Citation Nr: 1446292 Decision Date: 10/20/14 Archive Date: 10/30/14 DOCKET NO. 09-43 851 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an eye disability. 2. Entitlement to service connection for peripheral neuropathy of both upper extremities. 3. Entitlement to service connection for peripheral neuropathy of both lower extremities. 4. Entitlement to a rating in excess of 10 percent for residuals of a stroke. 5. Entitlement to a compensable rating for costochondritis, left chest wall. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J.C. Chapman INTRODUCTION The appellant is a Veteran who served on active duty from April 1971 to April 1974. These matters are before the Board of Veterans' Appeals (Board) on appeal from November 2008 (eye, peripheral neuropathy), November 2010 (left chest wall), and March 2011 (stroke) rating decisions of a Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). The issues of service connection for upper and lower extremity peripheral neuropathy and seeking increased ratings for left chest wall costochondritis and for residuals of a stroke are being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. FINDING OF FACT The Veteran's diagnosed eye condition (astigmatism) is a refractive error that is not a compensable disability; superimposed eye pathology is not shown. CONCLUSION OF LAW Service connection for an eye disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (c), 4.9 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2013) have been met. By correspondence dated in July 2008, VA notified the Veteran of the information needed to substantiate and complete his claim for service connection for an eye disability, to include notice of the information that he was responsible for providing and what evidence VA would attempt to obtain, as well as how VA assigns disability ratings and effective dates. He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice medical records are associated with the record. The Veteran was afforded a VA eye examination in October 2008. The Board finds the report of this examination adequate for rating purposes. The examination was conducted specifically to determine whether the Veteran has eye disability other than refractive error, and the examiner made all findings needed to address the matter at hand. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the record is adequate to decide the issue of service connection for an eye disability, and that no further development of the evidentiary record is necessary. The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: A current claimed disability; incurrence or aggravation of a disease or injury in service; and a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Refractive error is a congenital or developmental abnormality that is not a disease or injury within the meaning of applicable regulation [i.e., not a compensable disability]. 38 C.F.R. §§ 3.303(c), 4.9. However, service connection may be granted for disability due to aggravation of a congenital abnormality from superimposed disease or injury in service. See Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). VA's General Counsel has held that service connection may be granted for diseases of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. The VA General Counsel also has held that a congenital defect can be subject to superimposed disease or injury, and if superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990). See also 38 C.F.R. § 3.303(c). In the absence of superimposed disease or injury, service connection may not be allowed 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; VA Manual M21-1MR, Part III, Subpart iv, Chapter 4, Section B. 10d.) When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence of record. See Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2009). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows or fails to show as to the claim. On March 1971 service entrance examination, the Veteran's uncorrected distant vision was 20/400 in each eyes, corrected to 20/30 in the right eye and 20/20 in the left. In June 1973, he reported blurred vision at distance and was noted to have right eye astigmatism. On March 1974 service separation examination, the Veteran's uncorrected distant vision was 20/400 in each eye, each corrected to 20/15. A September 2008 VA treatment record notes that the Veteran had no eye complaints. The assessment was diabetes mellitus (with no background diabetic retinopathy in either eye) and refractive error in both eyes. On October 2008 VA eye examination, the examiner noted that the Veteran had diabetes mellitus, but that there was no evidence of diabetic retinopathy. The diagnosis was refractive error. On November 2011 VA diabetes mellitus examination, the examiner indicated that the Veteran did not have diabetic retinopathy or any other eye condition due to diabetes. As reported above, the Veteran was found to have astigmatism (a refractive error) on service induction, during service, and on separation. As noted above, astigmatism of itself (without superimposed pathology) is not a compensable disability. There is no indication in the record that the Veteran has any superimposed eye pathology. None was noted in service. On October 2011 VA examination no eye disability other than refractive error was found; the examiner specifically found that the Veteran does not have diabetic retinopathy. As the Veteran is not shown to have a compensable eye disability, service connection for an eye disability is not warranted. ORDER Service connection for an eye disability is denied. REMAND The Veteran contends that he has peripheral neuropathy of both upper and both lower extremities that is either secondary to his service-connected diabetes mellitus and/or post-heart transplant coronary artery disease (CAD), or resulted from his exposure to Agent Orange in service. As he served in Vietnam he is presumed to have been exposed to Agent Orange/herbicides. On November 2008 VA examination, the examiner noted a diagnosis of early mild peripheral neuropathy and opined that such was less likely than not related to diabetes mellitus. An October 2009 addendum opinion indicates that the Veteran's lower extremity peripheral neuropathy is less likely than not related to diabetes since the symptoms reported by the Veteran preceded the onset of his diabetes. On February 2011 VA neurological (brain and spinal cord) examination, the examiner found no evidence of upper extremity peripheral neuropathy, and opined that the Veteran's lower extremity peripheral neuropathy is less likely than not related to his CAD because CAD does not cause peripheral neuropathy. The examiner also opined that the peripheral neuropathy is unrelated to the Veteran's stroke, as the Veteran reported his [neuropathy] symptoms had been occurring since the 1980s (prior to his stroke). On November 2011 VA examination, the examiner found no evidence of diabetic peripheral neuropathy. The examiner noted that the Veteran's symptoms are isolated to his knees and calves and do not otherwise affect his upper or lower extremities. [The examiner noted that it is possible the Veteran may have some peripheral vascular issues.] Accordingly, there is inconsistency in the medical evidence of record as to whether or not the Veteran actually has peripheral neuropathy; and if he is found to have peripheral neuropathy there is inadequate medical evidence regarding whether such disability was aggravated by the Veteran's service-connected disabilities (diabetes mellitus, post heart transplant CAD, and stroke) and their medical and surgical treatment. Governing law/caselaw provide that in adjudicating a secondary service connection claim VA must address the aggravation aspect of such claim. Accordingly, a new VA examination to secure an adequate medical opinion in this matter is necessary. The Veteran has suggested that his left chest wall disability is now more severe than is reflected by the 0 percent rating assigned. His last VA examination to assess this disability was in October 2010. Given the allegation of worsened disability, a contemporaneous examination to assess the disability is indicated. Further, the most recent treatment records associated with the claims files are dated in 2011. As the Veteran receives ongoing care, and as records of ongoing treatment may contain information regarding the status of the disability during the evaluation period, they must be secured. Regarding the rating for residuals of a stroke, a February 2011 VA examination report notes the stroke occurred in 2003, and affected the left arm, left leg, speech, and memory. Records of the initial treatment and up-to- date follow-up are not associated with the record, but are needed to determine the scope and assess the current severity of the stroke residuals . The case is REMANDED for the following: 1. Secure for the record copies of the complete updated clinical records of all VA or private evaluations or treatment the Veteran has received for peripheral neuropathy, left chest wall costochondritis, and stroke residuals, to specifically include records of the initial treatment for the stroke in 2003 (when it occurred). 2. Then arrange for a neurological examination of the Veteran to conclusively determine whether or not the Veteran has peripheral neuropathy disability of each upper and each lower extremity, and if so the likely etiology of such disability. The Veteran's record, to include this remand, must be reviewed by the examiner in conjunction with the examination (and the examiner should note, in particular, the opinions already in the record in this matter, discussed above). Any indicated tests or studies must be completed. Upon examination and interview of the Veteran, and review of the record, the examiner should provide opinions that respond to the following: (a) Does the Veteran have peripheral neuropathy (as to each upper and each lower extremity)? The examiner should reconcile the response with the conclusions by previous VA examiners, noted above (expressing, with rationale, agreement or disagreement with their conclusions). (b) What is the most likely etiology for any peripheral neuropathy of the upper and lower extremities found?. Specifically, is it at least as likely as not (a 50% or greater probability) that such is (i) related to exposure to herbicides in service (ii) caused or aggravated (the response must address the concept of aggravation, to include by medical or surgical treatment) by a service connected disability (diabetes, CAD, residuals of stroke)? The examiner should explain the rationale for all opinions. 3. Also arrange for the Veteran to be examined by an appropriate physician to determine the current severity of his service-connected left chest wall costochondritis. The entire record must be reviewed by the examiner in conjunction with the examination. Any and all related functional limitations should be noted. All findings should be described in detail. The examiner should indicate whether the disability is best characterized as severe, moderately severe, or moderate muscle injury (and note the clinical data that support the conclusion). 4. Then review the record and determine whether an examination of the Veteran is needed to assess his residuals of a stroke (in light of the treatment received pursuant to the request above. If so, arrange for such an examination. 5. Thereafter review the record and readjudicate the claims remaining on appeal. If any remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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 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). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs