Citation Nr: 1338444 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 12-30 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for an eye disability, to include residuals of an eye injury, myopia, and conjunctivitis, also to include as secondary to a pituitary macroadenoma. 2. Entitlement to service connection for a pituitary macroadenoma, claimed as a brain tumor. REPRESENTATION Appellant represented by: Betty Jones, Accredited Agent WITNESSES AT HEARING ON APPEAL Appellant and his Caretaker, C.P. ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from January 1981 to January 1984. These matters come before the Board of Veterans 'Appeals (Board) on appeal from an April 2010 rating decision of the RO in Sioux Falls, South Dakota. Jurisdiction has since been transferred to the RO in Chicago, Illinois. The Veteran testified before the undersigned at a Board videoconference hearing held in May 2013. It was noted at the hearing that the Veteran had difficulty communicating due to a recent brain surgery, and his caretaker who was sworn in testified with respect to the issues on appeal on behalf of the Veteran. A review of the Virtual VA paperless processing system contains, in pertinent part, the May 2013 hearing transcript. There are no pertinent documents located in the Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. Myopia, or refractive error of the eyes, is not a disease or injury for the purposes of entitlement to VA compensation benefits. 2. The Veteran currently does not have an eye disability that had its clinical onset during service or is otherwise related to service. 3. The Veteran currently does not have an eye disability that was caused or aggravated by a service-connected disease or injury. 4. Pituitary macroadenoma was not manifest during service or within one year of separation from service, and is not otherwise related to service. CONCLUSIONS OF LAW 1. Service connection for myopia is precluded by governing regulations. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 4.9 (2013). 2. An eye disability, to include residuals of an eye injury, myopia, and conjunctivitis was not incurred in or aggravated during service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 3. An eye disability is not proximately due to, the result of, or aggravated by a service connected disease or injury. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.310 (2013). 4. Pituitary macroadenoma was not incurred in or aggravated during service, nor may this disability be presumed to have been incurred in or aggravated during service. 38 U.S.C.A. §§ 1101, 1110, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided a VCAA notice letter in November 2009 prior to the RO adjudication in April 2010. The Veteran was notified of the evidence needed to substantiate the claims for service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claims. Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims. Service treatment records, post-service medical records (private and VA) and lay statements have been associated with the record. The Veteran was afforded a videoconference Board hearing in connection with his claim during which the undersigned Veterans Law Judge (VLJ) clarified the issues on appeal, explained the concept of service connection, identified an evidentiary deficit, and suggested the submission of additional evidence to support the Veteran's claim. The VLJ left the record open for a 60-day period following the hearing to allow for the submission of additional evidence. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. VA has not afforded the Veteran a comprehensive medical examination relating to his claims on appeal. The Board finds that such an examination is not necessary to render a decision under the circumstances of this case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). Under McLendon, in disability compensation claims, VA must provide a VA 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 Secretary to make a decision on the claim. Id. A VA examination under the standards of McLendon is not warranted in this case. Although the Board notes a current disability for an eye disability and a brain tumor during the period of appeal, the second element is still not met here. There is no evidence of an event, injury, or disease in service with respect to these claims. Although the Board is aware that the lack of contemporaneous medical records showing an event in service is not a sufficient basis to find that such event did not occur, see Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006), the Board may still weigh the lack of contemporaneous evidence in conjunction with the other evidence in the claims folder. See Kahana v. Shinseki, 24 Vet. App. 428 (2011) (Judge Lance's concurring opinion suggests that a lack of contemporaneous evidence may be a fact that the Board can consider and weigh against a Veteran's lay evidence when such consideration is not prohibited.). To that end, the Veteran's lay statements attempting to establish nexus to service are not credible when weighing its probative value against that of the service treatment records and post-service treatment records. In Bardwell v. Shinseki, 24 Vet. App. 36 (2010), the Court held that where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required. Id. at 39. Thus, the Board finds that referral of these claims for an examination or to obtain a medical opinion under the circumstances here presented would be a useless act. The duty to assist is not invoked, even under McLendon, as here the evidence fails the McLendon analysis for these claims. There is no competent evidence of an event, injury, or disease occurred in service or that otherwise indicates possible relationships to service. Since "no reasonable possibility exists that such assistance would aid in substantiating the claims," a remand for further development is not warranted. 38 U.S.C.A. § 5103A(a)(2). Thus, with respect to the Veteran's claims, there is no additional evidence which needs to be obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Principles and Regulations of Service Connection As an initial matter, the Board notes that the Veteran does not claim, and the evidence does not reflect, that his disabilities are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). 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). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including brain tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.307, 3.309. 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. 38 C.F.R. § 3.310(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Eye Disability The Veteran contends that he has impaired vision, or an eye disability, that is related to service. In December 2011, he contended that his visual impairment, or lost peripheral vision, is due to his brain tumor. The Board has also considered alternative theories of service connection for this issue, such as secondary service connection. However, it follows since the Board will be denying service connection for a pituitary macroadenoma herein, see infra, any eye disability secondary to the pituitary macroadenoma must also be denied. The Veteran's entrance examination in October 1980 reveals 20/20 distant vision, "J-1" for the Jaeger near acuity notation (1 to 16 scale), normal visual acuity and refraction, and no disqualifying defects. The Veteran did not complain about any visual impairments upon entry. The October 1982 in-service examination reveals the exact same. A June 1983 service treatment record indicates that the Veteran was diagnosed with conjunctivitis secondary to an eye infection and had a reoccurring problem with his right eye for several days as he claimed it continuously blurred his vision. His right eye was noted to be swollen and lid held shut. The eye was red and there was drainage. The Veteran's right eye was irrigated, ointment was applied, and an eye patch was given as treatment. However, upon separation examination in January 1984, the Veteran was found to be normal with respect to visual acuity and refraction, had 20/20 distant vision, and 20/20 near vision. There was no indication of residuals of an eye injury or conjunctivitis noted upon separation. Post-service treatment records reveal a July 2009 VA outpatient note that shows full visual fields, a diagnosis of myopia, and an indication that there is no evidence of an eye condition related to the Veteran's adenoma. The Board notes that the Veteran underwent a pituitary adenoma resection in August 2011. The Veteran was afforded a VA eye examination in June 2012, during which the VA examiner performed relevant tests for visual acuity. The examiner considered the Veteran's history of visual impairment, to include the report of loss of peripheral vision after surgery in 2011. The examiner's assessment was decreased visual acuity in both eyes. He noted that the Veteran had difficulty understanding simple requests and had speech deficits and slow response time, thus some of his responses were unreliable. The examiner noted that it was difficult to determine the extent of visual changes the Veteran was experiencing given his cognitive deficit and difficulty understanding testing instruction; however, it was as likely as not that the subjective visual changes the Veteran experiences is related to the past pituitary adenoma status-post resection. In formulating his opinion, the examiner considered the July 2009 note indicating full visual field, normal eyes, refractive error, and no evidence of eye issues secondary to his brain tumor at the time; the conjunctivitis noted in service; and the normal results for visual acuity at entrance and separation from service. A July 2013 VA neurology note considered whether the eye problems in service (conjunctivitis) was related to the brain tumor. The Board notes that as the Veteran's pituitary macroadenoma is not service-connected, such inquiry does not help the Veteran. The Board notes that there is no competent opinion supporting the contention that the Veteran's current eye disability is due to any event or incident in service. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (2007) ("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"); see also Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). A layman is competent to report what he or she experiences through one of the senses. See Layno v. Brown, 6 Vet. App 465, 470 (1994). Thus, the Veteran is competent to report that he has had problems with visual acuity during service and thereafter. However, the Board finds that beyond a notation of conjunctivitis in service, which has apparently resolved prior to separation from service, the probative evidence of the record (e.g., service treatment records and VA examination) indicate that the Veteran did not have a service-connectable disease or injury of the eye that had manifest in service. The Board also recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)). However, the etiology of an eye disability which has manifest decades after separation from service is a complex medical matter beyond the expertise of a layperson. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). In this instance, no individual with appropriate expertise has related his eye disability to service. In fact, the probative evidence of record shows that the Veteran's current visual impairments are more likely related to his August 2011 resection surgery, and not an event in service. Thus, the evidence falls short of suggesting a nexus between a current eye disability and an in-service event. As such, with regard to the issue of causation, there are no Jandreau/Buchanan exceptions that are applicable to this issue. To the extent that the Veteran is claiming service connection for his myopia, the result is the same. The Board notes that refractive errors are not considered diseases or injuries for VA purposes, and provide no basis for service connection. 38 C.F.R. §§ 3.303(c), 4.9; Beno v. Principi, 3 Vet. App. 439, 441 (1992). In the absence of a superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia, and astigmatism, even if visual acuity decreased in service, as those are not a diseases or injuries within the meaning of applicable legislation relating to service connection. See id. Thus, VA regulations specifically prohibit service connection for refractive errors of the eyes unless the defect was subjected to a superimposed disease or injury that created additional disability. VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45,711 (1990). On this record, the evidence shows that the Veteran's myopia was not subjected to a superimposed disease or injury that created an additional disability. On the contrary, the evidence supports the finding that the Veteran's current eye disability is due to either his past pituitary adenoma resection or a cause unrelated to service. In other words, the evidence does not show that the in-service conjunctivitis was superimposed on the Veteran's myopia resulting in an additional disability. Instead, the evidence shows that the conjunctivitis in the right eye noted in service was acute and resolved in service, as evidenced by the separation examination, and is unrelated to the Veteran's current eye disability. In sum, the evidence deemed most probative by the Board establishes that service connection for an eye disability is not warranted. The evidence establishes that such disability was not manifest during service and there is not competent evidence linking such disability to service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Brain Tumor The Veteran specifically avers that his brain tumor, which was manifest in service by headaches, was a direct result of his service. Service treatment records show no complaints, diagnoses, or related symptomatology for a brain tumor. Upon entrance examination in October 1980, the Veteran's clinical evaluation was normal across the board, to include examinations of his head and neurological functions. His October 1980 report of medical history indicated no frequent or severe headaches. In-service examination in October 1982 revealed exactly the same. Upon separation examination in January 1984, the Veteran's clinical evaluation was normal, to include examinations of his head and neurological functions. Post-service treatment records show that the Veteran was diagnosed with a pituitary macroadenoma in June 2009. Thus, there is no evidence of a brain tumor within one year of separation from service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. A June 2013 medical note from a VA physician indicates that the Veteran had a pituitary adenoma resection in August 2011, and since that time, he has had significant deterioration in balance, memory, word finding, and gait abnormalities. The Veteran was described as wheelchair bound and requiring 24-hour assistance in his activities of daily living. A private medical opinion from Dr. R.T.N. dated August 2013 indicates that the Veteran has a documentation of headaches, eye problems, and foot and ankle issues dating back to 1982 in service. He explained that the time span between his initial complaints of headaches and diagnosis of his adenoma is over 20 years old, and it was unlikely that this was his initial symptom from the adenoma. Dr. R.T.N. elaborated that pituitary tumors are generally slow growing and are often present years before diagnosis, but 20 years makes cause and effect difficult to conclude. He indicated that a neurologist's opinion could be helpful. The Board notes that there is a July 2003 neurology outpatient note that does not relate the Veteran's pituitary adenoma to any event in service. The Board notes that there is no competent opinion supporting the contention that the Veteran's brain tumor is due to any event or incident in service. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (2007) ("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"); see also Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). A layman is competent to report what he or she experiences through one of the senses. See Layno v. Brown, 6 Vet. App 465, 470 (1994). Thus, the Veteran is competent to report that he has experienced headaches during service and thereafter. However, the Board finds the evidence of record showing no complaints of headaches upon separation from service to be more probative than the Veteran's assertions to this end. To this end, the Veteran has not established continuity of symptoms of a tumor after discharge as per 38 C.F.R. § 3.303(b). See Walker v. Shinsek, 708 F.3d 1331 (Fed. Cir. 2013). Here, there is no proof that a tumor was noted or diagnosed during service. Furthermore, there was no characteristic manifestations of the tumor during service. Rather in July 2013, it was established that there was nothing in the service record that would necessarily indicate that his condition was present at that time. The Board also recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)). However, the etiology of pituitary macroadenoma which has manifested decades after separation from service is a complex medical matter beyond the expertise of a layperson. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). In this instance, no individual with appropriate expertise has related a brain tumor to service. In fact, Dr. R.T.N. provided a negative nexus opinion after considering the Veteran's reports of headaches in service. He considered the Veteran's symptomatology, diagnosis of a brain tumor, and based on his medical expertise, concluded that there was not a relationship to service. The evidence falls short of suggesting a nexus between such a disability and an in-service event. As such, with regard to the issue of causation, there are no Jandreau/Buchanan exceptions that are applicable to this issue. In sum, the evidence deemed most probative by the Board establishes that service connection for a pituitary macroadenoma (or brain tumor) is not warranted. The evidence establishes that such disability was not manifest during service or within one year of separation and there is not competent evidence linking such disability to service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for an eye disability, to include residuals of an eye injury, myopia, and conjunctivitis, also to include as secondary to a pituitary macroadenoma, is denied. Service connection for a pituitary macroadenoma, claimed as a brain tumor, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs