Citation Nr: 1341145 Decision Date: 12/13/13 Archive Date: 12/20/13 DOCKET NO. 10-26 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss 3. Entitlement to service connection for a bilateral knee disorder, to include arthritis. 4. Entitlement to service connection for a bilateral eye disorder. 5. Entitlement to service connection for residuals of ruptured appendix. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from January 1966 to October 1969. This appeal to the Board of Veterans' Appeals (Board) is from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified at a videoconference hearing at the RO in May 2013, before the undersigned. A transcript of this hearing is associated with the Virtual VA claims file. The issues of entitlement to service connection for tinnitus, bilateral hearing loss and bilateral knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's only current bilateral eye abnormality is refractive error that is not subject to an in-service superimposed disease or injury. 2. The preponderance of the evidence is against a finding that the Veteran has had a current chronic disability related to residuals of a ruptured appendix. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral eye disorder have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303(c), 4.9 (2013). 2. A chronic appendix disability, claimed as residuals of a ruptured appendix, was not incurred in or aggravated by the Veteran's military service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2013). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a September 2008 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate service connection claims as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. This letter also advised him of how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. All required notice was sent prior to the initial adjudication of these issues in the October 2009 rating decision. VA has also satisfied the duty-to-assist for the Veteran's claims for service connection for a bilateral eye disability and residuals of a ruptured appendix. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's available service treatment records for his period of active duty service, and VA and identified private treatment records. There is no contention or indication of other outstanding records pertinent to the eye and appendix issues. The Veteran was not provided with a medical nexus opinion on the service-connection claims for a bilateral eye disability and residuals of a ruptured appendix, because the standards of the Court's decision in McLendon v. Nicholson, 20 Vet. App. 79 (2006), have not been met. See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). First, regarding the vision issue, any decreases in visual acuity, congenital or developmental defects, including refractive error of the eye, are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Thus, the Veteran's diminished visual acuity due to his diagnosed bilateral eye disability of myopic astigmatism with presbyopia is not subject to service-connection. Second, regarding the appendix, the evidence of record does not indicate that his claimed residuals of a ruptured appendix may be associated with his period of active duty. There is no competent evidence of in-service incurrence of a ruptured appendix in his service treatment records, since these records are silent for complaint, treatment and diagnoses of a ruptured appendix. Importantly, a ruptured appendix is not readily amenable to lay diagnosis or comment on etiology, in contrast with other conditions within the realm of lay observation and experience (e.g., a separated shoulder or broken arm, varicose veins, tinnitus (ringing in the ears), or pes planus (flat feet), etc.). See Colantonio v. Shinseki, 606 F.3d 1378, 1381-82 (Fed. Cir. 2010), citing Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010) (stating that medically competent evidence is not required in every case to "indicate" that the claimant's disability "may be associated" with his service). The Board is not obligated to request an opinion when there is no indication of a relevant disease or injury in service that could be associated with the currently claimed disability. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Indeed, the Veteran's representative stated at the hearing that the Veteran's appendix did not rupture until after separation, precluding the possibility of in-service incurrence of a disability related to a ruptured appendix. See May 2013 Board Hearing Transcript, at 4. Moreover, the Board reviewed the list of chronic diseases under 38 C.F.R. § 3.309(a) (2013) and there are no presumptively chronic disabilities listed that are associated with the appendix or any post-appendicitis gangrene infection, as alleged. Without meeting the preliminary element of service connection for a current disability, there is no reasonable possibility of substantiating his claims for a bilateral eye disability and residuals of a ruptured appendix. As such, a remand for VA examination and medical nexus opinion is not warranted. See Waters, 601 F.3d at 1278 (finding that a conclusory generalized statement regarding the nexus between a disability and service is not enough to entitle a veteran to a medical examination under § 5103A(d)(2)(B)). The Board concludes that all available records and medical evidence has been obtained in order to make an adequate determination as to these claims. Therefore, the Board finds that VA has complied with the duty-to-assist requirements for these claims. 38 U.S.C.A. § 5103A. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1137; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The conditions at issue (eye and appendix disorders) are not among those listed as a "chronic disease" under 38 C.F.R. § 3.309(a). Therefore, the Board is not required to consider whether the evidence of record establishes chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) in this instance. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). A. Service Connection for a Bilateral Eye Disorder The Veteran asserts that he developed poor vision during service, such that he had to wear glasses after separation. He attributes his current myopic astigmatism and presbyopia to working in poor fluorescent lighting in his military occupational specialty (MOS) as a personnel clerk. May 2013 Board Hearing Transcript, at 9-10. However, after a careful review of the Veteran's claims file the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a bilateral eye condition. For purposes of entitlement to benefits, the law provides that refractive error of the eyes is a developmental defect and not a disease or injury within the meaning of applicable legislation. In the absence of superimposed disease or injury, VA regulations specifically prohibit service connection. Service connection is not granted for refractive error of the eyes, including myopia, presbyopia and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9; VAOPGCPREC 82-90 (July 18, 1990). Thus, any diminished visual acuity is not subject to service-connection. Here, there is no evidence of in-service incurrence of any chronic eye disability, aside from refractive error. For instance, he entered service with 20/70 distant vision in the right eye and 20/100 distant vision in the left eye. See December 1965 pre-induction report of medical examination. His physical profile was "1" for eyes and not defects or diagnoses were noted. Id. Subsequent service treatment records show continued in-service treatment for his refractive error, such as September 1966 and September 1968 records showing he was tested and fitted for spectacles to correct myopia. At his separation examination in September 1969, distant vision testing revealed 20/200 vision bilaterally, with the right and left eye corrected vision of 20/30 and 20/20, respectively. Under section #74, summary of defects and diagnoses, he was noted to have "[d]effective vision OU 20/200 corrected to OD 20/30 OS 20/20 by lens. NCD [not considered disabling]." He was found to be physically qualified for release from active duty. In sum, his service treatment records are unremarkable for any treatment or diagnoses of any other eye disability, let alone as due to in-service exposure to fluorescent lighting. The Board acknowledges that his separation examination assessed subnormal vision, based upon visual acuity testing. However, as noted above, refractive error is a developmental defect and not subject to compensation. VA medical records confirm the Veteran has been diagnosed with bilateral refractive error of the eyes. Specifically, a September 2010 VA treating optometrist diagnosed the Veteran with bilateral compound myopic astigmatism with presbyopia. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C.A. § 1110. The Board acknowledges that the United States Court of Appeals for Veterans Claims (Court) has held in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. The evidence of the record shows that the Veteran has never been diagnosed with any residuals of eye trauma, other than refractive error, from fluorescent lighting since he filed his claim for entitlement to service connection in August 2008. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (holding "when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency" (emphasis added)). The only disability identified during the applicable time period is a refractive error, namely myopic astigmatism with presbyopia, as noted above. However, as discussed above, service connection may not be granted for refractive error of the eyes. The Board acknowledges his competency to report symptoms related to his eyes, particularly needing glasses and having floaters in his eyes, as these relate to his vision, as that comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, even accepting his uncontradicted lay symptoms of his bilateral eye problems since service as both competent and credible, these lay statements are nonetheless inconsequential. In his personal hearing testimony, he only admitted to having forms of refractive error. See May 2013 Board Hearing Transcript, at 10. Other than the diagnosed refractive error, he has not claimed or identified any bilateral eye disabilities related to service, especially as due to eye damage from fluorescent lighting. Despite the Veteran's contentions that his eye disabilities are not congenital, but instead related to the environment he encountered during active service, the record does not show that he is competent to describe the origins of his bilateral eye disorders. Further, even if he were competent, VA does not recognize refractive error of the eyes as a disability subject to compensation. Additionally, service treatment records and VA treatment records do not show that the Veteran has any current eye disorder that resulted from a superimposed injury or disease to a defect such as refractive error. VAOPGCPREC 82-90 (July 18, 1990). As such, entitlement to service connection must be denied due to lack of a present diagnosis. Indeed, the Veteran must show the existence of a current disability, such as is compensable under VA regulations. See Shedden, 381 F.3d at 1167. The Board notes that the Veteran submitted an internet article titled, "The Effects of Fluorescent Light on the Ocular Heath of Persons with Pre-existing Eye Pathologies." This textual evidence is too general (not specific to this Veteran) and inconclusive on its own to establish a link between the Veteran's eye problems and his exposure to fluorescent light in service. Even if this textual evidence "indicates" a relationship to service a remand for a VA examination is not necessary because the Veteran has only been noted to have refractive error of the eye and this is not subject to VA compensation. Thus, service connection for a bilateral eye disorder must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a bilateral eye disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. B. Residuals of a Ruptured Appendix The Veteran contends that he has a chronic disability as due to claimed residuals of a ruptured appendix. He asserts that his appendix ruptured at a VA hospital and "manifested gangrene and other problems and residuals" within one year of separation from active duty, such that he asserts he is entitled to presumptive service connection. See May 2013 Board Hearing Transcript, at 15. The preponderance of the evidence shows that the Veteran's claim fails to meet the preliminary requirement for service connection, namely showing of a current disability. Moreover, a review of his VA and private treatment records does not otherwise reveal any chronic disability of an appendix or residuals of a ruptured appendix, at any time since his claim was filed in August 2008 or a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability. See McClain, 21 Vet. App. at 321; Romanowsky, 26 Vet. App. at 294. Although the Veteran is competent to report having experienced pain a continuity of abdominal pain symptoms since service, nonetheless, he is not competent to ascribe these symptoms to a particular diagnosis of any chronic disability related to a ruptured appendix. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); 38 C.F.R. § 3.159(a)(2). Rather, specialized medical expertise as well as independent physical evaluation and diagnostic testing, is required to diagnose a chronic disability concerning the alleged rupture of an internal organ, such as the appendix. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (noting that certain disabilities, such as rheumatic fever, are not conditions capable of lay diagnosis). While the Veteran is a doctor of chiropractic, the Board finds that the Veteran is simply not competent to self-diagnose any chronic disability related to his appendix or its rupture, because this requires medical expertise he does not possess. See May 2013 Board Hearing Transcript, at 20. Since the Board does not find the Veteran's lay statements to be competent to establish the missing element of a present disability for the claimed residuals of a ruptured appendix, there is no need to consider the credibility of his lay statements in this regard. Fundamental to the claim is that the Veteran first has to establish she has a chronic disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability there can be no valid claim."); see also Degmetich v. Brown, 104 F.3d 1328, 1332-33 (1997) (holding that basic service connection under 38 U.S.C. § 1131 requires a "presently existing disability"). In this regard at the May 2013 hearing, the Veteran responded "No, sir" to a question asking if he has any current residuals from the appendix rupture. See May 2013 Board Hearing Transcript, at 22-23. Since the time the Veteran filed his claim in August 2008 (or recently beforehand) and/or at any time during the pendency of the appeal, the preponderance of the evidence shows he has not had a chronic appendix disability, as due to his claimed residuals of a ruptured appendix or otherwise. Even assuming for the sake of argument that the Veteran does have a current disability of residuals of a ruptured appendix, nonetheless, his primary theory of entitlement on the basis of presumptive service-connection for a chronic disease that manifested to a degree of 10 percent or more within 1 year from the date of separation from service does not have merit. That is, the applicable regulation for presumptive service connection for chronic diseases, found at 38 C.F.R. § 3.309(a) does not list any diseases of the appendix or other residuals of a ruptured appendix. Because the Veteran's claimed disability is not among these listed diseases, he is necessarily ineligible for presumptive service connection for chronic diseases. In addition, there is simply no contention or indication in the record that the Veteran ruptured his appendix during service or had any appendix-related symptoms or manifestations during service. The Board notes that his service treatment records are unremarkable for any treatment or diagnosis of in-service injury or disease of his appendix. Moreover, the Veteran has not provided any lay statements supporting the possibility of in-service incurrence. The Veteran's representative stated at the hearing that there is no evidence that he had a ruptured appendix or appendectomy in service, but rather that he had it "shortly after getting out, roughly within one year." See May 2013 Board Hearing Transcript, at 15. He also testified that during active duty, he did not remember or ignored any symptomatology of pain in the abdominal quadrant where his appendix was or any other gastrointestinal abnormalities that he believed related to the gangrene or the appendicitis. Id. at 16. To the extent that the Veteran has denied both an in-service rupture of his appendix and in-service manifestation of symptoms, this precludes the possibility of in-service incurrence of his claimed residuals of a ruptured appendix. Because there is no diagnosis or other competent and credible evidence of a chronic disability related to a ruptured appendix, there is no possible means of attributing such disorder to his active duty military service. The Board concludes that the preponderance of the evidence does not support the claim for service connection. As such, this issue is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a bilateral eye disorder is denied. Service connection for residuals of a ruptured appendix is denied. REMAND The Veteran contends he developed bilateral hearing loss and tinnitus from noise exposure to weapons fire, without hearing protection, while serving on a competitive pistol team for the U.S. Navy. He further asserts that he developed bilateral knee problems, including arthritis, from twisting his knees in the mud from a heavy downpour, while participating in a horseshoe-pitching tournament on a rainy day. See Veteran's April 2013 personal statements; and see May 2013 Board Hearing Transcript, at 5-6, 11-12. Notably, arthritis is listed as a "chronic disease" under 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) applies. See Walker, 708 F.3d at 1338. Although the Veteran's service treatment records are unremarkable for the injuries alleged above, he has provided competent lay evidence of in-service injuries to his ears through acoustic trauma (gun fire) and to his knees through physical trauma (falling). See Jandreau, 492 F.3d at 1377; Barr, 21 Vet. App. at 310; 38 C.F.R. § 3.159(a)(2). The Veteran has also competently asserted a continuity of symptoms relating to hearing loss, ringing in his ears, and knee pain since his alleged in-service injuries. See May 2013 Board Hearing Transcript, at 8, 13-14. Therefore, the Board finds a remand is necessary for a VA examination and opinion on whether the Veteran's current bilateral sensorineural hearing loss, tinnitus and bilateral knee arthritis disabilities are, respectively, etiologically linked to service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Any additional VA treatment records should also be obtained, as the Veteran has submitted recent medical records from the VA Medical Center (VAMC) in Huntington, WV, dated from August through December 2010, for his knees and hearing loss. Accordingly, the case is REMANDED for the following actions: 1. First, obtain all outstanding, relevant VA treatment records from Huntington, West Virginia VAMC or any other VA facility, dated since December 2010, to include orthopedic treatment of the knees and audiological treatment for his ears. 2. After completing the requested development in action paragraph #1, schedule the Veteran for a VA examination on the nature and etiology of any current bilateral knee disability, including arthritis. The claims file, to include any electronic records, must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests should be performed and the results reported. After reviewing the file and conducting necessary testing, the examiner should identify all disabilities related to the Veteran's claimed bilateral knee disability, specifically including whether the Veteran has arthritis. The examiner should then render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that any current knee disability is causally related to his military service or if arthritis was manifested to a compensable degree within one year of his separation from service in October 1969. In answering this question, the examiner should consider and discuss the Veteran's report of a continuity of symptomatology of knee disorders since service. A comprehensive explanation, to include reference to relevant evidence of record as appropriate, should be provided for all opinions expressed. If the examiner is unable to provide a requested opinion, a supporting rationale must be given concerning why the opinion cannot be provided. 3. After completing the requested development in action paragraph #1, schedule the Veteran for a VA examination on the nature and etiology of his claimed bilateral hearing loss and tinnitus. The claims file, to include any electronic records, must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests should be performed and the results reported. After reviewing the file and conducting audiometric testing, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that any current hearing loss and tinnitus are causally related to his military service, to include his reported in-service noise exposure. In answering this question, the examiner should consider and discuss the Veteran's report of a continuity of symptomatology of these disorders since service. A comprehensive rationale must be provided for all opinions rendered. In providing a rationale, the examiner must not rely on the fact that the Veteran's hearing was within "normal" limits for VA purposes, or non-ratable as per 38 C.F.R. § 3.385, at the time of separation from service. Such an opinion will not be considered adequate for rating purposes. If the examiner is unable to provide a requested opinion, a supporting rationale must be given concerning why the opinion cannot be provided. 4. Readjudicate the remaining issue on appeal, in light of all evidence of record. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford a reasonable opportunity to respond. Return the case to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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. 2012). ______________________________________________ Paul Sorisio Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs