Citation Nr: 1336883 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 08-15 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for uveitis, including as secondary to service-connected degenerative disc disease with bilateral L5 spondylosis and resultant grade 1 anterolisthesis. 2. Entitlement to an initial compensable evaluation for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from October 1976 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of October 2002 which denied service connection for uveitis. Although subsequently developed for appellate consideration from an April 2007 rating decision that denied the Veteran's petition to reopen the claim previously denied in October 2002, as discussed by the Board in a decision dated in February 2013, an August 2003 statement from the Veteran was sufficient to constitute a timely substantive appeal, thus perfecting the appeal from the October 2002 rating decision. See 38 C.F.R. § 20.202 (2013). The issue was remanded by the Board in February 2013, and has now been returned for appellate consideration. Although the Veteran testified at a Board videoconference hearing in June 2012, the issue of service connection for uveitis was not addressed at that hearing. The Veteran did not request a hearing with respect to that issue. Therefore, the Veterans Law Judge (VLJ) who held the Board hearing in June 2012 is not required to participate in this decision. See 38 C.F.R. § 20.707 (2013) (VLJ who holds hearing must participate in decision on the claim); Arneson v. Shinseki, 24 Vet. App. 379 (2011) (held that a veteran is entitled to have an opportunity for a hearing before all Board members who will ultimately decide the appeal). The February 2013 Board decision also disposed of additional issues involving service connection for degenerative joint disease and hypertension in a merits decision; consequently, they are no longer on appeal. The issue of entitlement to an initial compensable rating for hypertension 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. FINDING OF FACT Uveitis was first shown eight years after service; and, uveitis is not shown to have been caused or aggravated by the Veteran's military service or his service-connected degenerative disc disease with bilateral L5 spondylosis and resultant grade 1 anterolisthesis. CONCLUSION OF LAW Uveitis was not incurred in or aggravated by active service, or caused or aggravated by service-connected disability. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letters dated in November 2011 and February 2013 of the criteria for establishing service connection, including on a secondary basis, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. Although this letter was not sent until after the initial adjudication of the claim, it was followed by readjudication and issuance of a supplemental statement of the case in March 2013. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Hence, the VCAA notice requirements have been satisfied. VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). Service treatment records have been obtained. VA and identified private treatment records were obtained. No outstanding evidence has been identified that has not otherwise been obtained. A VA examination was provided in August 2002. The examination involved a physical examination, interview, and review of the claims file, and rationale was provided for the opinions rendered. Read as a whole, and taken together with the subsequent pertinent outpatient treatment records and imaging studies, discussed below, the opinion provides an adequate basis for the Board to decide this appeal. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) ("An adequate medical report must rest on correct facts and reasoned medical judgment so as inform the Board on a medical question and facilitate the Board's consideration and weighing of the report against any contrary reports."); Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (VA examination report "must be read as a whole" to determine an examiner's rationale). Further, the directives in the November 2011 and February 2013 Board remands have been satisfied. See Stegall v. West, 11 Vet. App. 268 (1998) (Board remand instructions are neither optional nor discretionary, and compliance is required); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (the Veteran is entitled to substantial compliance with the Board's remand directives). Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). No further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110 , 1131 (West 2002). Generally, the evidence 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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Uveitis is not a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection via the demonstration of continuity of symptomatology is not applicable in the present case. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service treatment records do not show uveitis, or any other eye condition, during service. There is also no evidence that the Veteran's diagnosed uveitis until eight years after his service discharge. Evidence establishing a relationship between his active service and his uveitis is also not recognized. Service connection under the auspices of 3.303(a) or 3.303(d) is not warranted. The Veteran does not contend otherwise. Rather, he argues that uveitis developed secondary to his service-connected back disability, degenerative disc disease with bilateral L5 spondylosis and resultant grade 1 anterolisthesis. He states that an eye doctor at the VA medical center in Memphis told him that his uveitis was related to his ankylosing spondylitis. As in effect in this case, service connection may be granted on a secondary basis for disability which is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2013). However, as discussed below, the evidence demonstrates that although ankylosing spondylitis has indeed been suspected by treating physicians, it has never been confirmed to be present. In contrast, his service-connected back condition includes spondylosis, a different condition. Similarly, spondylolisthesis-also present-is not the same thing as ankylosing spondylitis. In this regard, "ankylosing spondylitis" is a form of degenerative joint disease that affects the spine. It is a systemic illness of unknown etiology, producing pain and stiffness as a result of inflammation of the sacroiliac, intervetebral, and costovertebral joints. DORLAND'S ILLUSTRATED MEDICAL DICTIONALRY 1742 (30th ed, 2003). "Spondylosis" is defined as ankylosis of a vertebral joint, or degenerative spinal changes due to osteoarthritis. Id. Lumbar spondylosis