Citation Nr: 1539252 Decision Date: 09/14/15 Archive Date: 09/24/15 DOCKET NO. 09-00 628 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a left eye disability. 2. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Michael J. Kelley, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the VA RO. A January 2008 rating decision denied the Veteran's claim of entitlement to service connection for a left eye disability. An October 2014 rating decision granted the Veteran's claim of entitlement to service connection for PTSD and assigned a 70 percent rating from September 20, 2006, to July 31, 2007, a 30 percent rating from August 1, 2007, to April 4, 2014, and a 70 percent rating from April 5, 2014. The Veteran appealed this decision, and the RO in February 2015 granted a 70 percent rating from September 2006 and granted TDIU from the same date. However, as this is not a full grant, the Veteran's appeal continues. The Board remanded the claim in January 2011. Because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to a rating in excess of 70 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The weight of the competent evidence of record is against a finding that a left eye disability began during the Veteran's military service, was caused by his service, onset within a year of her service, has been continuous since service, or was caused or aggravated by his service-connected PTSD. CONCLUSION OF LAW A left eye disability was not incurred in or aggravated by the Veteran's military service and may not be presumed to have been, nor was the left eye disability caused or aggravated by the Veteran's service-connected PTSD. 38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has certain notice and assistance obligations to claimants. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In the instant case, the Veteran has been provided with all appropriate notification. The Veteran has not otherwise alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to this claim for benefits. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, private treatment records, VA treatment records, and records from the Social Security Administration (SSA) have been obtained. The Veteran has not been afforded a VA examination addressing his left eye disability. No such examination is required. The Federal Circuit Court of Appeals has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C.A. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). As will be discussed in greater detail below, while the evidence shows that the Veteran currently has a left eye disability, the evidence does not indicate that the Veteran suffered an in-service injury, event, or disease that might have resulted in the development of such a disability. Furthermore, the Veteran has not identified an in-service event that gave rise to his development of a left eye disability, and the Veteran's service treatment records show no complaints or treatment relating to the Veteran's eyes, other than bilateral refractive error. With respect to the Veteran's claim that his left eye disability is secondarily related to his service-connected PTSD, the Board has carefully searched the medical evidence for a suggestion that the Veteran's left eye disability "may be associated" with his PTSD. The medical evidence of record simply does not suggest such an association; indeed, the only evidence suggesting such a relationship is the Veteran's own opinion, which the Board finds to be insufficient to trigger VA's duty to provide an examination with an opinion. See Waters, 601 F.3d 1274. Without competent evidence suggesting that the Veteran experienced a relevant in-service injury, event, or disease, and without competent evidence suggesting a relationship between the Veteran's PTSD and his active service, a VA examination addressing the Veteran's claimed left eye disability is unwarranted. The Veteran testified before a Veterans Law Judge in November 2010, and a transcript of this hearing has been associated with the record. In July 2015, the Veteran was notified that the Veterans Law Judge who took testimony at the November 2010 hearing had retired from the Board. The letter informed the Veteran that the Board would assume that he did not wish to participate in an additional hearing if he did not respond within 30 days. To date, no response has been received from the Veteran. The Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file, and it is not contended otherwise. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection The Veteran claims that he has a left eye disability either as the direct result of his service or secondary to his service-connected PTSD. In order to establish service connection, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). To the extent that the Veteran's left eye disability is akin to an organic disease of the nervous system, it is a chronic disease, and service connection may thus be established based on a continuity of symptomatology. 38 C.F.R. § 3.309(a) (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Furthermore, service incurrence will be presumed for this disability if it manifested to a compensable degree within the year after active service. 38 U.S.C.A. § 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2015); Harder v. Brown, 5 Vet. App. 183 (1993). Additional disability resulting from the aggravation of a non-service-connected disability by a service-connected disability is also service connected. 38 C.F.R. § 3.310 (2015); Allen v. Brown, 7 Vet. App. 439 (1995). To establish service connection for a claimed disability on a secondary basis, there must be evidence of a current disability, a service-connected disability, and medical evidence of a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Congenital or developmental defects (such as refractive error of the eye) are not diseases or injuries for VA compensation and pension purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2015). Thus, absent a superimposed disease or injury, service connection may not be granted for refractive error of the eyes, even if visual acuity decreased in service. The record contains no evidence of any superimposed disease or injury occurring during, or as a result of, military service, and as such, service connection is not warranted for any conditions involving a refractive error of the eye. Turning first to a discussion of the Veteran's pertinent medical history, the Veteran was diagnosed with hypertension in March 2003. In June 2003, it was noted that the Veteran's elevated blood pressure was due in some part due to the prednisone that he took in treatment of asthma. In October 2006, the Veteran was noted to have a history of left central retinal vein occlusion, uveitis, and endophthalmitis. In November 2006, a clinician noted that the Veteran had "very high blood pressure" that the Veteran believed was related to his level of stress. In January 2007, it was noted that the Veteran had a left central retinal vein occlusion with uveitis and endophthalmitis of questionable etiology. In April 2007, the Veteran underwent an evisceration surgery in order to remove his left eye, to address his complaints of blindness and pain in the left eye. Following the surgery, the Veteran complained of some tenderness to palpation over the temporary tarsorrhaphy foam bolsters. The Veteran reported that his eye had never felt better. The Veteran's eye socket was healing well. In May 2007, the Veteran complained of sharp, shooting pain behind his left eye socket. In a separate May 2007 record, the Veteran was noted to have left central retinal vein occlusion uveitis and endophthalmitis following his recent surgery. The Veteran complained of a hammering-type pain deep in his eye socket. It was noted that the Veteran was hypertensive while he was having headaches, but once his migraines stopped, his blood pressure was excellent. In May 2007, the Veteran was provided with an eye examination with Dr. Weene in conjunction with his claim of entitlement to SSA disability benefits. Dr. Weene noted that the Veteran had a central retinal vein occlusion of unknown etiology in 2006 (not stroke), which led to enucleation with pain. In January 2012, it was noted that the Veteran's blood pressure was "very high," and the Veteran's medications were adjusted as a result. The Veteran's blood pressure was later noted to be controlled. In October 2012, it was noted that the Veteran's blood pressure was controlled. Turning now to an analysis of the facts in this case, the evidence clearly demonstrates that the Veteran has a left eye disability. To the extent that the Veteran is claiming that his left eye condition is directly related to service, the Veteran has not identified an in-service experience that gave rise to the ultimate loss of his left eye. Furthermore, the Veteran's service treatment records show no evidence of complaints or treatment relating to his left eye, other than for refractive error. In a March 1969 Report of Medical History, the Veteran denied experiencing eye trouble or wearing an artificial eye. In a March 1969 Report of Medical Examination, the Veteran's eyes were found to be normal, ophthalmoscopic examination was normal, the pupils were normal, and ocular motility was normal. The Board further notes that the evidence does not show the onset of a left eye disability for well over thirty years after the Veteran's separation from service. The Veteran's claims file is devoid of any record in which a medical professional suggests that the Veteran's left eye disability may have either begun during or been otherwise caused by his military service, and the Veteran has not reported being told that his left eye disability was the result of his military service. The Veteran has alternatively claimed, for example during his November 2010 hearing before a Veterans Law Judge, that he suffers from a left eye disability secondary to his service-connected PTSD. More specifically, the Veteran argued that his PTSD led him to develop hypertension, which either itself led to his left eye disability or caused him to have a stroke, which led to his eye disability. Upon careful examination of the medical evidence, it is clear that the Veteran has PTSD (for which he is service connected), hypertension, and a disability of the left eye. The evidence does not show, however, a relationship between any of these disabilities. In other words, the medical evidence does not support the Veteran's contention that his PTSD is in any way connected to his development of hypertension. For that matter, the evidence does not support a finding that the Veteran's hypertension led to his left eye disability. Furthermore, the evidence does not support a finding that the Veteran's PTSD led to his development of a left eye disability. Instead, clinicians, while noting the Veteran's hypertension and PTSD, consistently found the Veteran's left eye condition to be of unknown etiology. While the Veteran may assert that his left eye disability is the result of his military service or his service-connected PTSD, as a lay person, he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of a particular disease such as an eye disability. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In Jandreau, the Federal Circuit specifically determined that a lay person is not considered competent to testify when the issue was medically complex, as with an eye disability. Therefore, while the Veteran may disagree with the conclusions that his left eye disability neither began during nor was otherwise caused by his military service and that it is similarly unrelated to his service-connected PTSD, he is not considered competent (meaning medically qualified) to address the etiology of this disease. In sum, the Board finds that the weight of the competent evidence of record does not support a finding that the Veteran was diagnosed with a left eye disability in-service, experienced symptoms of a left eye disability in-service, or otherwise experienced an event in-service that led to the later development of a left eye disability. The Veteran's service treatment records are devoid of any complaints of or treatment for a left eye disability, or symptoms associated with this condition. Accordingly, the Board finds that direct service connection for the Veteran's left eye disability is unwarranted. Furthermore, while the weight of the competent evidence of record clearly shows that the Veteran has PTSD and a left eye disability, it does not support a finding that these two conditions are in any way related, despite clinicians providing concurrent treatment for PTSD, hypertension, and the Veteran's left eye disability. Accordingly, the Board finds that secondary service connection for the Veteran's left eye disability is unwarranted. In conclusion, the criteria for service connection have not been met, and the Veteran's claim is denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left eye disability is denied. REMAND In order to appeal a RO decision to the Board, certain procedural steps must be followed to grant the Board jurisdiction to review the case. First, once a rating decision issues, the Veteran or his representative must file a timely notice of disagreement; so long as the issues being appealed are clear, the AOJ by law must then issue a statement of the case; finally, to convey jurisdiction to hear the case on the Board, the veteran must file a timely, substantive appeal. 38 C.F.R. §§ 19.26, 20.200, 20.201, 20.302(a). Here, in October 2014, the RO granted the Veteran's claim of entitlement to service connection for PTSD and assigned a 70 percent rating from September 20, 2006, to July 31, 2007, a 30 percent rating from August 1, 2007, to April 4, 2014, and a 70 percent rating from April 5, 2014. In November 2014, the Veteran filed a notice of disagreement as to this rating decision. While the RO subsequently in a February 2015 rating decision increased the Veteran's PTSD rating to 70 percent from the date of claim and granted a TDIU, this is not considered a full grant of benefits. As such, a statement of the case must still be issued, unless the Veteran withdraws his claim. As yet, a statement of the case does not appear to have been issued, and it is therefore proper to remand this claim to ensure that the Veteran is provided with a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, the issue listed in the notice of disagreement will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: Consider the issue of entitlement to a rating in excess of 70 percent for PTSD. If the benefit sought cannot be granted, a statement of the case should be issued in accordance with applicable law and regulations. The Veteran and his representative should be informed of the period of time within which he must file a substantive appeal to perfect his appeal to the Board concerning this issue. If a timely substantive appeal is not filed, the claim should not be certified to the Board. The Veteran has the right to submit additional evidence and argument on the matter that 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 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). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs