Citation Nr: 1538735 Decision Date: 09/10/15 Archive Date: 09/18/15 DOCKET NO. 14-27 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for bilateral senile cataracts, claimed as impairment of both eyes. 2. Entitlement to service connection for pulmonary tuberculosis (PTB). 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for hypertensive heart disease. 5. Entitlement to service connection for peptic ulcer disease. 6. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Dixon, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran had active service from March 1951 to October 1954. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila. The Board notes that the issues of entitlement to service connection for osteoarthritis, and entitlement to increased ratings for hearing loss, tinnitus, and posttraumatic stress disorder (PTSD) were listed as issues in a November 2014 supplemental statement of the case and certified as being on appeal before the Board. VA Form 8 dated December 16, 2014. However, these issues are not properly before the Board. It is clear that the RO interpreted statements on the Veteran's VA Form 21-8940 and subsequent disagreement with denial of entitlement to TDIU as an implied claim of increase for his service-connected conditions and a claim for service connection for osteoarthritis. However, a supplemental statement of the case may not be used to announce decisions by the AOJ not previously addressed in the statement of the case. 38 C.F.R. § 19.31(a). Here, the statement of the case and the VA Form 9 were specific only to the six issues identified above. No other issues are on appeal at this time. The appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into account the existence of this electronic record. The issues of entitlement to service connection for hypertension, hypertensive heart disease, peptic ulcer disease, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's current bilateral senile cataracts were not incurred in service and are not otherwise related to service. 2. The Veteran's pulmonary tuberculosis was not incurred in or aggravated by service, nor was it shown to have manifested within three years of service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral senile cataracts have not been met. 38 U.S.C.A. §§ 1110, 1154 (2014); 38 C.F.R. § 3.303 (2015). 2. The criteria for service connection for pulmonary tuberculosis have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Establishing service connection generally requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant 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 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2015). Service Connection for Bilateral Senile Cataracts The Veteran contends that his bilateral cataracts were caused by irritation from exposure to gun powder and gun smoke while serving as a machine gunner in the Korean War. Although the Board does not dispute that the Veteran has a current diagnosis of bilateral senile cataracts, the other two elements required for service connection have not been established. First, there is no evidence of any eye condition in the Veteran's service treatment records (STRs). The Board acknowledges that the Veteran's STRs are incomplete and the record therefore contains only his military separation report of medical history and examination report. However, the Veteran reported no history of eye trouble and the medical examiner found the Veteran's eyes, ophthalmoscopic examination, ocular motility, and pupils to be normal. Furthermore, the examiner noted that the Veteran had had no serious medical illness or injuries. Additionally, there is no evidence relating the Veteran's cataracts to service. To the contrary, the Veteran has been diagnosed with bilateral senile cataracts, indicating that his cataracts are related to his age, rather than exposure to irritants during military service. Dr. P.B. record dated February 12, 2013; Dorland's Illustrated Medical Dictionary, 304 (32d ed. 2012) (defining senile cataracts as "the most common kind of cataract, painless and of unknown cause, developing without any traumatic, ocular, systemic, or congenital disorder. Senile cataracts are associated solely with aging, some degree of cataract being normal in persons over 50") (emphasis added). The Board acknowledges that the Veteran sincerely believes that his cataracts are due to service, and that he is competent to describe symptoms and onset of his condition. However, he is not competent to provide testimony regarding its etiology. See Jandreau v. Nicholson, 492 F.3d 1372, n. 4 (Fed. Cir. 2007) (a layperson may be competent to identify a condition where the condition is simple, like a broken leg, but not if the condition is, for example, a type of cancer). The cause of the Veteran's cataracts is not a simple identification that a layperson is competent to make, and there is no indication that the Veteran has the requisite medical training or expertise necessary in making such an opinion as to cause of that condition. Therefore, given the medical expertise necessary in making such an opinion as to etiology and the assignment of symptoms to a particular diagnosis, the Veteran's statements regarding etiology of his cataracts do not constitute competent evidence on which the Board can make a service connection determination. Rather, the Board relies on the diagnosis provided by the Veteran's medical treatment providers, which indicate that the Veteran's cataracts are solely due to his age. Accordingly, service connection for bilateral senile cataracts is denied. The Board has considered the applicability of the benefit of the doubt doctrine, however, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. Service Connection for Pulmonary Tuberculosis The Veteran contends that, alternative to a finding of direct service connection, his PTB should be presumed service connected under the provisions of 38 C.F.R. § 3.307 and 38 C.F.R. § 3.309. Service connection may be granted on a presumptive basis for pulmonary tuberculosis if the disability manifested to a compensable degree within three years of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307(a)(3), 3.309(a). Alternatively, where the chronic disease is noted in service, but is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity after discharge may still permit service connection as a chronic disease. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the Board finds that although the Veteran has a history of PTB, it is not related to service. First, there is no evidence of tuberculosis or manifestations thereof in the Veteran's service treatment records (STRs). The Veteran reported no history of tuberculosis or other symptoms of pulmonary tuberculosis such as asthma, shortness of breath, pain or pressure in chest, or chronic cough at the time of his military separation. The medical examiner found the Veteran's lungs and chest to be normal, and noted that the Veteran had had no serious medical illness or injuries. Furthermore, there is no evidence in the record that PTB manifested to a compensable degree within three years after the Veteran separated from the military. Rather, the Veteran has indicated that he was not diagnosed with PTB until 1969, more than a decade after his discharge from service. Veteran's Application for Compensation or Pension received May 11, 1971; see also July 1971 VA examination (the Veteran reported that he had intermittent chest pain and cough for the past 6 years). Finally, there is no evidence relating the Veteran's PTB to service except for the Veteran's own assertions. As discussed above, the Veteran can describe symptoms and onset of his condition, but he is not competent to provide testimony regarding its etiology. See Jandreau, 492 F.3d at 1372, n. 4. Therefore, the Veteran's assertions that his PTB is related to service do not constitute competent evidence on which the Board can make a service connection determination. Based on the foregoing, the Board finds that service connection for PTB is not warranted. There is no evidence that PTB was incurred in service or manifested to a compensable degree within three years of discharge. There is no competent evidence that the Veteran's PTB is nonetheless related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107(b). Therefore, service connection for PTB must be denied. VA's Duties to Notify and Assist The Veteran does not assert that there has been any deficiency in the notice provided to him under the Veteran's Claims Assistance Act of 2000 (VCAA). A notice letter dated in May 2013 is of record. The Board notes that the VA was unable to obtain the Veteran's complete STRs. However, in response to VA requests, the National Personnel Records Center (NPRC) reported that the Veteran's records were "fire related and there are no STRs," indicating that they were destroyed in a fire at the Records Center in 1973. In a case where a claimant's service records are unavailable through no fault of his own, the Board acknowledges that there is a heightened obligation for VA to assist in the development of his claim and to provide reasons and bases for any adverse decision rendered without these records. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran has not identified any other outstanding records that he wants VA to obtain or that he believes are relevant to his claims. Therefore, the duty to assist him in obtaining pertinent records has been satisfied, to the extent that identified records are obtainable. 38 C.F.R. § 3.159(c) (2015). The Veteran has not been provided a VA medical examination in relation to his claims. However, as explained in this decision, the weight of the evidence shows that there was no evidence of eye injury or PTB during service to which a competent medical opinion could relate the current disabilities. Consequently, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for bilateral senile cataracts or PTB, and thus a VA medical examination is not required. 38 U.S.C.A. § 5103A(a)(2) (2014); see also 38 C.F.R. § 3.159(d) (noting that "VA will discontinue providing assistance in obtaining evidence for a claim if the evidence obtained indicates that there is no reasonable possibility that further assistance would substantiate the claim.") Accordingly, the Board finds that no further development is required in this case. ORDER Entitlement to service connection for bilateral senile cataracts is denied. Entitlement to service connection for pulmonary tuberculosis is denied. REMAND A medical examination is required for adjudication of the claims for service connection for hypertension, hypertensive heart disease and peptic ulcer disease. In an Appellant's Brief dated in July 2015, the Veteran's representative argued that those conditions may be secondary to or aggravated by his service-connected PTSD, and cited to various medical articles in support. VA's duty to assist requires it to provide a medical examination or obtain a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but 1) contains competent evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; 2) establishes that the Veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease to which the presumptive period applies; and 3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. 38 C.F.R. § 3.159(c)(4)(i). As the Veteran's representative has indicated that the Veteran's hypertension, hypertensive heart disease and peptic ulcer disease may be related to his PTSD, a VA medical opinion is necessary. As to the Veteran's claim for TDIU, the outcome of the other pending claims on appeal could affect the claim for entitlement to TDIU. Since the matters are inextricably intertwined, the claim for TDIU is remanded pending adjudication of the other claims on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). 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). Expedited handling is requested.) 1. Schedule the Veteran for an examination to address the nature and etiology of his hypertension, hypertensive heart disease, and peptic ulcer disease. The examiner is requested to review all pertinent records associated with the claims file. After reviewing the record and examining the Veteran, the examiner should then address the following: (a) Is it at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's hypertension is caused directly by service, or caused by or aggravated by (chronically worsened beyond natural progression) the Veteran's service-connected PTSD? (b) Is it at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's hypertensive heart disease is caused directly by service, or caused by or aggravated by (chronically worsened beyond natural progression) the Veteran's service-connected PTSD? (c) Is it at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's peptic ulcer disease is caused directly by service, or caused by or aggravated by (chronically worsened beyond natural progression) the Veteran's service-connected PTSD? Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: Aggravation means any increase in the severity of an existing disability that is not due to the natural progress of the disease or injury. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 2. After completing the above and any other development deemed necessary, the RO should readjudicate the claims on appeal, to include entitlement to TDIU. If the benefits sought on appeal are not granted, the Veteran and his attorney should be provided a supplemental statement of the case and an appropriate time period 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 matter or 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 2014). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs