VAOPGCPREC 82- 90. However, service connection may be granted for congenital and/or developmental conditions if subject to superimposed disease or injury during military service. Id. Service clinical records do not reflect that the Veteran sustained any left eye trauma or superimposed disease of the left eye. He merely had refractive error. As such, service connection for left eye vision impairment must be denied as no more than a refractive error has been diagnosed, and service connection may not be granted for a refractive error. Moreover, on VA examination in August 2010, the examiner clearly stated, however, that left eye vision loss (refractive error) was not linked to any incident of service, to include a cutaneous horn above left eyebrow. As indicated above, however, the appellant developed a cutaneous horn in the left eyebrow that was excised in April 2002. At the VA examination of the left eye in August 2010, the Veteran was found to have residuals of inservice surgery which included an incomplete loss of the left eyebrow and a well-healed mildly noticeable scar in the left temporal/superior eyebrow area. The examiner stated that these residuals were related to in-service surgery for the cutaneous horn. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service or aggravated by service. 38 C.F.R. §§ 3.303, 3.306. As such, the Board finds that service connection for residuals of a left eyebrow cutaneous horn, including incomplete loss of the left eyebrow and scarring is warranted. ORDER Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for a left eye refractive error is denied. Entitlement to service connection for residuals of left eyebrow cutaneous horn is granted. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs