Citation Nr: 1342569 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 11-12 775 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a bilateral eye disability. 3. Entitlement to service connection for an enlarged prostate, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1958 to May 1960 and from October 1961 to June 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In June 2013, the Board remanded the case to the RO for additional evidentiary development. As it relates to the claim for service connection for a back disability, the Board finds there was substantial compliance with its remand order and that it may therefore proceed with a determination of this issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013); 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for a bilateral eye disability and an enlarged prostate, to include as due to herbicide exposure, are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT A chronic back disability was not present during service, was not manifested within one year from the Veteran's discharge from service, and is not the result of a disease or injury in service. CONCLUSION OF LAW A chronic back disability was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110 , 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Compliance with Prior Board Remand The Board observes that this case was previously remanded in June 2013 in order to obtain a VA back examination to determine if the Veteran's current back disability is related to his active duty service. VA back examination was conducted in July 2013. The July 2013 VA back examination was adequate. See 38 C.F.R. § 3.159(c)(4). It appears there was substantial compliance with the prior remand order and the Board may continue with its determination. Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. VA's Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Appropriate notice was provided in a September 2009 letter. As for the duty to assist, the Veteran's available service treatment records (STRs), service personnel records and private medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's entrance medical examination from October 1961 cannot be obtained despite numerous attempts by the RO. The RO determined that further attempts to obtain this service treatment record would be futile. 38 C.F.R. § 3.159(c)(2); see Formal Finding on Unavailability of Service Records, April 2010. The Veteran was informed of the attempts to obtain this record and was asked to provide any records in his possession. In circumstances such as this, where the original service treatment record is unavailable, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran has not claimed to be in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). The record does not indicate any additional relevant medical records that have not been obtained and associated with the Veteran's file. One VA back examination has been conducted in connection with the current claim for service connection. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008). The July 2013 VA back examination is adequate as the examiner considered the entire record, noted the Veteran's medical history and addressed relevant evidence. VA's duty to assist with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. III. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). When a chronic disease is shown in-service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in-service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(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). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, such as arthritis, are presumed to have been incurred in-service if such manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case, the nexus between in-service events and chronic back and bilateral eye disabilities, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, medical evidence will be required to establish a medical diagnosis of the Veteran's claimed back and eye disabilities and to address the question of whether his active duty service caused his back and eye disabilities. In deciding whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran). The Veteran contends that service connection is warranted for his back disability as it was incurred during active duty service. Initially, the Board finds the record establishes the presence of a current disability. Upon VA examination in July 2013, the Veteran was diagnosed with lumbar spine degenerative disc and facet disease. The Veteran's STRs only document one complaint related to the Veteran's back. Upon the Veteran's separation Record of Medical History in May 1982, the Veteran noted that he was prone to low back muscle spasms on long exercises. Although the Veteran's spine was normal upon examination for retirement in May 1982, the Board finds that two of the three elements necessary for service connection- a current disability and an in-service injury- are demonstrated. Regarding the third element of service connection, a nexus between the Veteran's current disability and the in-service injury, the Board notes that service records do not indicate such a link. No chronic conditions were noted on the Veteran's May 1982 retirement examination and the examiner found the Veteran's "spine-other musculoskeletal" to be normal. Additionally, physical examinations conducted in October 1971, February 1977 and August 1978 all found the Veteran's "spine- other musculoskeletal" to be normal. There is no other evidence of complaints, treatment, or diagnosis of a back disorder in the Veteran's STRs. There is also no medical evidence of arthritis of the Veteran's back within a year from the Veteran's retirement from active duty service to allow for service connection on a presumptive basis. See 38 C.F.R. § 3.307, 3.309. In fact, the earliest post-service medical evidence related to the claimed back disability dates from August 2006, approximately 24 years after service. See Plano Medical Associates, Physical Examination, August 2006 (finding arthritis of the Veteran's thoracic spine). The absence of any clinical evidence for years after service weighs the evidence against a finding that the Veteran's lumbar spine degenerative disc and facet disease was present in service or in the year immediately after service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). There is also no competent medical evidence in support of the claim for service connection. A VA back examination was conducted in July 2013. Although the VA examiner noted that the Veteran's VA claims file was not reviewed, he also noted that all of the Veteran's VA treatment records and all electronic records on VBMS were reviewed. As stated above, this is a VBMS paperless claims case and all of the Veteran's pertinent STRs and medical records are located on VBMS. Thus, a review of Veteran's VBMS file constituted a review of the Veteran's VA claims file. The VA examiner concluded that it was not possible to link the Veteran's lumbar spine degenerative disc and facet disease to active duty without resorting to speculation. The Board notes that the opinion offered by the July 2013 VA examiner is not itself speculative; rather, it notes that linking the claimed disability to service would itself require speculation. The Veteran has also not submitted or identified any competent medical evidence in support of his claim for service connection for a back disability. The Board has also considered the Veteran's statements connecting his back disability to active duty service. The Board notes that lay persons are competent to provide opinions on some medical issues. See Kahana, 24 Vet. App. at 438. The specific issue in this case, however, falls outside the realm of common knowledge of a lay person. Jandreau, 429 F.3d at 1377 (lay persons not competent to diagnosis cancer). The Veteran is competent to report observable symptoms, such as back pain, but his opinion as to the cause of his symptoms simply cannot be accepted as competent evidence. Id. Furthermore, the Board notes that the Veteran has not reported a history of a continuity of symptomatology since service sufficient to allow for an award of service connection under 38 C.F.R. § 3.309(b). While the Veteran did vaguely report during the July 2013 VA examination that he sought treatment for his back condition post-service and it prevented him from working some days as a civilian mechanic, he also stated that "[h]is pain comes and goes," he was unable to quantitate how many days per month/quarter/year of work he missed due to back pain, and he revealed he was not currently under any care for his back condition. As the Veteran has not reported a clear continuity of back disability symptoms since service, service connection for arthritis of the Veteran's back, under 38 C.F.R. § 3.309(b), is not warranted. In sum, the post-service medical evidence of record shows that the first evidence of the Veteran's current back disability was over 24 years after his separation from active duty service. Overall, there is no competent evidence in the record that the Veteran's lumbar spine degenerative disc and facet disease is related to his military service. The Board therefore concludes that the evidence is against a nexus between the Veteran's claimed back disability and his active duty service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for a back disability is denied. REMAND A remand is necessary for additional evidentiary development regarding the Veteran's claims for service connection for a bilateral eye disability and an enlarged prostate, to include as due to herbicide exposure. Over the course of the appeal, the Veteran has been afforded one VA eye examination and one VA prostate examination. The July 2013 VA eye examiner noted that none of the Veteran's records were reviewed and did not address whether the Veteran's in-service eye examinations documented the presence of a chronic eye disability. See Board Remand, June 2013. During the July 2013 VA prostate examination, the Veteran was diagnosed with prostate hypertrophy. The VA examiner opined that the Veteran's benign prostatic hypertrophy is less likely than not proximately due to or caused by his military service or herbicide exposure. The rationale provided was that herbicide exposure is not known to cause benign prostatic hypertrophy and all of the Veteran's STRs are silent for this condition. The Veteran's STRs document that during a September 1975 optometric examination, the Veteran complained of headaches when reading and that he had reading glasses ten years ago. The Veteran was found to have 20/20 far vision but 20/30 near vision and the examiner recommended that the Veteran get eye glasses. A July 1979 treatment note found a decrease in the Veteran's near vision and the impression was increased astigmatism. In March 1982, the Veteran was given a new eye glass prescription and two new pairs of glasses were ordered. The Veteran's May 1982 Report of Medical History documents the Veteran having no history of eye trouble and having had eye glasses for the past five years. Additionally, the Veteran's STRs note that in April 1976, he was suffering from gross hematuria. Post-service treatment records show the Veteran was diagnosed in August 2006 with bilateral arcus senilis of the eyes and an enlarged prostate. The Veteran's prostate-specific antigen (PSA) readings have gradually increased from 1.0 in August 2006 to 1.6 in January 2011. The July 2013 VA prostate and eye examinations are inadequate as the VA examiners failed to consider the Veteran's STRs and post-service medical records when providing a nexus opinion. See Stegall, 11 Vet. App. at 271. Accordingly, on remand, the Veteran should be afforded a new VA eye examination, by an examiner who has thoroughly reviewed the Veteran's claims file, and an addendum VA prostate opinion. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2013). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Obtain the names and addresses of all medical care providers, not previously identified, who have treated the Veteran for any eye or prostate issues since separation from active duty service. After securing the necessary release(s), obtain these records. 2. After completion of the above, afford the Veteran an appropriate VA examination to determine the nature and etiology of the claimed eye disability. The Veteran's VBMS paperless claims file and a copy of this remand should be made available to the examiner for review. After physically examining the Veteran and reviewing the complete claims file, the examiner should determine whether it is at least as likely as not (i.e., probability of 50 percent) that any present eye conditions were incurred due to any event during active duty service. A full rationale must be provided for all stated medical opinions that reflect consideration of both lay and medical evidence. In providing an opinion, the examiner should address the significance of the Veteran's September 1975 optometric examination wherein he complained of headaches when reading and was found to have 20/20 far vision but 20/30 near vision; the July 1979 treatment note that found a decrease in the Veteran's near vision with an impression of increased astigmatism; the March 1982 treatment note wherein the Veteran was given a new eye glass prescription and two new pairs of glasses were ordered; the Veteran's May 1982 Report of Medical History documenting having eye glasses for the past five years and no history of eye trouble; the August 2006 finding by the Veteran's private doctor of bilateral arcus senilis of the eyes; and the July 2013 VA eye examination diagnosing the Veteran with mature senile cataracts, early senile macular degeneration, hypertensive retinopathy, arcus senilis, and Hollenhorst plaque and finding that all of these conditions are age-related and therefore, not related to the Veteran's active duty service. The examiner's opinion should also address whether the Veteran's eye examinations performed during active duty service document the presence of a chronic eye disability. Note: if the examiner concludes that any of the requested opinions cannot be provided without resort to speculation, the examiner should so state and explain why these opinions would be speculative and what, if any, additional evidence would permit such opinions to be made. 3. Return the claims folder to the physician who examined the Veteran in July 2013, if available, for an addendum medical opinion (if that examiner is unavailable, a medical professional with appropriate expertise). The Veteran's VBMS paperless claims file and a copy of this remand should be made available to the examiner for review. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent), that the Veteran's currently diagnosed benign prostatic hypertrophy was incurred due to any event during active duty service, to include the Veteran's presumed exposure to herbicides. A full rationale must be provided for all stated medical opinions that reflect consideration of both lay and medical evidence. In providing the opinion, the examiner should address the significance of the April 1976 service treatment record noting the Veteran has gross hematuria; the Veteran's private doctor's finding of an enlarged prostate in August 2006; and, the Veteran's gradually increasing PSA levels since August 2006 (August 2006, PSA of 1.0; August 2007, PSA of 1.2; September 2008, PSA of 1.5; October 2009, PSA of 1.5; January 2011, PSA of 1.6). Note: if the examiner concludes that any of the requested opinions cannot be provided without resort to speculation, the examiner should so state and explain why these opinions would be speculative and what, if any, additional evidence would permit such opinions to be made. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The case should then be returned to the Board for further consideration, 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). 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs