Citation Nr: 1543483 Decision Date: 10/09/15 Archive Date: 10/13/15 DOCKET NO. 13-03 210A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for an eye disability claimed as pre-glaucoma. 2. Entitlement to service connection for hearing loss disability of the right ear. 3. Entitlement to an initial rating in excess of 20 percent for lumbar spine strain. 4. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the left shoulder. 5. Entitlement to an initial rating in excess of 10 percent for right knee strain. 6. Entitlement to an initial rating in excess of 10 percent for left knee strain. 7. Entitlement to an initial compensable rating for restless leg syndrome of the right sciatic nerve. 8. Entitlement to an initial compensable rating for restless leg syndrome of the left sciatic nerve. 9. Entitlement to an initial compensable rating for plantar fasciitis of the right foot with degenerative changes. 10. Entitlement to an initial compensable rating for plantar fasciitis of the left foot with degenerative changes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from November 1980 until retirement in November 2010. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem. The issue of entitlement to service connection for an eye disability claimed as pre-glaucoma is decided in this decision. The remaining issues are REMANDED to the Agency of Original Jurisdiction. FINDING OF FACT The Veteran has not been shown to have any disability associated with pre-glaucoma. CONCLUSION OF LAW An eye disability claimed as pre-glaucoma was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2015). Proper notice from VA should inform the claimant and representative, if any, prior to the initial unfavorable decision on a claim of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service-connection claim, to include Veteran status, existence of a disability, a connection between service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding the issue decided herein, neither the Veteran nor representative has alleged prejudice with respect to notice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. The Board finds that VA's duty to notify has been satisfied. The Veteran was notified by letter in August 2010, prior to the initial adjudication of the claim in July 2011, of the criteria for establishing service connection, the evidence required, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. Nothing more was required. The Board also finds VA has complied with its duty to assist the Veteran in the development of his claim. Available service medical records and identified, available post-service treatment records were obtained. Neither the Veteran nor representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran was also provided a VA examination in October 2010 to determine the presence, nature, and etiology of the claimed eye disability. The examination was adequate, as it was predicated on a full reading of the Veteran's medical records in the claims file, interview of the Veteran, and examination with appropriate testing. All of the pertinent evidence of record was considered, to include the statements of the Veteran, and the examiner provided rationale for the opinion stated, relying on and citing to the records reviewed. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that VA's duties to notify and assist are met. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Disability means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1 (2015); Hunt v. Derwinski, 1 Vet. App. 292 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Congress specifically limited entitlement to service-connected disease or injury to cases where the disease or injury resulted in a disability. In the absence of a proof of present disability there can be no claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). A veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. VA shall consider all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, reasonable doubt shall be resolved in favor of the claimant. 38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. 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. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's service medical records note that he was seen in the optometry clinic in November 2008 for a vision check and pre-glaucoma was noted on examination. The subsequent service medical records are silent as to objective findings of glaucoma or other eye disability caused by pre-glaucoma. Moreover, there is no post-service medical evidence of glaucoma or other eye disability caused by pre-glaucoma. An October 2010 VA examination report notes the Veteran's history of pre-glaucoma since 2008. He denied any history of eye trauma or treatment. After examining the Veteran and reviewing the service medical records, the examiner stated that the Veteran was a glaucoma suspect due to his enlarged cup/disc ratio. However, at the time of examination, no clinical evidence of glaucoma damage was found. Glaucoma was not found. The Veteran has not presented or identified existing medical evidence that shows a diagnosis of glaucoma or disability caused by pre-glaucoma at any time during this appeal. Accordingly, service connection for such disability is not warranted. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Consideration has been given to the Veteran's own statements that he has an eye disability caused by pre-glaucoma. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). As to the specific issue in this case, eye disabilities falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372. An eye disability is not the type of condition that is readily amenable to lay diagnosis or probative comment regarding its etiology, as the evidence shows that a ophthalmological testing and other specific findings are needed to properly assess and diagnose the disorder. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran is competent to report vision problems. However, there is no indication that the Veteran is competent to make a diagnosis of glaucoma or eye disability caused by pre-glaucoma. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to make a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or has acquired any medical expertise in evaluating eye disorders. King v. Shinseki, 700 F.3d 1339 (Fed.Cir.2012). Accordingly, that lay evidence does not constitute competent or credible evidence and lacks probative value. As a final matter, the Board notes that the medical evidence shows that the Veteran has been diagnosed with presbyopia and astigmatism. To the extent that any claim is being alleged that pre-glaucoma caused presbyopia and astigmatism, congenital or developmental abnormalities and refractive error of the eye are not considered diseases or injuries within the meaning of applicable legislation governing the awards of compensation benefits. Thus refractive error of the eyes due to eye disorders such as presbyopia and astigmatism is not a disability for VA purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2015). While service connection may be granted, in limited circumstances, for superimposed disability on a constitutional or developmental abnormality, there is no evidence whatsoever that occurred in this case. VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240 (1995. As the Veteran has not shown a current disability for which service connection can be granted, the claim must be denied. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an eye disability, claimed as pre-glaucoma, is denied. REMAND The Veteran claims that he has right ear hearing loss disability related to noise trauma (to include from weapons training and power tool use) in service. Although the Veteran complained of hearing loss on a November 2010 pre-separation VA examination and audiometric testing performed during that examination revealed right ear hearing impairment, his impairment did not reach the specified level to be considered a disability as defined by VA regulation. 38 C.F.R. § 3.385 (2015). Thereafter, a July 2011 rating decision awarded service connection for tinnitus and left ear hearing loss disability incurred in service, but denied service connection for right ear hearing loss disability. The Veteran has provided a credible statement that his hearing loss has worsened since his most recent November 2010 VA examination, which was conducted several weeks prior to separation from service. The Board finds that because of the length of time since the last VA examination, almost five years, and lack of post-service examination, the Veteran should be scheduled for another VA examination. Prior to the examination, current treatment records should be obtained. A July 2011 rating decision granted service connection for restless leg syndrome of the right sciatic nerve, restless leg syndrome of the left sciatic nerve, plantar fasciitis of the right foot with degenerative changes, and plantar fasciitis of the left foot with degenerative changes, all rated 0 percent; degenerative arthritis of the left shoulder, right knee strain, and left knee strain, all rated 10 percent; and lumbar spine strain, rated 20 percent. VA examinations to determine the degree of severity of those service-connected disabilities were most recently conducted in 2010. Thereafter, in a substantive appeal received in February 2013, the Veteran stated that those disabilities had worsened. When a Veteran claims that a service-connected disability is worse than when originally rated, and when the available evidence is too old for rating the current condition, VA's duty to assist includes providing a current examination. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Veteran should be scheduled for examinations to determine the current severity of the disabilities. Prior to scheduling the examination, all outstanding treatment records pertinent to the issues on appeal should be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and obtain the names and addresses and approximate dates of treatment of all medical care providers, VA and non-VA that treated him for hearing loss, restless leg syndrome, plantar fasciitis, low back strain, left shoulder arthritis, and knee strain since service. After the Veteran has signed the appropriate releases, those records not already in the claims file should be obtained and associated with the record. All attempts to procure records should be documented in the record. If records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts to allow them the opportunity to obtain and submit those records for VA review. 2. Then, schedule the Veteran for a VA audiological examination. The examiner must review the claims file and should note that review in the report. Appropriate testing should include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. The examiner should specifically report the auditory thresholds in the frequencies 500, 1000, 2000, 3000 and 4000 Hertz for the right ear. If a hearing loss disability of the right ear is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that right ear hearing loss disability is related to the Veteran's service. The examiner should acknowledge and discuss the Veteran's lay statements that he his hearing loss began in service after noise exposure. The rationale for all opinions expressed must be provided. 3. Schedule the Veteran for a VA examination by an examiner with the sufficient expertise to ascertain the current severity and manifestations of service-connected right and left foot disabilities. The examiner must review the claims file and should note that review in the report. Any indicated studies should be performed. All information required for rating purposes must be provided by the examiner. The examiner should provide an opinion concerning the impact of the Veteran's service-connected foot disabilities on his ability to work and daily living activities. 4. Schedule the Veteran for a VA examination to determine the current severity of a lumbar spine disability. The examiner must review the claims file and should note that review in the report. The examination should include discussion of the Veteran's documented medical history and assertions. All indicated tests should be accomplished, to include an electromyogram and nerve conduction studies if appropriate, and all clinical findings should be reported in detail. If a separate neurological examination is necessary, that examination should be scheduled. The examination should set out orthopedic and neurological findings indicating the extent and severity of the service-connected lumbar spine disability. The examiner should set forth all examination findings, and provide the complete rationale for the conclusions reached. The examiner should provide the following: (a) The examiner should identify, and comment on the frequency or extent of all neurological symptoms associated with the lumbar spine disability, to include any radiculopathy. All neurological manifestations should be described in detail and the specific nerve affected should be specified, with the degree of paralysis caused by the service-connected disability stated. (b) The examiner should conduct range of motion testing of the lumbar spine, expressed in degrees. The examiner should make specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination associated with the lumbar spine disability. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss of the lumbar spine due to pain or any of the other symptoms during flare-ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limitation of motion. (c) The examiner should indicate whether any current muscle spasm or guarding is severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. (d) The examiner should indicate whether the Veteran has any ankylosis of the lumbar spine; and, if so, the extent of any ankylosis, and whether the ankylosis is favorable or unfavorable. (e) The examiner should state the number of weeks, if any, during the past 12 months, that the Veteran has had incapacitating episodes, which means a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. (f) The examiner should provide an opinion concerning the impact of the Veteran's service-connected lumbar spine disability on his ability to work and daily living activities. (g) Lastly, the examiner should opine as to whether the Veteran's service-connected disabilities make him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. The service-connected disabilities are obstructive sleep apnea, depressive disorder, lumbar spine disability, left shoulder disability, bilateral knee disability, tinnitus, bilateral foot disability, left thumb disability, left ear hearing loss, erectile dysfunction, left thumb scar, and bilateral restless leg syndrome of the sciatic nerve. 5. Schedule the Veteran for a VA examination by an examiner with the sufficient expertise to ascertain the current severity and manifestations of service-connected right and left restless leg syndrome. The examiner must review the claims file and should note that review in the report. Any indicated studies should be performed. All information required for rating purposes must be provided by the examiner. 6. Schedule the Veteran for a VA examination to determine the current level of severity of left shoulder and right and left knee disabilities. The examiner must review the claims file and should note that review in the report. Any indicated studies should be performed. All information required for rating purposes must be provided by the examiner. All necessary tests and studies should be performed. All pertinent pathology associated with the service-connected left shoulder and knee disabilities, to include range of motion studies in degrees; functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination; additional limitation of motion during flare-ups and following repetitive use; and finding regarding any instability and subluxation should be noted in the examination report. The examiner should also provide an opinion concerning the impact of the Veteran's service-connected left shoulder and knee disabilities on his ability to work and daily living activities. 7. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs