Citation Nr: 1338906 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-18 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a bilateral eye disability. 2. Entitlement to service connection for degenerative arthritis, T12-L1, claimed as a low back disability. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD M. Caylor, Associate Counsel INTRODUCTION The Veteran had active military service from January 1966 to January 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2010 (bilateral eye) and December 2010 (arthritis) rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. FINDINGS OF FACT 1. Refractive error is not related to a disease, injury, or event in service; the Veteran did not sustain a superimposed injury or disease during active duty which resulted in additional eye disability. 2. Degenerative arthritis is not related to a disease, injury, or event in service; degenerative arthritis did not manifest within one year of service separation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral eye disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). 2. The criteria for entitlement to service connection for degenerative arthritis, T12-L1, claimed as a low back disability, have not been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties VA satisfied its duties to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, VA must assist a claimant when he or she files a complete, or substantially complete, claim for benefits. This assistance involves notifying claimants of evidence that is necessary, or would be of assistance, in substantiating their claims, and providing notice that, if service connection is awarded, a disability rating and an effective date for the award of benefits will be assigned. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). VA should provide this notice prior to the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In this case, VA provided the Veteran notice regarding his claim for a bilateral eye disability in March 2010, prior to the initial adjudication of his claim in May 2010, and for his degenerative arthritis claim in September 2010, prior to the initial adjudication of his claim in December 2010. The content of the notice letters fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claims and told that he needed to identify the relevant time periods for treatment and the persons, agency, or company in possession of additional records to help decide his claims. He was also informed that VA would attempt to determine what additional information was needed to process his claims, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. Further, he was told how VA would assign a disability rating and an effective date if the claims were granted. As the content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the Board concludes that VA satisfied its duties to notify the Veteran. VA also satisfied its duty to assist the Veteran in the development of his claims. VA satisfied its duty to seek relevant records. The RO associated the Veteran's service treatment records (STRs), VA treatment records, and private treatment records with the claims file. The Board acknowledges that VA was unable to obtain records from a Wal-Mart Optical Center but notes that an April 2010 report of general information indicates that the Veteran had not been seen there since 2001 and that those records had been destroyed. The Veteran has not identified any other treatment records aside from those that are already of record; therefore, the Board concludes VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. As VA satisfied its duties to notify and assist the Veteran, the Board finds no further action is needed to comply with the provisions of 38 U.S.C.A. sections 5103(a) and 5103A or 38 C.F.R. section 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Merits of the Claim Service connection is granted if the record establishes that the Veteran suffers from a disability that resulted from an injury sustained or a disease contracted in the line of duty during active military service, or that a pre-existing condition was aggravated beyond its natural progression during service. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Diseases initially diagnosed after service may be service connected if the evidence, including that pertinent to service, shows they were incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming that the Veteran currently has the claimed disability or at least had it at some point since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA compensation may only be awarded to an applicant for a disability existing on the date of application, not for a past disability. Degmetich v. Brown, 8 Vet. App. 208, 211-212 (1995), aff'd, 104 F.3d 1328, 1332 (Fed. Cir. 1997). But see McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that the current disability requirement is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim, and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Arthritis and degenerative joint disease are considered chronic disabilities and will therefore be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from service. This presumption is, however, rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Establishing a showing of chronic disease in service, or within a presumptive period per § 3.307, requires a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. If chronicity (i.e., permanency) of disease or injury in service is not shown, or is legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate "(1) that a condition was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Id. at 307. The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When deciding a case, the Board must consider all evidence on both sides of an issue, base its decision on the entire record, and state the reasons or bases for any findings and conclusions on material issues of fact and law. 38 U.S.C.A. §§ 1154(a), 5107(b), 7104(a); 38 C.F.R. §§ 3.303(a), 3.304(b)(2), 3.307(b); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board must focus on the evidence necessary to substantiate a claim and what the evidence fails to show, and, in doing so, explain why any material evidence favorable to the claimant was rejected or given little weight. 38 U.S.C.A. § 7104(d)(1) (2013); Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). But see Dela Cruz v. Principi, 15 Vet. App. 143, 148-149 (2001) (finding that the Board need not discuss every piece of evidence in the record). If VA determines that a preponderance of the evidence supports a claim, or if the claim is in relative equipoise, the claimant shall prevail. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, the claim will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54. A. Bilateral eye disability. The Veteran contends that working as a welder during active service caused his eye disability, which requires him to wear glasses. He said he began noticing problems with his vision while welding on titanium contact bands during service, and within one year of separation he had to wear glasses. See July 2012 substantive appeal. A defect, such as refractive error, is considered by medical authorities to be of congenital origin and to have, by its very nature, pre-existed a claimant's military service. See VAOPGCPREC 82- 90 (July 18, 1990). VA's General Counsel has determined that, for VA compensation purposes, there is a legal distinction between a congenital or developmental "disease" and a congenital "defect." A congenital disease may be recognized as service-connected if the evidence as a whole shows in-service aggravation within the meaning of VA regulations. A congenital or developmental defect may not be service-connected in its own right, but service connection may be granted for additional disability due to disease or injury superimposed upon the defect during service. See 38 C.F.R. § 3.303(c); VAOPGCPREC 82-90. Therefore, to be service-connected, more than an in-service increase in severity is required. The evidence must also show that the congenital or developmental defect was subject to a superimposed disease or injury during military service that resulted in increased disability. VAOPGCPREC 82-90. The Board finds that the Veteran does not have a current bilateral eye disability. A review of the claims file reveals that he was examined for VA compensation purposes in May 2012 to determine the nature and etiology of his claimed bilateral eye disability. Following a thorough examination, the VA examiner determined that his external and internal eyes were normal bilaterally and that he did not have a visual field defect; any inflammatory eye conditions and/or injuries; conjunctivitis; or keratopathy. Although he has been diagnosed as having refractive error, such is considered a congenital or developmental defect and not a disease or injury under the applicable legislation. 38 C.F.R. § 3.303(c). Although the Veteran asserts that he sustained welder's keratitis during active service, the record does not corroborate his assertion and does not reveal evidence of any superimposed disease or injury during service. STRs reveal that he had a conjunctival infection in October 1967 and conjunctivitis in his right eye in March 1968, but are silent for a diagnosis of welder's keratitis. An October 1968 separation examination report reveals that his eyes were evaluated as clinically normal, his field of vision was normal, and his intraocular tension was normal. In a January 1969 statement of medical conditions, he indicated that his medical condition had not changed since his October 1968 separation examination; in a January 1969 report of medical history, he indicated he had worked for the prior three years as a solderer, was in good health, and had not had eye trouble. The Board recognizes that the Veteran asserted that he was not fully or properly examined during his October 1968 separation examination. See June 2010 notice of disagreement. The Veteran is not competent to determine whether he was adequately examined, as the issue is medically complex and requires specialized education and training. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). Additionally, an analysis of the examination report does not reveal any apparent inadequacies. Further, the record does not contain post-service medical evidence demonstrating a diagnosis of welder's keratitis. Post-service evidence includes private treatment records from Marian Eye Center dated from August 2006 through 2009, which reveal treatment for decreased vision but no diagnosis of or treatment for welder's keratitis. In January 1994, many decades after service, ammonia fumes were released in the Veteran's workplace and caused alkaline burns to both of his eyes, and employment records and private treatment records from Jefferson Memorial Hospital reveal that in September 1995 he had persistent eye complaints and was sent to an ophthalmologist, Dr. B. A September 1995 email reveals that Dr. B found he had eye dryness and possible damage to the tear ducts, which could have been caused by his exposure to ammonia in 1994, but that there was no definitive conclusion. In May 2012, the VA examiner did not confirm the diagnosis of welder's keratitis, as the report reveals the diagnosis was self-reported, undocumented, and not confirmed by a physical evaluation. No eye disability was diagnosed. The Veteran is competent to report a contemporary diagnosis or a diagnosis that is later confirmed by clinical findings. However, the Board does not find his self-reported diagnosis credible, as it is inconsistent with contemporaneous service treatment records, which demonstrate treatment for a variety of acute eye complaints that were not welder's keratitis, and inconsistent with the post-service evidence. 38 C.F.R. § 3.159(a)(2); Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1377 n.4; Kahana, 24 Vet. App. at 433. In sum, the record does not establish that the Veteran has a current eye disability for VA compensation purposes, to include any residuals of welder's keratitis. Refractive error alone, without superimposed disability, does not warrant service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability there can be no valid claim."). B. Degenerative arthritis, T12-L1. The Veteran has a current diagnosis of degenerative arthritis of the thoracolumbar spine. See August 2010 VA X-ray report, and May 2012 VA examination report. Regarding an in-service illness, injury, or event, the Veteran has asserted that he was injured in June 1966 while lifting weights and in 1968 when he hurt his back after slipping and falling, but that he did not seek medical attention for the 1968 injury because he was about to separate from the military. See August 2010 claim; September 2010 statement; July 2012 substantive appeal. The Board finds the Veteran competent to report the two in-service injuries, as he has personal knowledge and the injuries are capable of lay observation. See 38 C.F.R. § 3.159(a)(2); Davidson, 581 F.3d at 1315-16. The Board also finds the Veteran's description of the June 1966 injury credible and gives it great probative weight, as it is internally consistent and consistent with contemporaneous medical records. See Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). June 1966 STRs reveal that he complained of lower back pain after having picked up a heavy weight three days prior and that he was assessed with lumbosacral spine strain, instructed to apply heat, and placed on physical profile for one week. The Board does not, however, find his report of the 1968 slip and fall injury credible, as it is inconsistent with contemporaneous medical records and his self-reported history in January 1969. Id. He has variously reported that he slipped and fell while spraying undercoat on truck tires, or while walking up a ramp to bring a truck down that was sprayed with undercoat. See August 2010 claim; September 2010 statement. However, while the Veteran indicated that the 1968 slip and fall injury occurred close to when he separated from service in January 1969, contemporaneous STRs are silent for complaints of or treatment for a back injury or back pain; his spine was evaluated as clinically normal during his October 1968 separation examination; he indicated in a January 1969 statement of medical conditions that his medical condition had not changed between October 1968 and January 1969; and his January 1969 report of medical history is silent for any mention of the 1968 injury. Notably, the Veteran did in fact complain of other issues but did not indicate that he had any back problems. Moreover, in his January 1969 report of medical history he specifically denied having recurrent back pain and indicated that he had no injuries other than those noted in the report. The Board acknowledges that the Veteran essentially contends the STRs are silent for the 1968 injury because he did not seek treatment for or report the injury at the time since he was about the separate from the military. See September 2010 statement; July 2012 substantive appeal. However, he did report a slew of other issues to include foot trouble, and chronic and frequent colds. Given the inconsistency in the record, the Board gives his description of a 1968 accident little probative weight. 38 C.F.R. § 3.159(a)(2); Davidson, 581 F.3d at 1315-16; Jandreau, 492 F.3d at 1377 n.4; Kahana, 24 Vet. App. at 433. The Board also acknowledges the Veteran asserted that the October 1968 separation examination of his spine was incomplete. See July 2012 substantive appeal. The Board finds the Veteran not competent to determine whether a medical examination is or is not complete or adequate, as the issue requires specialized knowledge and experience. Jandreau, 492 F.3d at 1377 n.4; Kahana, 24 Vet. App. at 433. A review of the separation examination report reveals that it was filled out completely and included the Veteran's self-reported history, an objective clinical evaluation, as well as the physician's own summary and elaboration of pertinent data. Regarding a nexus, however, the record fails to establish that the Veteran's degenerative arthritis is etiologically related to his active service. In a May 2012 VA examination report, a VA examiner reviewed the claims file and opined that his degenerative arthritis, or joint degenerative joint disease, is less likely than not incurred in or caused by the claimed in-service injury, event, or illness, and is more likely (greater than 50% probability) a result of the normal aging process. The VA examiner stated that his current back condition is not caused by or a result of a single incident of lumbar strain in 1966 after picking up heavy objects and that lumbar strain does not create or cause the osteophytes found in the August 2010 radiograph. The VA examiner also indicated that it was acute and noted that no other STRs contain further reports of any back condition or need for treatment; that the Veteran denied any back pain during the October 1968 separation examination; and that he indicated he was in good health in his January 1969 separation report of medical history. The examiner also noted that in August 2010 the Veteran reported a history of being a caregiver for his wife for a number of years and that he did a lot of lifting to care for her. The Board finds this opinion adequate, as the VA examiner considered prior pertinent medical history and provided a reasoned medical explanation. Barr, 21 Vet. App. at 311; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board recognizes that the VA examiner did not explicitly mention the Veteran's report of a 1968 injury, but reiterates that it found the report not credible. The Board recognizes that the Veteran presented lay evidence of a nexus, as he believes that a 1968 accident caused his current degenerative arthritis, or degenerative joint disease. See August 2010 claim; October 2010 VA treatment record. The Board finds him not competent to provide a nexus in this case, however, as the issue is medically complex and requires specialized knowledge and training. Jandreau, 492 F.3d at 1377 n.4; Kahana, 24 Vet. App. at 433; see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating the need for supporting medical evidence in claim for rheumatic heart disease). The Board also finds the Veteran's degenerative arthritis, or degenerative joint disease, not service-connected on a presumptive basis. While arthritis, or degenerative joint disease, is considered a chronic disability under 38 C.F.R. § 3.309(a), its presumptive period is 1 year after separation from service. 38 C.F.R. §§ 3.307(a)(3). The record does not establish that the Veteran's degenerative arthritis was chronic in service, as in his January 1969 report of medical history he denied having had recurrent back pain and STRs are silent for a diagnosis of or treatment for symptoms of a back disability other than the 1966 weight-lifting injury. Further, the record does not establish that it manifested to a compensable degree within 1 year after his separation from service in January 1969, as post-service treatment records are silent until he sought treatment at a VA facility in August 2010. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges that where a chronic condition is not shown during service, service connection may still be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology or under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. While in June 1966 he complained of lower back pain, there is a lack of lay or medical evidence establishing continuity of symptomatology thereafter. As noted, the Veteran denied having recurrent back problems at separation and the record lacks allegations of continuous back symptoms since service. While lay evidence regarding continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence, in this case, the Veteran has not reported a history of continuous back problems that began after his separation from active service in January 1969. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the veteran has not complained of the disability at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson, 230 F.3d at 1333; see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). Further, the Board reiterates that the record lacks medical evidence of a nexus and that the Veteran is not competent to provide evidence of a nexus in this case, as the issue is medically complex and requires specialized knowledge and experience. Barr, 21 Vet. App. at 307. In sum, the competent, credible, and probative evidence of record does not establish that the Veteran has a current bilateral eye disability or degenerative arthritis that is etiologically related to his active service. ORDER Entitlement to service connection for a bilateral eye disability is denied. Entitlement to service connection for degenerative arthritis, T12-L1, claimed as a low back disability, is denied. ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs