Citation Nr: 1342328	
Decision Date: 12/20/13    Archive Date: 12/31/13

DOCKET NO.  04-28 476	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Fort Harrison, Montana


THE ISSUES

1.  Entitlement to service connection for a bilateral eye disability.

2.  Entitlement to service connection for residuals of tuberculosis exposure.


WITNESS AT HEARINGS ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. Elwood, Associate Counsel





INTRODUCTION

The Veteran served on active duty from May 1978 to May 1998.  He received the Joint Service Commendation Medal.

These matters initially came before the Board of Veterans' Appeals (Board) from an August 2002 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Washington, DC.  In that decision, the RO denied entitlement to service connection for a bilateral eye disability and tuberculosis exposure.  The RO in Fort Harrison, Montana currently has jurisdiction over the Veteran's claims.

The Veteran testified before a Veterans Law Judge (VLJ) at a September 2005 hearing at the RO (Travel Board hearing).  A transcript of the hearing has been associated with his claims folder.  That VLJ has retired and is unable to participate in any further adjudication.

In January 2007, February 2010, August 2011, and March 2013 the Board remanded these matters for further development and to schedule the Veteran for a new Board hearing before a VLJ.

The Veteran testified before the undersigned at a June 2013 hearing at the RO (Travel Board hearing).  A transcript of the hearing has been associated with his claims folder.  

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims.  The documents in this file have been reviewed and considered as part of this appeal.

The issue of entitlement to service connection for a bilateral eye disability is  addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDING OF FACT

The Veteran does not have any current residual of tuberculosis exposure.


CONCLUSION OF LAW

The Veteran does not have a current disability that is the result of tuberculosis exposure during active military service.  38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

Under the VCAA, VA must inform the claimant of any information and 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.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include:  1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In a March 2004 letter, the RO notified the Veteran of the evidence needed to substantiate his claim of service connection for residuals of tuberculosis exposure.  This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The claimant's Veteran status has been substantiated.  He was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in a March 2006 letter.  

There was a timing deficiency in that the March 2004 and March 2006 letters were sent after the initial adjudication of the Veteran's claim.  This timing deficiency was cured by readjudication of the claim in a December 2009 supplemental statement of the case.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2013) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).

At the Veteran's September 2005 and June 2013 hearings, the VLJs who conducted the hearings identified the issues on appeal (including entitlement to service connection for residuals of tuberculosis exposure), informed the Veteran of the evidence necessary to substantiate a claim of service connection (including evidence of a current disability), and asked him about any symptoms and treatment received for his claimed disability.  Further, the Veteran provided testimony as to the history of his tuberculosis exposure and the treatment provided for that exposure and he has submitted additional evidence throughout the claim period.  Thus, he has demonstrated actual knowledge of the ability to identify and submit additional relevant evidence.  The duties imposed by Bryant were thereby met.

VA obtained the Veteran's service treatment records and all of the identified relevant post-service private medical records.  The Veteran has not reported, and the evidence does otherwise indicate, that he has received any post-service VA medical treatment for residuals of tuberculosis exposure.

A VA examination was scheduled for a date in November 2009 to assess the nature and etiology of any current residuals of tuberculosis exposure.  The Veteran failed to appear for the scheduled examination.  It appears that the notice for this examination was sent to the incorrect address.  As explained below, however, a VA examination or opinion for the claimed residuals of tuberculosis exposure is not necessary.

VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The threshold for finding a link between current disability and service is low.  Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83.  The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83.

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, 20 Vet. App. at 83.  There must, however, be sufficient evidence of such a relationship to trigger VA's duty to provide an examination or obtain a medical opinion.  Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). 

The Veteran has not been afforded a VA examination for his claimed residuals of tuberculosis exposure and an opinion as to the etiology of any such residuals has not otherwise been obtained.  As discussed below, there is no evidence that the Veteran has been diagnosed as having any current residual of tuberculosis exposure at any time during the claim period and there is no evidence of any current disability that may be related to any such exposure in service.  The Veteran has not reported, and the evidence does not reflect, a continuity of symptomatology with respect to any residual of tuberculosis exposure.  Also, there is no medical evidence that any current disability may be related to tuberculosis exposure in service, and the Veteran has not alluded to the existence of any such evidence.  Hence, a VA examination or opinion for the claimed residuals of tuberculosis exposure is not necessary.  See McLendon, 20 Vet. App. at 83.

In its January 2007 remand, the Board instructed the agency of original jurisdiction (AOJ) to, among other things, send the Veteran a sufficient VCAA notice letter (including notice pursuant to the Court's decision in Dingess).  The Veteran was provided a sufficient VCAA notice letter (which includes notice pursuant to the Court's decision in Dingess) in February 2007.  Thus, the AOJ substantially complied with all of the Board's relevant remand instructions and VA has no further duty to attempt to obtain any additional records or conduct additional examinations with respect to the claim being decided herein.  See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

Analysis

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) (2013) is through a demonstration of continuity of symptomatology.  See Clyburn v. West, 12 Vet. App. 296, 302 (1999).  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.  See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a).

In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In the absence of proof of present disability there can be no successful claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes).

To be present as a current disability, there must be evidence of the condition at some time during the claim period.  Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves).

In this case, the Veteran claims that he was exposed to tuberculosis in service and that he is entitled to service connection because he has "latent" tuberculosis which may become active or result in other residuals in the future.  Service treatment records confirm that a purified protein derivative (PPD) skin test was positive in November 1982, but that the Veteran was asymptomatic and that there was a negative workup for any active disease.  He received isoniazid (INH) therapy from November 1982 to November 1983 and a chest X-ray performed in November 1983 was normal.
Despite the fact that there is evidence of exposure to tuberculosis in service, the evidence dated since the Veteran's claim was received in June 1998 reflects that he does not have any current active tuberculosis or residual of exposure to the disease.  The Veteran's post-service medical records do not reflect any evidence of treatment for active or "latent" tuberculosis or any residual thereof, he has acknowledged the fact that he has not experienced any active tuberculosis, and he has not identified any specific disability which he believes is related to tuberculosis exposure in service.

There is no other evidence of any current tuberculosis or residual related to exposure to tuberculosis at any time since the Veteran's claim was received in June 1998, and he has not alluded to the existence of any such evidence.  Thus, in light of the lack of evidence of a diagnosed disability, the weight of the evidence is against a finding of a current residual of tuberculosis exposure and the existence of a current disability is the cornerstone of a claim for VA disability compensation.

For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim and the claim of service connection for residuals of tuberculosis exposure must be denied.  See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57.


ORDER

Entitlement to service connection for residuals of tuberculosis exposure is denied.


REMAND

Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The Veteran was afforded a VA examination in March 2010 to assess the nature and etiology of any current eye disability.  The examiner who conducted the examination diagnosed the Veteran as having bilateral ocular hypertension.  He explained that the Veteran was diagnosed with ocular hypertension in July 1992 due to elevated intraocular pressures and that he was placed on medication for this problem in 1996.  His visual fields were normal at the time of the March 2010 examination.  Therefore, he had ocular hypertension and not glaucoma.  Although he was first diagnosed as having ocular hypertension during active service, he did not have any current eye disability because there was no glaucoma.  Rather, he was taking glaucoma medications to prevent the onset of glaucoma by reducing intraocular pressures.  This ocular hypertension was not likely ("less likely as not") related to service because it is typically genetic in nature.

The March 2010 examination is insufficient because despite the fact that the examiner concluded that the Veteran did not have any current eye disability (including glaucoma), medical records dated since his claim was received in June 1998 include numerous diagnoses of various eye disabilities.  Such diagnoses include glaucoma, blepharitis, and cataracts.  In this regard, the requirement for a current disability is satisfied if there is evidence of the disability at any time since the Veteran's claim was received in June 1998, even if the disability is currently in remission.  McClain, 21 Vet. App. at 319.

VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.  38 C.F.R. § 4.2 (2013); see 38 C.F.R. § 19.9 (2013).  Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination."  Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993).

Moreover, the VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody.  38 C.F.R. § 3.159(c)(4).

The Veteran has submitted private records of treatment for eye problems from Boes Eye Care (Boes).  The most recent examination report from this facility in the claims file is dated in February 2013 and indicates that the Veteran was scheduled for follow up treatment in 6 months.  During the June 2013 hearing the Veteran confirmed that he received treatment for his eyes every 6 months.

When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and provide a release to obtain such records.  If the Veteran does not provide the release, VA must ask the Veteran to obtain the records.  38 C.F.R. § 3.159(e)(2).  These steps have not yet been taken with respect to any additional treatment records from Boes.  Thus, a remand is also necessary to attempt to obtain any additional relevant private treatment records.  

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to complete an authorization for VA to obtain all records of his treatment for an eye disability from Boes Eye Care dated from February 2013 through the present.  All efforts to obtain these records must be documented in the claims file.

If the Veteran fails to furnish any necessary releases for private treatment records, he shall be advised to obtain the records and submit them to VA. 

If any putative records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claim.

2.  After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA eye examination to determine the nature and etiology of any current eye disability.  All indicated tests and studies shall be conducted.

The claims folder, including this remand and any relevant records contained in the Virtual VA and VBMS systems, along with any records obtained pursuant to this remand, must be sent to the examiner for review.

For each current eye disability identified (i.e. any eye disability diagnosed since June 1998), the examiner shall answer all of the following questions:

(a)   Is it at least as likely as not (50 percent probability or more) that the current eye disability had its clinical onset in service, is related to any of the Veteran's eye problems in service, or is otherwise the result of a disease or injury in service?

(b)  Which diagnosed eye conditions, if any, are refractive errors as opposed to acquired eye disabilities?

(c)  If any diagnosed eye disability, whether diagnosed in service or otherwise, is a congenital condition, is the condition a congenital defect or disease?

In formulating the above opinions, the examiner shall specifically acknowledge and comment on all eye disabilities diagnosed since June 1998 (including, but not limited to, glaucoma, blepharitis, and cataracts), all instances of treatment for eye problems in the Veteran's service treatment records (including treatment for ocular hypertension, "pre glaucoma," conjunctivitis, and blepharitis), and the Veteran's reports of a continuity of eye symptomatology in the years since service.   

The examiner must provide reasons for each opinion given.

3.  If the benefit on appeal remains denied, the AOJ shall issue a supplemental statement of the case.  After the Veteran is given an opportunity to respond, the case shall be returned to the Board.

No action is required of the Veteran until he is notified by the AOJ; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim.  38 C.F.R. § 3.655 (2013).  The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim 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