is degenerative joint disease affecting the lumbar vertebrae and intervertebral discs. Id. "Spondylolisthesis" is defined as forward displacement of one vertebra over another, usually due to a developmental defect in the pars interarticularis. Id., see also Smith v. Derwinski, 1 Vet. App. 235, 236 (1991). Although this seems confusing, notably, neither of the latter two conditions, which have been confirmed in the Veteran, are systemic diseases, as is ankylosing spondylitis. Service treatment records show that in December 1977, the Veteran complained of trauma to the left hip due to a motor vehicle accident in which a jeep had been overturned. Subsequently, he began to complain of back pain since the motor vehicle accident. In January 1979, he said that he had been evaluated several times, but no cause for the pain had been found. Laboratory results show that the rheumatoid factor (RA) was negative in July 1978, and in January 1979, the RA as well as the anti-nuclear factor (ANF) were negative. After service, private X-rays and a computerized tomography (CT) scan of the lumbosacral spine in March 1985 revealed spina bifida occulta and bilateral pars defect with spondylolisthesis. VA treatment records show that in July 1992, the Veteran was treated for anterior uveitis. At that time and on several subsequent occasions, a history of the first episode of uveitis having occurred in 1987 was reported. In March 2001, the Veteran suffered another episode of uveitis. In April 2001, it was noted the cause of the uveitis had never been established. The impression was recurrent uveitis in a patient positive for HLA-B27. He was referred for a rheumatology consult. The rheumatology consult, in June 2001, noted complaints of worsening morning stiffness, and a painful numbness in his fingers. The physician thought that the Veteran's symptoms of uveitis with dry eyes and finger numbness suggested possible sicca or Sjögren's syndrome, and SS-a and SS-b tests were recommended. The physician thought that the low back pain was secondary to trauma and most likely a coincidental finding. Rheumatology follow-up in August 2001 noted that "recent evaluation for ankylosing spondylitis showed positive HLA-B27 but negative FANA and negative SS-a and SS-b." A nuclear bone scan in July 2001 showed low grade activity at the left sacroiliac most likely representing degenerative changes, and was not suggestive of ankylosing spondylitis. There were also indications of degenerative changes or stress related to spondylolisthesis or pars defect. The Veteran was seen for follow-up in the rheumatology clinic in March 2002. The Veteran had limitation of motion in the low back due to stiffness and pain. X-rays were suggestive of early osteoarthritis at the sacroiliac joint; there were no definite findings to suggest ankylosing spondylitis. Nevertheless, the physician concluded that the Veteran's resting low back pain and positive HLA-B27, with uveitis, were most likely ankylosing spondylitis, but other possibilities should be considered. The Veteran was also diagnosed as having uveitis, well controlled by the ophthalmology clinic. On a VA examination of the eyes in August 2002, the Veteran was diagnosed as having anterior uveitis, recurrent by history, both eyes, which was currently inactive. He also had a cataract of the left eye, likely related to uveitis. The examiner commented that uveitis workup showed positive HLA-B27 but imaging studies had been negative for ankylosing spondylitis. The examiner observed that differential diagnoses of HLA-B27 uveitis included ankylosing spondylitis, Reiter's disease, inflammatory bowel disease, and psoriatic arthritis. The rheumatology work-up had been negative for ankylosing spondylitis, however; and, uveitis was classified as idiopathic when no etiology was found on workup. It was the opinion of the examiner that the uveitis was not traumatic in origin and was not related to the service-connected injury of the low back with protruded disc, or related to a motor vehicle accident in service. Another rheumatology clinic follow-up note in September 2002 reported an impression of back pain and positive HLA-B27, which "may be early ankylosing spondylitis." Other differentials were also suggested, and X-rays or a bone scan, to see if the sacroiliac joints "light up," were to be considered. An outpatient treatment note in December 2002 did not mention the possibility of ankylosing spondylitis, but instead reported that a CT scan in May 2002 had shown a bilateral pars defect at L5 and small herniated disc at L4-5. In March 2007, the Veteran was seen for an ophthalmology consult; it was noted that he had been lost to follow-up for 4 years. He was noted to have a history of 4 episodes of uveitis. It was also noted that he was "HLA-B27 positive with lower back pain. With probably ankylosing spondylitis. Has seen rheumatology in past and told this." On a rheumatology consult in December 2008, it was noted that the Veteran had uveitis since 1987, degenerative joint disease of the lumbar spine, and back pain since 1978; he was to be evaluated for a question of spondyloarthropathy. Spondyloarthropathy is defined as "disease of the joints of the spine," but may also include a number of degenerative joint diseases with common features, including ankylosing spondylitis. See DORLAND'S, at 1743. The Veteran said that his back pain, present since 1978, had been worsening over the past 4 years. He had morning stiffness of about 3 hours. He denied pain or swelling in any other joints. He had also had attacks of uveitis off and on since 1987. Family history was negative for rheumatoid arthritis, ankylosing spondylitis, and lupus. On examination, there was no synovitis. Lumbosacral spine flexion was limited by pain. There was no tenderness to palpation. Magnetic resonance imaging (MRI) scan of the lumbar spine was positive for spondylolisthesis at L5-S1, without ankylosis. A bone scan did not show any increased activity suggestive of ankylosing spondylitis. The impression was back pain likely secondary to degenerative joint disease, with no evidence of spondyloarthropathy on examination and imaging. He also had uveitis of unknown etiology. In August 2009, history of uveitis but no spondyloarthropathy was noted. An ophthalmology note dated in April 2011 noted that the Veteran had a history of HLA-B27 positive uveitis, without any flares since the last examination. Thus, the file shows that ankylosing spondylitis was suspected on a number of occasions, due to symptomatology reported by the Veteran, and his history of HLA-B27 positive uveitis. However, further testing, in particular, imaging studies including bone scans, did not reveal any findings suggestive of ankylosing spondylitis. The evidence does not show that a diagnosis of ankylosing spondylitis has ever been confirmed. The most recent work-up, in December 2008, was negative, and the medical records dated after that are devoid of any mention of the possibility of ankylosing spondylitis. Concerning the Veteran's service-connected back disability, degenerative disc disease with bilateral L5 spondylosis and resultant grade 1 anterolisthesis, there is no medical evidence indicating a connection between uveitis and his service-connected back condition, including by aggravation. The connection that was suspected was specifically limited to ankylosing spondylitis, and was indicated by the positive HLA-B27 test which was also linked to uveitis. HLA-B27 is a genetic indicator. See DORLAND's, at 104. As such, by itself, it does not establish the presence of a disease. As can be seen in the medical records summarized above, it led physicians to suspect the presence of ankylosing spondylitis, but additional development did not confirm the presence of the disease. The issue is admittedly confusing because of the number of different conditions starting with "spond," but the only one identified in the medical record as possibly being associated, via the genetic indicator HLA-B27, with uveitis has been ankylosing spondylitis. This condition has not been found to be present. Consideration has been given to the Veteran's personal assertion that his uveitis is due to his service-connected back condition. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, since specific medical expertise, including testing, is needed to confirm associate uveitis with a service-connected back disability, or to establish a diagnosis of ankylosing spondylitis, the matter falls outside the realm of common knowledge of a lay person. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Although the Board readily acknowledges that Veteran is competent to report his observable symptoms, and to relate what a doctor told him, i.e., that his uveitis is related to ankylosing spondylitis, review of the claims file discloses that his information was incomplete. Specifically, although suspected, ankylosing spondylitis has never been confirmed to be present, and, after the last bone scan, the possibility has not been raised. There is no medical evidence indicating that his service-connected disability, which includes "spondylosis," but not "ankylosing spondylitis," is or could potentially be related, in any way, to uveitis. Indeed, the VA examiner in August 2002 found that there was no relationship between the uveitis and the service-connected injury of the low back with protruded disc, or the motor vehicle accident in service. The outcome of the appeals is heavily dependent on finding whether ankylosing spondylitis has been diagnosed, which in turn would open the door to establishing service connection for uveitis. The above-discussed evidence does not support a diagnosis of ankylosing spondylitis. In so finding, the Board readily acknowledges that the Court has held the requirement of a current disability is satisfied if the claimant has the disability at any time during the pendency of the claim. McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board also observes that service connection is not in effect for ankylosing spondylitis, but because the condition has not been found to be present, it is not necessary to develop and adjudicate a claim for service connection for ankylosing spondylitis, in the context of a claim for service connection for uveitis. In this regard, the requirement of a current disability is satisfied if the claimant has the disability at any time during the pendency of the claim. McLain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013) (considering the application of McClain on a diagnosis predating the filing of a claim). However, this is not a situation where a condition such ankylosing spondylitis was diagnosed and resolved at some time during the appeal period. Ankylosing spondylitis has only been suspected, but never actually diagnosed; and, hence, he does not and did not have the disability. In sum, the evidence establishes that uveitis was first shown about eight years after service, in 1987. The Veteran does not contend otherwise. The evidence also establishes that the suggestion of the presence of ankylosing spondylitis is outweighed by further work-up that failed to confirm the presence of the suspected disease. There is no competent evidence suggesting any type of link, by cause or aggravation, between the Veteran's service-connected spondylosis and uveitis, and establishing a connection is beyond the Veteran's competence as a layperson. The Veteran's belief in such a connection appears to stem from the suspected-but never confirmed-diagnosis of ankylosing spondylitis, and its connection to uveitis, rather than the spondylosis for which service connection is in effect. In reaching the above conclusions, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. However, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for uveitis is denied. REMAND The February 2013 Board decision granted service connection for hypertension. The grant of service connection for hypertension constitutes a full award of the benefits sought on appeal with respect to that issue. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). However, in April 2013, the Veteran submitted a notice of disagreement with the non-compensable rating for hypertension assigned in a February 2013 rating decision, which implemented the award of service connection for hypertension granted by the Board. Review of the Veteran's electronic records does not indicate that the RO has taken action on the notice of disagreement. Where a notice of disagreement has been filed with regard to an issue, and no statement of the case has been issued, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Review the Veteran's notice of disagreement as to the grant of a noncompensable rating for hypertension in February 2013, and, after undertaking any indicated notice or development, adjudicate the issue of entitlement to an initial compensable rating for hypertension. If the decision is less than a full grant of the benefit sought, furnish a statement of the case to the Veteran and his representative. This issue should not be certified or returned to the Board unless a timely substantive appeal is received. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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 (West Supp. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs