Citation Nr: 1340284 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 09-47 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to service connection for an eye disability. 4. Entitlement to service connection for hepatitis C. 5. Entitlement to service connection for hepatitis B. 6. Entitlement to a compensable evaluation for urethritis. 7. Entitlement to nonservice-connected pension from June 1, 2008. REPRESENTATION Veteran represented by: Mississippi Veterans Affairs Commission WITNESSES AT HEARING ON APPEAL Veteran and former Spouse ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to May 1975. The Veteran's personnel records indicate an overseas tour in Okinawa. There is no indication of service in Vietnam contained in the record; with the exception of the Veteran's unverified contentions. A response from the National Personnel Records Center (NPRC) indicates that there is no evidence to substantiate that the Veteran served in Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In May 2010, the Veteran had an informal conference with a Decision Review Officer at the Jackson RO. A report of that proceeding is of record. The Veteran failed to report for a videoconference hearing before the Board in April 2013. He subsequently sent a statement in April 2013 indicating that he could not report to the hearing and to forward his claims to the Board. Accordingly, his request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2013). In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the claim. In this case, additional evidence was associated with the claims file following a September 1975 denial for a psychiatric disorder - namely, official service department records received at the RO in August 2011 - that is relevant to the Veteran's present claim on appeal. Such records consist of additional service personnel records not previously associated with the claims file that were received from the National Personnel Records Center. More specifically, these records include the additional details concerning the Veteran's separation from service, information about where he served during service (importantly no indication of Vietnam service), details of a drug related arrest just prior to his separation from service and other information concerning the circumstances of the Veteran's service and separation. The Board finds that these additional service records are relevant to the Veteran's claim of entitlement to service connection for a psychiatric disorder. Accordingly, as, pursuant to 38 C.F.R. § 3.156(c), these additional service records received require reconsideration of the claim for service connection. Thus, analysis of the claim in light of 38 C.F.R. § 3.156(a) is unnecessary. The issues of entitlement to service connection for an acquired psychiatric disorder, hepatitis B, and hepatitis C are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A chronic back disability did not have its clinical onset in service and is not otherwise related to active duty. 2. A chronic eye disability did not have its clinical onset in service and is not otherwise related to active duty. 3. The preponderance of the evidence indicates that the Veteran's urethritis has been asymptomatic for the entirety of the relevant period. 4. From June 1, 2008, the Veteran's annualized countable annual income for VA pension purposes exceeded the maximum annual income limit for receipt of payment for nonservice-connected disability pension benefits. CONCLUSIONS OF LAW 1. A back disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. An eye disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). 3. The criteria for a compensable evaluation for urethritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7512 (2013). 4. Payment of pension benefits from June 1, 2008 is not warranted. 38 U.S.C.A. §§ 1501 , 1503, 5107, 1521 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.3 , 3.21, 3.23, 3.271, 3.272, 3.273 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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. Accordingly, 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Here, the Veteran was sent a letter in October 2008 that fully addressed all notice elements regarding the Veteran's increased rating and service connection claims and was issued prior to the initial RO decision in this matter. The letters 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. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. The RO provided the Veteran notice regarding his claim for pension. In February 2007, September 2009 and September 2010, it advised him that pension benefits are reduced by gross countable family income, what counted as income and also provided eligibility Verification Report and Medical Expense Report forms to submit. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him 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. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the service treatment records are silent as to any complaints or treatment for the Veteran's eyes and back and there is no credible lay evidence of pertinent disability in service. The post-service evidence does not indicate any current complaints or treatment referable to the eyes and back until several years following separation. The record contains no competent evidence suggesting a causal relationship between the current disability and active service or any service-connected disability. For all of these reasons, the evidence does not indicate that the claimed disabilities may be related to active service such as to require an examination, even under the low threshold of McLendon. The Board additionally notes that the Veteran has claimed that eye disability results from medicine received at the VA Medical Center. The RO provided the Veteran a letter dated May 2010 which requested further information if he would like to claim service connection for an eye condition under 38 U.S.C. § 1151; to supply additional information concerning the circumstances of the VA Medical Center's negligence. There was no response from the Veteran and, thus, the RO continued the Veteran's claim under a theory of direct service connection. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is a two-way street). As the Veteran has not cooperated with the development of his claim on the basis of 38 U.S.C. § 1151, the Board finds further remand or referral for service connection under this theory to be futile. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. 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). Regulations and Analysis Service Connection, Back Disability and Eye Disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In evaluating the claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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 facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (i.e., when 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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts historically had held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2002); see also 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), citing Gilbert, 1 Vet. App. at 54. The Veteran contends that he injured his back in-service during basic training. Turning to the evidence of record, the Veteran's service treatment records indicate no treatment for his eyes or his back. The Veteran's separation medical examination in May 1975 indicate that his eyes and spine were normal at discharge. In June 1976, the Veteran applied for VA disability for hearing loss, urethritis and nerves. A March 2004 treatment note from the Mississippi Department of Corrections at Parchman indicates that the Veteran had a herniated disc for ten years; although he denied any pain at that time. An October 2006 treatment note indicates that the Veteran was establishing care at the Biloxi VA Medical Center. He complained of back pain at that time. The Veteran applied for entitlement to service connection in October 2007 for his back condition and his eye condition. The Veteran contended that he injured his back in basic training while on active duty. In an October 2008 VA Form 21-4142, the Veteran indicated that he was treated by medics when his back would go out during active service and two or three days of lying prone would fix the problem. A November 2008 VA treatment note indicates that the Veteran had a cataract in the right eye. A November 2008 VA treatment note indicates that the provider believed the Veteran's uncontrolled bipolar mania led him to severely injure his back as he was unaware of the pain in his back as he was working. An April 2009 VA treatment note indicates that the Veteran reported he injured his back while in basic training. He worked for most of his adult life as a building contractor. The Veteran had a VA aid and attendance examination in March 2010. The examiner noted that the Veteran had no eye complaints or eye injuries. Thus, no eye worksheet was required. The examiner diagnosed the Veteran with degenerative joint disease of the lumbar spine, status post lumbar surgery in 2007. A November 2009 VA treatment note indicates that the Veteran worked off and on in construction for 40 years and also at a car dealership. The provider indicated that in May 2009, the Veteran tripped on a board and tore his thecal sac and his right sciatic nerve. The provider also indicated that the Veteran was going to shoot himself and then he got a call to schedule emergency back surgery at the VA in November 2007. The Board finds that a preponderance of the evidence is against a finding that the disabilities are related to active service, any incident of active service or is secondary to any service-connected disability. The Board notes that the Veteran apparently had not back problems or eye problems at his separation examination, and the clinical record reveals no treatment or diagnosis for such problems for many years after discharge. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board notes the very recently decided Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the decision, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). In this case, the claimed back and eye disabilities are not decidedly chronic disabilities. Thus, a discussion of whether there has been continuity of symptomatology since service for these disabilities cannot stand as a basis for an award of service connection in this case. The Veteran has indicated a continuity of symptomatology of back problems since service, which were submitted in connection with his claim for benefits. However, the record reflects a significant gap of over 30 years between discharge and evidence of his first treatment or complaints of back problems and/or cataracts or other eye problems. He additionally filed a VA benefits claim in 1976 without any mention of back problems or eye problems. Moreover, the Veteran has reported that he worked in construction for 30 years post-service, an occupation which would conceivably be physically demanding. The Board does not find claims that back and eye problems existed in service and/or continued since that time to be credible. There is no indication that the Veteran had treatment for a back disability in his service records; although the Veteran now contends that he had significant treatment with rest for his back in-service. In addition, the March 2004 treatment from the Mississippi Department of Corrections indicates that the Veteran's herniated disc had been present for the previous ten years, not the previous thirty years. Thus, the Board finds the Veteran's contentions concerning an in-service back injury with treatment at that time to not be credible. The Board additionally notes that the Veteran has made no attempt to establish an in-service event or injury which resulted in a current eye disability. Additionally, the Veteran lacks the necessary medical expertise to say that a back disability or eye disability identified by objective evidence long after service is the result of in-service trauma as opposed to a post-service event or process. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, taking into account all of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's back and eye disabilities are related to active service, to any incident of active service, or are secondary to any service-connected disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Compensable Rating, Urethritis Service connection for urethritis was established as of May 1975. The Veteran filed the instant claim for an increased rating in November 2008. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's service-connected urethritis has been rated as noncompensable by the RO under the provisions of Diagnostic Code 7599-7512 (by analogy). 38 C.F.R. § 4.115b. Diagnostic Code 7512 pertains to chronic cystitis to include interstitial and all etiologies, infectious and noninfectious, which is to be rated as voiding dysfunction. Voiding dysfunction is rated based on urine leakage, frequency, or obstructed voiding. The particular voiding condition is to be rated as urine leakage, urinary frequency, or obstructed voiding. Urinary leakage requiring the wearing of absorbent materials which must be changed less than 2 times per day warrants a 20 percent rating. Urinary leakage which requires the use of absorbent materials which must be changed two to four times a day warrants a 40 percent rating. Continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence warrants a maximum rating of 60 percent when it requires the use of an appliance or the wearing of absorbent materials that must be changed more than 4 times per day. 38 C.F.R. § 4.115a. Turning to the evidence of record, the Veteran was afforded a VA examination in April 2008. The Veteran indicated that he was asymptomatic and had no evidence of urethritis at that time. He specifically denied any history of incontinence or the use of absorbent pads. He also denied any treatment or any effect on his activities of daily living. The examiner assessed the Veteran as having nonspecific urethritis which had resolved with no current objective findings. The Veteran was afforded an additional VA examination in July 2010. The examiner indicated that there is no indication of urethritis in the treatment records reviewed by the examiner. Additionally, there was no urethritis over the last several years and no treatment. The Veteran denied urinary complaints, nocturia and incontinence. The examiner indicated that the Veteran's nonspecific urethritis had resolved and there were no objective findings at that time. VA treatment records do not reflect complaints or treatment for the Veteran's service connected urethritis. The Board finds that the preponderance of the evidence indicates that the Veteran's urethritis does not warrant a compensable rating at any time during the relevant period. There is no symptomatology, treatment or effects on daily living from the urethritis and the Veteran has claimed no ill effects from his service-connected disability. He has specifically denied incontinence or the necessity of wearing pads for urine leakage. 38 C.F.R. § 4.115a. Thus, the Board finds that the Veteran's claim for a compensable rating must be denied. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2013). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that neither the first nor second Thun element is satisfied here. Specifically, the Veteran's service-connected urethritis has no current symptomatology. With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present. In particular, the Veteran does not contend, and the evidence of record does not suggest, that his urethritis has caused him to be unemployable or has resulted in any hospitalizations. The Board finds, therefore, that the Veteran's service-connected urethritis does not result in marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Thus, even if his disability picture was exceptional or unusual, referral would not be warranted. Pension entitlement from June 1, 2008 Pursuant to 38 U.S.C.A. § 1521(a), improved (nonservice-connected) pension is a benefit payable by VA to a Veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of the Veteran's willful misconduct. A Veteran who meets the wartime service requirements will be paid the maximum rate of pension, reduced by the amount of his countable income. 38 U.S.C.A. § 1521; 38 C.F.R. §§ 3.23, 3.273. Payments of any kind from any source (for example, life insurance proceeds) shall be counted as income during the 12-month annualization period in which received, unless specifically excluded. 38 C.F.R. § 3.271. Social Security benefits are not specifically excluded under 38 C.F.R. § 3.272. Such income is therefore included as countable income. For the purpose of determining initial entitlement, the monthly rate of pension shall be computed by reducing the applicable maximum annual pension rate (MAPR) by the countable income on the effective date of entitlement and dividing the remainder by 12. 38 C.F.R. § 3.273(a). Nonrecurring income (income received on a one-time basis) will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(c). Basic entitlement to such pension exists if, among other things, the appellant's income is not in excess of the MAPR specified in 38 C.F.R. § 3.23. 38 U.S.C.A. § 1521(a), (b); 38 C.F.R. § 3.3(a)(3). The MAPR is published in Appendix B of VA Manual M21-1 (M21-1) and is to be given the same force and effect as published in VA regulations. 38 C.F.R. § 3.21. Effective December 1, 2007, the MAPR for a Veteran with no dependents was $11,181. Effective December 1, 2008, December 1, 2009 and December 1, 2010, the MAPR for a Veteran with no dependents was $11,830, and effective December 1, 2011, such MAPR was $12,256. See 38 C.F.R. § 3.23(a)(5); M21-1, Part I, Appendix B. Medical expenses in excess of five percent of the MAPR, which have been paid, may be excluded from an individual's income for the same 12-month annualization period to the extent they were paid. 38 C.F.R. § 3.272(g)(1)(iii). Five percent of the MAPR for the year beginning December 1, 2007 is $559. Five percent of the MAPR for the years beginning December 1, 2008, December 1, 2009, and December 1, 2010, is $591, and for the year beginning December 1, 2011 it is $612. The Veteran contends that his income from the Social Security Administration should not be counted as income as a portion of the payment is garnished for back child support. The Veteran submitted an application for pension received at the RO on March 30, 2007. He indicated that he had no income and no dependents. A permanent and total disability rating for pension purposes was allowed by a June 2007 rating decision, effective March 30, 2007. A May 2008 report of contact indicates that the Veteran was receiving Social Security disability payments. In a May 2008 pension eligibility report filed by the Veteran, he indicated that he had no medical expenses. He also indicated that he had one child not in his custody for which a portion of his Social Security disability was garnished. A May 2008 letter from the Social Security Administration indicates that a portion of the Veteran's Social Security benefits was garnished for child support and/or alimony. In a May 2008 letter decision, the RO indicated that the Veteran's pension was discontinued as of June 1, 2008 as he exceeded the limitation of income to receive such benefit. An income report from the Social Security Administration indicates payments received from October 2007. The Veteran submitted an additional income verification report in September 2010 which indicates that he had no medical bills and he received monies consistent with that reported by the Social Security Administration. The Board additionally notes that the Veteran received disability payments at the 10 percent rating for tinnitus from October 17, 2007. The Board notes that the Veteran's child has not been counted as a dependent for VA purposes. However, considering the time period until August 1, 2009 when she turned 18 (her birth certificate is of record in the claims folder), the Veteran's income was still in excess the entirety of the period, even if considering the pension limits with one dependent. Thus, the Board finds that the Veteran's income exceeds the maximum amount allowed to receive a non-service connected pension from June 1, 2008. Regarding the Veteran's feelings that he should be paid more pension as a matter of policy, and so that he can help his financial situation, the Board notes that the MAPRs are legally binding, and that the Board must apply the law as it exists to the facts of the case. Regarding his apparent desire that Social Security income not be counted, income from Social Security is counted for VA pension benefit purposes, by law, based on policy considerations. As indicated above, a certain amount of income from Social Security and other sources is permissible, while still permitting the payment of VA pension benefits, but those VA pension benefits must be offset by countable income from non-VA sources. Concerning the Veteran's argument that his garnished Social Security wages should not be counted as income, there is no provision in the law for excluding the garnished amt for countable income. See 38 U.S.C.A. § 501, 1503 (2002); 38 C.F.R. § 3.271, 3.272 (2013). The Veteran is advised that should his income change in the future or if he incurs significant out-of-pocket medical expenses, he can submit additional evidence and his entitlement to nonservice-connected pension benefits will be considered in light of the facts then of record. ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for an eye disability is denied. Entitlement to a compensable evaluation for urethritis is denied Payment to nonservice-connected pension from June 1, 2008 is not warranted. REMAND The Veteran's service treatment records indicate multiple records of treatment for venereal disease. A February 1975 psychiatric evaluation indicates that the Veteran also had a history of drug abuse overseas. The impression was anxiety, minimal, with no evidence of current drug abuse. However, arrest records associated with the Veteran's personnel records indicate that he was arrested for marijuana possession. Hepatitis Concerning the Veteran's claim for service connection for hepatitis, the Veteran claims that he has hepatitis B and hepatitis C that is related to service. In a January 2011 statement he claimed that his hepatitis is due either to the water in Vietnam, Guam and Okinawa (where he claims that he served) or Agent Orange exposure. The Board notes in this regard that there is no objective evidence that the Veteran stepped foot in Vietnam or was otherwise exposed to Agent Orange. A VA treatment record dated August 1976 indicates that the Veteran had possible hepatitis as he had been jaundiced for three days. The provider suspected type B. An October 2005 psychological report by a private provider indicates that the Veteran reported he contracted hepatitis C while incarcerated in the recent past. The Veteran had a VA history and physical in January 2007. His reported risk factors include IV drug abuse of heroin and cocaine, snorting cocaine, tattoos, left ear piercing, war exposure to blood in the Vietnam area, air gun inoculations in 1972 and surgeries of the left leg. The Veteran was diagnosed with hepatitis C. The Veteran was afforded a VA examination in November 2009. The Veteran reported risk factors of tattoos, body piercings, IV drug abuse and multiple sexual partners. The examiner reported that testing in October 2006 indicated the hepatitis C antibody reactive and the hepatitis B core antibody reactive. The examiner indicated that it is less likely than not that the Veteran's hepatitis C is related to his service-connected nonspecific urethritis. The Board finds that the Veteran should be afforded a VA examination to determine if the Veteran has either hepatitis B or C which is related to service or risk factors reported in-service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board additionally notes that no hepatitis risk questionnaire has been returned by the Veteran. He should be supplied with such document and asked to provide the information required therein. Psychiatric The Veteran's VA treatment records indicate psychiatric diagnoses of depressive disorder and bipolar disorder. The Board notes initially that the Veteran has not been provided a VA examination to determine if the Veteran has a current psychiatric disability which is related to service, specifically the in-service psychiatric treatment note indicating that the Veteran had anxiety during service. Thus, the Veteran should be afforded a VA psychiatric examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Request the Veteran complete and return a "Risk Factors for Hepatitis Questionnaire." 2. Schedule the Veteran for a VA liver examination. The claims folder and access to any virtual records must be provided to the examiner. A clinical interview and examination with any indicated medical testing must be conducted. If hepatitis B or C is diagnosed, the examiner should indicate whether it is more likely, less likely, or at least as likely as not that it had its clinical onset in service or is otherwise related to active service. The examiner should take into account the inservice and post service risk factors described by the Veteran (and outlined in this Remand document). The term, "at least as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the examiner's conclusion as it is to find against it. The opinion must be supported by a clear rationale with appropriate citations to the record and/or clinical studies. The examiner is advised that the Veteran is competent to report his symptoms and risk factors. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so and cannot rely solely upon an absence of contemporaneous medical treatment. 3. Schedule the Veteran for a VA psychiatric examination. The claims folder and access to any virtual records must be provided to the examiner. A clinical interview and examination with any indicated medical testing must be conducted. For any psychiatric disability diagnosed, the examiner should indicate whether it is more likely, less likely, or at least as likely as not that it had its clinical onset in service or is otherwise related to active service. The term, "at least as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the examiner's conclusion as it is to find against it. The opinion must be supported by a clear rationale. 4. Thereafter, re-adjudicate the claims for service connection. If the claims remain denied, the Veteran should be issued a supplemental statement of the case, and be given an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs