Citation Nr: 1337389 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 03-24 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for residuals of a head injury. 2. Entitlement to service connection for memory loss. 3. Entitlement to service connection for a refractive error. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to July 1985. He served in the Republic of Vietnam from October 31, 1971 to April 15, 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied the Veteran's claims of service connection for a head injury and memory loss. This matter also comes before the Board on appeal from April 2003 and June 2003 rating decisions issued by the VA RO in Manila, the Republic of the Philippines, which denied the Veteran's claim of service connection for a bilateral cataract with error of refraction. In March 2006 and November 2008, the Board remanded this case for further development. The case has returned to the Board for appellate review. In March 2013, the Veteran informed VA that he wanted "to follow [his] appeal for presumptive Agent Orange particularly Ischemic Heart Disease," and "to follow up my spouse's Chapter 35 benefits." The Board notes that the Veteran is in receipt of a 100 percent disability rating for ischemic heart disease, and has also been granted basic eligibility under 38 U.S.C.A. Chapter 35. As such, the Veteran should clarify with the RO what claims, if any, he wishes to file pertaining to those benefits. The Veteran did not file a timely substantive appeal on the issues of (1) entitlement to an initial disability rating in excess of 10 percent for intervertebral osteochondrosis with spondylosis deformans, or (2) entitlement to an initial compensable disability rating for fractures of the 6th and 7th right ribs with malunion. Specifically, the RO granted service connection for those disorders in an October 2011 rating decision, the Veteran filed a notice of disagreement as to the initial ratings in January 2012, and the RO issued a statement of the case in February 2013 in which it increased his back disability rating to 20 percent and continued his noncompensable rating for his ribs disability. The Veteran did not file a substantive appeal as to those two issues until June 2013. As the Veteran's substantive appeal as to those two issues was not filed within 60 days from the date that the agency of original jurisdiction (AOJ) mailed the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, the substantive appeal is not timely. 38 C.F.R. § 20.302(b)(1). Moreover, no supplemental statement of the case has been issued, nor was one required by a timely submission of additional evidence. 38 C.F.R. §§ 20.302(b)(2), (c). Furthermore, the RO has not taken any actions to indicate that the filing of a timely substantive appeal has been waived; for instance, the RO has not certified the appeal of those two issues. Cf. Percy v. Shinseki, 23 Vet. App. 37 (2009). Consequently, the Board does not take jurisdiction of those two claims. The issues of (1) entitlement to an initial disability rating in excess of 20 percent for intervertebral osteochondrosis with spondylosis deformans, and (2) entitlement to an initial compensable disability rating for fractures of the 6th and 7th right ribs with malunion have been raised by the record-see July 2013 and September 2013 claims, respectively-but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran does not have any disabling residuals of an in-service head injury. 2. The Veteran is already in receipt of service connection for memory loss. 3. The Veteran's refractive error disorder is not a disability for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a head injury have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 U.S.C.A. §§ 3.102, 3.303 (2013). 2. The criteria for service connection for memory loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 U.S.C.A. §§ 3.102, 3.303 (2013). 3. The criteria for service connection for a refractive error disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303(c), 4.9 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The duty to notify was satisfied by way of letters sent to the Veteran in November 2002, September 2003, May 2006 and December 2008 that informed him of his duty and the VA's duty for obtaining evidence. Further, the May 2006 and December 2008 letters met the notification requirements for service connection in Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO most recently readjudicated the claims in an April 2012 supplemental statement of the case. VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service treatment and personnel records, VA and private treatment records, and lay statements have been obtained. A VA medical examination or medical opinion is not necessary for the Veteran's claimed refractive error because that disorder is not subject to service connection. 38 C.F.R. §§ 3.303(c), 4.9 (2013). A VA medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds that the January 2001 and November 2009 VA examination reports as to the Veteran's head injury and memory loss are adequate because the examiner discussed the Veteran's medical history, described the disorders in sufficient detail, and supported all conclusions with analysis and, where possible, objective test results. This claim was remanded by the Board for additional development in March 2006 and November 2008. There has been substantial, if not full, compliance with the Board's remand directives, insofar as VA has provided the Veteran with adequate notice and provided him with a new examination in November 2009. D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not indicated there are any additional records that VA should obtain on his behalf. Thus, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is credible, the Board may properly consider the internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Analysis: Service Connection for Residuals of a Head Injury and Memory Loss As an initial matter, the Board notes that the Veteran is already in receipt of service connection for both headaches and memory loss. Therefore, the Board will construe the Veteran's claims as encompassing any residual disorders of a head injury for which he is not currently in receipt of service connection. The Veteran contends in a February 2001 statement that he sustained a head injury in service in October 1983 when he lost control of his bicycle and rode it into a parked camper, resulting in headaches. In his October 2002 notice of disagreement, the Veteran further contends that his fellow servicemen hit him in the back of his head in July 1977, resulting in headaches and memory loss. In a May 2012 statement, the Veteran contends that his headaches and "memory gaps" resulted from neuronal damage attributable to head trauma in service. In the present case, the Board finds that the preponderance of the evidence is against a grant of service connection for residuals of a head injury and memory loss. First, service connection is not warranted for residuals of a head injury or memory loss because, as discussed above, the Veteran is already in receipt of service connection for headaches and memory loss. Moreover, the Veteran has not specified any other symptoms or diagnoses as residuals of his head injury, and there is no competent evidence of record linking any other residual to his head injury. Second, even assuming arguendo that the Veteran is asserting that he experiences headaches and memory loss as a result of head trauma in service that are different in kind than his service-connected headaches associated with ischemic heart disease and his memory loss associated with diabetes mellitus, the most probative evidence of record shows that his headaches and memory loss do not result from his head trauma in service. Specifically, in January 2001, VA provided the Veteran with an examination, and the VA neurologist examiner opined: [The Veteran's] headaches, which started 3 years ago, are not related to his head injury during service since the complications and sequelae of head injury would have been prominent much [] sooner than 3 years ago. In November 2009, the VA neurologist examiner opined: The Veteran's claimed Headaches and Memory Loss is not caused by or a result of or is causally linked to any incident of active duty, to include the documented attack by a fellow service person. The Veteran is 64 years old, and his headaches cannot be attributed to an attack by another person, inasmuch as evidence did not [point] to any skull or brain injury that may result [in] chronic headaches....The Veteran is now 64 years old and has reached the age status wherein memory loss is noticeable more frequently with people [in] the said age bracket. Consequently, the Board finds that the preponderance of the evidence is against the finding of an in-service incurrence of residuals of a head injury, including headaches or memory loss of a kind other than those for which the Veteran is already in receipt of service connection. While the Veteran is competent to observe and report experiencing headaches and memory loss, he is not competent to provide a nexus opinion on such complex medical questions or distinguish between etiologies of different types of memory loss and headaches. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). By contrast, the VA neurologist examiner's opinion is competent because he is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Also, the VA neurologist examiner's etiological opinion is credible based on its internal consistency and his duty to provide truthful opinions. The Board further finds that the VA neurologist examiner's opinion is most probative because he considered the Veteran's medical records and discussed his medical history, provided an unequivocal and conclusive opinion, and offered clear reasoning explaining why the Veteran's headaches and memory loss are less likely than not to be etiologically related to his in-service head injury. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Based on the foregoing, the Board finds that the VA neurologist examiner's etiological opinions warrant greater probative weight than the Veteran's lay contentions. Accordingly, service connection for residuals of a head injury, including as manifested by headaches and memory loss, is not warranted. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Analysis: Service Connection for a Refractive Error As an initial matter, the Board notes that the Veteran is already in receipt of service connection for bilateral cataracts with hypertensive retinopathy associated with diabetes mellitus, type 2. Therefore, the Board does not consider bilateral cataracts encompassed by his claim, but rather limits review to the claimed refractive error. The Veteran contends in his October 2002 claim that he should be granted service connection for an "error of refraction." Congenital or developmental defects are not considered diseases or injuries within the meaning of applicable legislation pertaining to disability compensation for VA purposes, and provide no basis for service connection. Morris v. Shinseki, 678 F.3d 1346 (Fed. Cir. 2012); 38 C.F.R. §§ 3.303(c), 4.9 (2013). Here, a VA examiner diagnosed the Veteran with cataracts in a February 2010 examination. As discussed above, the Veteran is already in receipt of service connection for bilateral cataracts with hypertensive retinopathy associated with diabetes mellitus, type 2. Furthermore, the Veteran's refractive error, without more, is not considered a disease or injury within the meaning of applicable legislation pertaining to disability compensation for VA purposes. Id. Thus, where, as here, the law and not the evidence is dispositive, the appeal must be terminated or denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, service connection for a refractive error must be denied. ORDER Service connection for residuals of a head injury is denied. Service connection for memory loss is denied. Service connection for a refractive error is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs