Citation Nr: 1337156 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 09-35 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for an eye disability to include color blindness. 2. Entitlement to service connection for a psychiatric disability to include posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for hepatitis B. REPRESENTATION Veteran represented by: Michael J. Brown, Attorney-at-Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to September 1967. These matters came to the Board of Veterans' Appeals (Board) from a September 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were remanded in April 2011. The Veteran testified at a RO hearing in May 2013; the transcript is of record. The issue of entitlement to service connection for hepatitis B 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. VA will notify the Veteran if any further action is required on his part. FINDINGS OF FACT 1. Color blindness is not shown. 2. The Veteran's decreased visual acuity is due to refractive error and is not a disability for the purposes of entitlement to VA compensation benefits. 3. The Veteran does not have a current diagnosis of PTSD, nor does he have another current psychiatric disability. CONCLUSIONS OF LAW 1. Color blindness or other vision impairment was not incurred in, or aggravated by, the Veteran's active duty service. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. § 3.303, 4.9 (2013). 2. The criteria for a grant of service connection for a psychiatric disability, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (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, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the 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. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). With regard to the claims of service connection for eye and psychiatric disabilities, the Veteran was sent a letter in November 2007 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal, and notice of what type of information and evidence was needed to establish a disability rating and effective date. In January 2009, additional notice was issued to the Veteran regarding his PTSD claim. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes aiding him in the procurement of relevant evidence that could substantiate the claim, such as service and post-service treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished, to include substantial compliance with the Board Remand, and therefore appellate review may proceed without prejudice to the Veteran. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, post-service treatment records from the VA Medical Center (VAMC) in Wilkes-Barre Pennsylvania, records from the Scranton Vet Center, and records from a private physician, Anselm O. Igbanugo, M.D. In April 2011, this matter was remanded to obtain records from Dr. Mark Murnin. In December 2011, the RO sent a letter to the Veteran requesting that he complete a VA Form 21-4142, Authorization and Consent to Release, pertaining to Dr. Murnin or he was notified that he could submit the records himself; however, the Veteran did not respond. While VA has a duty to assist the Veteran in the development of his claim, the Veteran has a duty to cooperate with VA. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board finds that VA has fulfilled its duty to assist the Veteran in attempting to obtain these records. The Veteran underwent a VA examination in March 2012 pertaining to his psychiatric disability claim. It is comprehensive and sufficient with regard to the PTSD disability issue on appeal. At the RO hearing, the Veteran's attorney stated that the Veteran would undergo an examination with a private psychologist and the examination report would be submitted. T. at 24. To date, such examination report has not been received. In a September 2013 submission from the Veteran's attorney in response to the September 2013 supplemental statement of the case, it was indicated that there was no further information or evidence to submit. It is noted that the RO did not provide a VA examiner to review the claims file for a nexus opinion for the color blindness service connection issue on appeal but such is not required in order to make a final adjudication. In disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The standards of McLendon are not met with regard to the issue of service connection for color blindness. As will be discussed in detail below, the evidence does not establish that the Veteran suffered "an event, injury or disease in service," with regard to this claimed condition nor is a diagnosis shown post-service, so it is not necessary to obtain a VA medical opinion with regard to etiology. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him 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). Criteria & Analysis Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements for chronic diseases is through a demonstration of continuity of symptomatology. This route to service connection is not available in this case, because the claimed conditions are not listed as chronic diseases. 38 U.S.C.A. § 1101(a) (West 2002); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay testimony is competent if it pertains to matters that the witness has actually observed and is within the realm of the witness's personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007) (overruled on other grounds); see also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a psychosis becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of a psychosis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Eye Disability For purposes of entitlement to benefits, the law provides that refractive errors of the eyes are developmental defects and not disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes. 38 C.F.R. §§ 3.303(c), 4.9; VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). In the Veteran's October 2007 claim for compensation, he asserted that color blindness was diagnosed in September 1967 during service. In his notice of disagreement, he stated that he was not color blind at entrance and his color blindness was caused by watching artillery blasts. Service treatment records do not reflect any findings of color blindness and his September 1967 Report of Medical Examination conducted for separation purposes also does not reflect a notation of color blindness. The examiner noted that vision was 20/50 in the right eye and 20/30 in the left eye, both corrected to 20/20 in the eyes, and that he had refractive error, bilateral, not disabling. On a Report of Medical History completed by the Veteran in September 1967 he checked the "No" box for "color blindness." Post-service VA and private treatment records do not reflect any notations, references, or diagnoses of color blindness. In his October 2007, claim for VA benefits the Veteran indicated that color blindness had begun in 1967, but he had received no treatment. At VA outpatient treatment in 2008, the Veteran reported his prior medical history, but there was no mention of color blindness. In August 2009, Dr. Igbanugo, provided an examination in which he indicated that the eyes were normal. At his hearing, the Veteran testified that at his service discharge examination a doctor told him that he had passed an examination for color blindness prior to going to Vietnam, but had failed this test on the separation examination. The Veteran is competent to report that he was told that he had color blindness in service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). This testimony is; however, contradicted by the contemporaneous record. It is significant that the examiner did not report color blindness on the service separation examination, given that the examiner did report other defects such as refractive error. The Veteran also repeatedly made no mention of color blindness during VA and private treatment, even when his medical history was solicited. The Veteran's recollections many years after the events, of having been told of color blindness in service, are not deemed credible. The only eye abnormality documented during or since service, was the refractive error noted on the service separation examination. As noted, refractive error is not considered a disease or injury for which service connection may be granted. 38 C.F.R. §§ 3.303(c), 4.9. Thus, service connection must be denied for this condition as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). In the absence of proof of an eye disability, other than a congenital defect, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. In the absence of any competent evidence of color blindness, the Board must conclude the Veteran does not currently suffer from such condition. Since the competent and credible evidence shows that the Veteran has only refractive error and not color blindness, there is no basis for granting service connection. The weight of the evidence is against the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Thus, the claim is denied. PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f). If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 38 C.F.R. § 3.304(f)(3). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). The Veteran had 11 months and 23 days of foreign service in the Republic of Vietnam and is in receipt of the National Defense Service Medal, Vietnam Campaign Medal, and Vietnam Service Medal. His Military Occupational Specialty (MOS) was equipment storage specialist. In an August 2008 statement, the Veteran reported that in 1966 while stationed in the Republic of Vietnam, in the area of Chu Lai and Da Nang, he was on a convoy driving a JP-4 tanker loaded with fuel. They came upon another tanker that had blown up and military personnel were pulling two people from the cab of the truck, and yelled for their truck to continue. Since returning home, the Veteran has been unable to drive on highways close to tanks or tanker trucks knowing what could happen. He also reported that while assigned to the 221st supply and service company in Chu Lai he was ordered to be the "company shit burner" in between driving JP-4 tankers which has caused him embarrassment. He tried to get transferred to another infantry unit without success. In September 2008, the Veteran sought treatment at the Scranton Vet Center. The Vet Center Intake form reflects a presentation of PTSD with the symptoms of sleep disorder and anger. The Veteran reported that he was a tanker driver on convoys during service. He reported constantly coming under mortar attacks including booby traps on the roadways and he reported that some fellow soldiers were killed when their tanker blew up. The counselor's assessment was that the Veteran suffers from PTSD with the symptoms of flashbacks when traveling on the highway behind a tanker. He underwent 11 sessions over the course of 3 months to address his symptoms. In December 2008 he had completed treatment and he was referred to another Vet Center and a VAMC. Treatment records from the Wilkes-Barre VAMC do not reflect any mental health diagnoses. A September 2008 VA primary care evaluation for becoming established in the VAMC system does not reflect any mental health complaints. He underwent a PTSD screen and he answered 'No' with regard to having any experiences that have caused nightmares, avoidance, hypervigilance, or numbness/detachment. The PTSD screen was negative. He was, however, advised on alcohol use. In March 2012, the Veteran underwent a VA examination and the examiner noted review of the claims folder, to include the records from the Scranton Vet Center. The Veteran reported driving JP-4 tankers during service. He described an event of a tanker blowing up. When asked about personally feeling endangered, the Veteran stated that mostly he heard firefights in the distance. The examiner acknowledged the Veteran's treatment at the Vet Center and the diagnosis of PTSD but noted that the Vet Center examiner did not explain the basis for the diagnosis. The Veteran reported to the VA examiner that he did not believe he had PTSD nor any other psychiatric disorder. He described feelings of survivor guilt related to his time in Vietnam. He has long been involved with a biker group which he helped found whose members are Vietnam veterans who have worked as police officers. As part of this group, he is involved in service work with returning veterans and he described feelings of sadness and questioning why he survived in Vietnam when involved in functions, such as escorting wounded veterans. The VA examiner noted the negative screening for PTSD at a VAMC in 2008. With regard to the anger reflected in the Vet Center records, the Veteran described being assertive and voicing his opinion and/or standing up for what he feels is right, but he denied any problems related to anger. He did acknowledge a sense of hypervigilance when confronted with stimuli such as being on a highway with tankers but he denied dissociative experiences related to this. Likewise, this symptom does not prevent him from engaging in regular functions and/or travel. The examiner found that his claimed stressor met Criterion A and was related to his fear of hostile military or terrorist activity. Specifically, he experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and, his response involved intense fear, helplessness or horror. With regard to Criterion B, the examiner found that he has intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. Criterion C, pertaining to avoidance, was not met. With regard to Criterion D, the examiner found hypervigilance. With regard to Criterion E and F, the examiner found that the Veteran did not meet the full criteria for PTSD. The examiner concluded that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-IV and that he did not have a mental disorder that conformed to DSM-IV criteria. The examiner commented that the Veteran experienced subclinical symptoms which may be helped through outlets such as veteran support groups, but did not present with a diagnosable psychiatric condition and his symptoms do not interfere in a significant way with social and/or occupational functioning. Likewise, the Veteran stated that he does not view himself as having PTSD or any other psychiatric disorder. The Vet Center records do not discuss the detailed DSM-IV criteria for a diagnosis of PTSD or explain how the Veteran meets the criteria for the diagnosis. The March 2012 VA examiner's opinion discusses the criteria in detail, considers the Veteran's history and includes explanation as to how the Veteran does not meet the DSM-IV criteria for a diagnosis. See Boggs v. West, 11 Vet. App. 334 (1998). With regard to the notation of PTSD at the Vet Center treatment records, as detailed, the March 2012 VA examiner questioned this diagnosis as the basis for the diagnosis was not reflected. Also, it appears that the initial intake was conducted by a social worker/counselor, rather than a psychologist or psychiatrist. Thus, the Vet Center report of PTSD is of limited probative weight. The Board has given consideration to the Veteran's occasional contention that that he has PTSD due to in-service stressors. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Here; however, the criteria set forth in Jandreau have not been met. While the Veteran is competent to identify symptoms such as anger, nightmares, and anxiety, VA regulations require that the diagnosis be made in accordance with 38 C.F.R. § 4.125, which in turn requires that diagnosis will be made by an examiner in accordance with the specific criteria of the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM), 32 (4th ed.) (1994) (DSM IV); 38 C.F.R. §§ 4.125. As a lay person the Veteran lacks the expertise needed to render a diagnosis in accordance with the technical requirements of the DSM IV and 38 C.F.R. § 4.125. The probative medical evidence of record does not reflect a diagnosis of PTSD. The March 2012 VA examiner provided the most probative opinion. As the most probative evidence is against a finding that the Veteran has current PTSD, the evidence is against the claim of service connection for that disability. The Board must broadly construe claims and in the context of psychiatric disorders must consider other diagnoses for service connection when the medical record so reflects. Clemons v. Shinseki, 23 Vet. App. 1, 4 (2009). In this case, however, no other psychiatric disability has been identified. Thus, there is no basis to warrant service connection for a psychiatric disorder other than PTSD. The weight of the evidence is against the claim. Reasonable doubt does not arise and the claim is denied. ORDER Entitlement to service connection for an eye disability, to include, color blindness is denied. Entitlement to service connection for a psychiatric disability, to include PTSD, is denied. REMAND A Remand confers on the Veteran the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). In April 2011, this matter was remanded to afford the Veteran a VA examination pertaining to the nature and etiology of his claimed hepatitis B. In March 2012, the Veteran underwent a VA examination and hepatitis B was diagnosed; however, the examiner did not provide an opinion as to its relationship to service. Accordingly, the case is REMANDED for the following action: 1. Return the claims folder and a copy of this Remand to the March 2012 VA examiner and ask the examiner to provide an opinion as to whether the Veteran's hepatitis B, at least as likely as not (a 50 percent or more probability), is due to an event during active military service. The examiner is advised that the Veteran is competent to report symptoms and injuries, as well as diagnoses provided to him by physicians. If the Veteran's reported history is discounted, the examiner should provide a reason for doing so. A Veteran's statements may not be discounted solely on the basis of lack of confirmation of the medical records. Reasons should be given for all opinions and conclusions expressed. If the March 2012 VA examiner is unavailable, please refer the case to another physician with appropriate expertise for the requested opinion, and another VA examination should be scheduled if deemed necessary for the examiner to offer an opinion. 2. If the benefit sought on appeal remains denied, issue a supplemental statement of the case before the case is returned to the Board, if otherwise in order. The Veteran and his attorney have 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 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. 2013). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs