Citation Nr: 1341669 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 07-19 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Togus Regional Office in Augusta, Maine THE ISSUES 1. Entitlement to service connection for bilateral cataracts, to include as secondary to Waldenstrom's macroglobulinemia (WM). 2. Entitlement to service connection for hypothyroidism, to include as secondary to WM and Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty form November 1967 to January 1969, and had verified service in the Air National Guard from December 1974 to December 1977, verified service in the Army National Guard from March 1979 to December 1984, and a subsequent period of unverified service in the Army National Guard. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2006 rating decision issued by the Department of Veterans Affairs (VA) Togus Regional Office (RO) in Augusta, Maine. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's bilateral cataracts are related to his service-connected WM. 2. Hypothyroidism was not present until more than one year following the Veteran's extended period of active duty, was not present during a period of active duty for training, is not etiologically related to any period of active duty or active duty for training, and was not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral cataracts as secondary to service-connected WM have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2006). 2. The criteria for service connection for hypothyroidism have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to the cataract claim, the record reflects that the Veteran has been provided all required notice, including notice with respect to the disability-rating and effective-date elements of the claim. As explained below, the evidence currently of record is sufficient to substantiate this claim. Therefore, no further development is required before the Board decides this claim. As for the hypothyroidism claim, the record reflects that the Veteran was provided all required notice in letters sent in January 2006, March 2006, and in Supplemental Statements of the Case issued in July 2007 and December 2012. Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also finds that VA has complied with its duty to assist the Veteran in the development of this claim. In this regard, VA obtained the Veteran's service treatment records and his post-service medical evidence. He was also provided with an appropriate VA examination in August 2013. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. General Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a Veteran served for at least 90 days during a period of war and manifests an endocrinopathy to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Presumptive service connection is available for certain diseases for veterans who were exposed to herbicides while serving on active military, naval or air service. A disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 will be considered to have been incurred in service even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309. The presumption does not apply to periods of active duty for training. See 38 C.F.R. §§ 3.307, 3.309; see also Biggins v. Derwinski, 1 Vet. App. 474 (1991). Service connection may also be granted for disability that is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During the pendency of this claim, 38 C.F.R. § 3.310 was amended, effective October 10, 2006. The amendments to this section are not liberalizing. Therefore, the Board will apply the former version of the regulation. 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; 38 C.F.R. § 3.102; 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. Bilateral Cataracts The Veteran claims that his currently diagnosed bilateral cataracts are due to his service-connected WM. Private treatment records document the Veteran's reports of experiencing visual symptomatology. These records show that he was prescribed Prednisone beginning in December 1993 to treat systemic vasculitis, to include in the right eye. An April 1996 private treatment record shows that the Veteran was later assessed with WM, for which the Prednisone prescription was continued. Service treatment records dated during the Veteran's service in the Army National Guard further reflect that the Veteran was prescribed Prednisone. On a September 1996 report of medical history, the examiner noted that the Veteran had been prescribed Prednisone, secondary to chemotherapy for macroglobulinemia. A January 1997 report of medical examination notes his history of intraocular implant in the right eye secondary to cataract surgery, which was secondary to Prednisone therapy. Most recently, the Veteran underwent a VA eye examination in August 2013, at which time the Veteran's electronic claims file was reviewed. The clinical examination resulted in a diagnosis of retinal vascular occlusion and pseudophakia. The examiner noted the Veteran's history of cataracts, which the Veteran claimed were due to WM. He stated that WM itself is not known for causing cataracts. However, the examiner noted the record included the January 1997 service report of medical examination reflecting a notation of intraocular implants secondary to cataract surgery that was secondary to Prednisone therapy. The examiner further noted that the Veteran was prescribed Prednisone beginning in December 1993 for vasculitis of an unknown etiology, although his WM had not yet been officially diagnosed. According to the examiner, Prednisone is known to cause certain types of cataracts. Although the examiner was unsure of the type of cataracts the Veteran had, when they were first diagnosed, and when they were removed, based on the record, he opined the Veteran's cataracts were caused by Prednisone. The record includes a nexus opinion from the August 2013 VA examiner relating the Veteran's surgically corrected cataracts to the treatment prescribed for his service-connected WM, namely Prednisone. The Board affords the August 2013 VA opinion high probative value as it was made after a review of the Veteran's medical history and medical assessments and is properly supported. There is no contrary medical opinion of record. Accordingly, service connection for bilateral cataracts is warranted on a secondary basis. Hypothyroidism The Veteran claims entitlement to service connection for his currently diagnosed hypothyroidism. He primarily argues that secondary service connection is warranted for his hypothyroidism because the disorder is due to his service-connected WM. In the alternative, the Veteran also contends that his hypothyroidism is due to in-service exposure to Agent Orange. As an initial matter, VA has conceded that the Veteran was exposed to herbicides while serving at Canadian Forces Bases Gagetown during periods of ACDUTRA in August 1984 and August 1985. Service treatment records are negative for evidence of hypothyroidism. Private treatment records indicate that the Veteran was diagnosed with hypothyroidism in December 2005. In August 2013, the Veteran underwent a VA examination to determine the etiology of his hypothyroidism. The examiner noted his review of the electronic claims file, and also noted the Veteran's assertion that his hypothyroidism is due to in-service Agent Orange exposure. The clinical examination confirmed the diagnosis of hypothyroidism. Based on the clinical findings and review of the record, the examiner opined that the Veteran's hypothyroidism was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner noted that hypothyroidism is not listed as a medical condition presumed to be due to Agent Orange exposure. He further stated that the disorder is not caused by WM. Ultimately, the examiner opined that the Veteran's hypothyroidism was less likely as not caused or aggravated by his WM or Agent Orange exposure. Given the foregoing, service connection for hypothyroidism is not warranted on either a presumptive or direct basis. The Veteran does not contend and the evidence does not show that he had hypothyroidism during any period of active duty or ACDUTRA or that it was manifested within one year after his extended period of active duty. In addition, the Board again notes that presumptive service connection may not be granted based on herbicide exposure during his periods of ACDUTRA service. See 38 C.F.R. §§ 3307, 3.309; see also Biggins, 1 Vet. App. 474. The evidence of record also does not include a competent medical opinion relating the Veteran's hypothyroidism to service, to include in-service exposure to Agent Orange. Indeed, the only medical opinion of record regarding this matter is the August 2013 VA opinion, which is against the claim. Unfortunately, the Veteran's claim for service connection also fails under a secondary theory of entitlement. Here, he claims that his hypothyroidism is related to his service-connected WM. In this regard, the Board finds that the August 2013 VA examiner's opinion provides the most probative evidence against this theory of entitlement. The August 2013 VA examiner thoroughly reviewed the record and completed a clinical examination of the Veteran, after which he essentially opined that the Veteran's hypothyroidism was not caused or aggravated by his service-connected WM. As the August 2013 VA examiner's opinion is based on a review of the pertinent medical history and is properly supported, it provides compelling evidence against the Veteran's claim that his hypothyroidism is secondary to his service-connected WM disability. The Veteran has not provided any competent evidence to rebut the opinion against his claim or otherwise diminish its probative weight. In addition to the medical evidence, the Board has considered the Veteran's statements that his hypothyroidism is related to in-service exposure to Agent Orange or, in the alternative, to his service-connected WM. Whether the hypothyroidism is related to Agent Orange exposure or the service-connected WM is a medical question. There is no indication that the Veteran possesses the expertise necessary to answer this question. As discussed above, the medical evidence addressing the question is against the claim. In summary, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypothyroidism. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See Gilbert, 1 Vet. App. at 53. (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral cataracts, as secondary to WM, is granted. Service connection for hypothyroidism, to include as secondary to WM and Agent Orange exposure, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs