Citation Nr: 1615121 Decision Date: 04/14/16 Archive Date: 04/26/16 DOCKET NO. 10-08 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for an eye condition. 3. Entitlement to service connection for a blood condition, to include hypertension and anemia. 4. Entitlement to service connection for a bilateral knee condition. 5. Entitlement to service connection for a skin condition. 6. Entitlement to a nonservice-connected (NSC) pension. ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1972 to May 1975. This appeal is before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction has since been transferred to the RO in Roanoke, Virginia. The issue of entitlement to service connection for tinnitus has been raised by the record in an October 2015 claim, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issues of entitlement to service connection for hearing loss and entitlement to a NSC pension are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. There is no indication that any eye condition is related to service. 2. There is no indication that any blood condition is related to service or manifested within one year of separation from service. 3. There is no indication that any knee condition is related to service or manifested within one year of separation from service. 4. There is no indication that any skin condition is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for an eye condition have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. The criteria for service connection for a blood condition, to include hypertension and anemia, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 3. The criteria for service connection for a bilateral knee condition have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 4. The criteria for service connection for a skin condition have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letter dated November 2008. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records have been obtained, as have relevant prison medical records identified by the Veteran. There is no indication that the Veteran has been treated at any VA facility. The Board notes that in his February 2010 substantive appeal, the Veteran argued that VA had violated its duty to assist by failing to obtain records from one of the prisons identified as a source of records. The RO, however, made two attempts to obtain these records in February and March 2009. No response was received, and the Veteran was notified so in March 2009. The Board therefore finds that VA has fulfilled its duty to assist in reasonable efforts to obtain these records. With respect to the Veteran's claims for service connection for conditions of the eyes, knees, blood, and skin, he has not been provided with a VA examination. VA has a duty to provide a medical examination where there is (1) competent evidence of a current disability or symptoms thereof; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability is associated with service; and (4) insufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C.A. § 5103A(d)(2) (2002); 38 C.F.R. § 3.159(c)(4)(i). As explained below, the Board finds that there is no indication that any such conditions are associated with service, and VA therefore has no duty to provide a medical examination. Therefore, VA has satisfied its duties to notify and assist, additional development efforts would serve no useful purpose, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection 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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as arthritis, primary anemia, and hypertension, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining 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 claimant 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). 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. Eye Condition The Veteran claims service connection for an eye condition. The Board notes that refractive error of the eye alone is not a disability for VA compensation purposes. See 38 C.F.R. § 4.9. Service treatment records include the Veteran's April 1972 induction examination, in which the only eye disability noted was defective visual acuity. Service treatment records also include the Veteran's July 1976 examination for induction into the Army National Guard, where again no eye disability beyond defective visual acuity was noted. Uncorrected distance vision was 20/70 corrected to 20/20 in both eyes. Near vision was normal. In the report of medical history accompanying his April 1972 examination, the Veteran reported an unspecified history of eye trouble. By this, it appears the Veteran was referring to his need for glasses, as he denied any eye trouble in the report of medical history accompanying his July 1976 examination. Prison medical records show that in May 1995 the Veteran reported pain behind the eyeball, tearing, and redness. He had never been on eye medication before, but he had worn glasses for 20 years. He was diagnosed with a bilateral eye strain, and prescribed artificial tears and painkillers. In February 1996, he reported blurred vision in addition to his eye pain. He requested an evaluation for reading glasses in November 2002, and he received a new prescription in March 2003. He received new glasses in January 2007. He reported pain in his right eye in September 2008. In his November 2008 claim, the Veteran stated that he was losing sight in his right eye. In a December 2008 statement, the Veteran elaborated that he suffers pain in both eyes and cloudy vision due to skydiving exercises in service. The Board finds that there is no indication in the record that any eye condition suffered by the Veteran is related to service. The Veteran's April 1972 induction examination noted defective visual acuity, and his July 1976 examination on induction into the Army National Guard similarly reflected diminished visual acuity and no disabilities eligible for service connection. The Veteran has a 1995 diagnosis of a bilateral eye strain, but has described no way in which service could have caused such an eye strain. The Board recognizes that the Veteran has indicated his belief that parachuting exercises led to an eye disability, but he has provided no indication as to why such exercises should indicate a cause for a bilateral eye strain, the only diagnosis beyond refractive error that he has been assigned. There is no indication in his medical records that he suffers from a condition that could be attributed to parachuting exercises. For these reasons, the Board finds that there is no indication that any eye condition suffered by the Veteran is related to service. Service connection must therefore be denied. Blood Condition The Veteran claims service connection for a "blood condition," which has been interpreted to include hypertension and anemia. Service treatment records do not reflect any symptoms of or treatment for any blood condition. In the report of medical history accompanying his July 1976 examination for induction into the Army National Guard, the Veteran denied having ever experienced high or low blood pressure. Prison medical records reflect that the Veteran exhibited elevated blood pressure in July 1997, but at that time had no history of hypertension. Elevated blood pressure was measured several times over the ensuing months. He was diagnosed in October 1997 with essential hypertension. In June 1998, his medical chart was revised to include a diagnosis of hypertension. He continued treatment in the subsequent years. Prison medical records further show that the Veteran was first suspected of exhibiting chronic anemia in November 2006. A December 2006 note reflects a diagnosis of chronic anemia with onset in early 2006, as well as his history of hypertension. After further blood tests in January 2007, the Veteran was treated for anemia due to a vitamin B-12 deficiency in February 2007. He began to receive monthly vitamin B-12 injections. In the Veteran's November 2008 claim, he claimed service connection for "light blood." VA interpreted this as a claim for hypertension in its November 2008 notice letter. In a December 2008 statement, he reported that sometimes he feels like he cannot stand up because of his high blood pressure. As an initial matter, the Board notes that it is unclear whether the Veteran intended to claim service connection for anemia or for hypertension. The RO proceeded as though the claim was for hypertension. The Board will review the evidence to construe the claim as broadly as possible in the Veteran's favor. The Board finds that there is no indication that any current hypertension or anemia suffered by the Veteran bears any relationship to service. Service treatment records do not make any reference to anemia, hypertension, or any other blood condition. Prison treatment records show that elevated blood pressure was first exhibited in July 1997 and anemia had an onset in early 2006. There is no evidence that anemia or hypertension was caused by service, and the Veteran has not stated why he believes either condition is related to service. For these reasons, the Board finds that there is no indication that any "blood condition" suffered by the Veteran, to include hypertension or anemia, is related to service or manifested within one year of service. Service connection must therefore be denied. Bilateral Knee Condition The Veteran claims service connection for a bilateral knee condition. Service treatment records do not reflect any symptoms of or treatment for knee issues. In the report of medical history accompanying his July 1976 examination for induction into the Army National Guard, the Veteran denied having ever experienced swollen or painful joints or a "trick" or locked knee. Prison medical records reflect that in January 2006, the Veteran reported pains in both legs on waking up, leading to achiness and weakness throughout the day. The pain had begun three months prior. In November 2007 he reported severe pain radiating from the left knee to the foot, occurring once per day, lasting two to five hours. He also reported pain radiating from the middle right calf to foot occurring constantly. Both pains had existed for five years. Pain was described as a needle sticking in his leg and knee stiffness. In December 2007 he was diagnosed with degenerative joint disease in both knees. The Board finds that there is no indication that any knee condition suffered by the Veteran bears any relationship to service. Service treatment records do not make any reference to the Veteran's knees. Prison treatment records show that the Veteran sought treatment in January 2006 and was eventually diagnosed with degenerative joint disease in December 2007. There is no evidence that this or any other knee condition was caused by service, and the Veteran has not stated why he believes such a condition is related to service. For these reasons, the Board finds that there is no indication that any knee condition suffered by the Veteran is related to service or manifested within one year of service. Service connection must therefore be denied. Skin Condition The Veteran claims service connection for a skin condition. Service treatment records do not reflect any symptoms of or treatment for a skin condition. In the report of medical history accompanying his July 1976 examination for induction into the Army National Guard, the Veteran denied having ever experienced any skin diseases. Prison medical records include a May 2001 note which refers to the Veteran's vitiligous patches on his skin. In September 2002 the Veteran requested a dermatology consultation due to itchy and painful discolorations throughout his body. A cortisone cream was prescribed in October 2002. Treatment for vitiligo is reflected in the records intermittently over the subsequent years. A May 2008 indicates that when asked about his hyperpigmentation, the Veteran stated that it began about five years prior. In his November 2008 claim, the Veteran stated that his skin was pink. In a December 2008 statement the Veteran elaborated that his skin is turning pink all over his body. The Board finds that there is no indication that any skin condition suffered by the Veteran bears any relationship to service. Service treatment records do not make any reference to any skin condition. Prison treatment records suggest that the Veteran began to exhibit vitiligo sometime around 2001. There is no evidence that vitiligo or any other skin condition was caused by service, and the Veteran has not stated why he believes a skin condition is related to service. For these reasons, the Board finds that there is no indication that any skin condition suffered by the Veteran is related to service. Service connection must therefore be denied. ORDER Service connection for an eye condition is denied. Service connection for a blood condition, to include anemia and hypertension, is denied. Service connection for a bilateral knee condition is denied. Service connection for a skin condition is denied. REMAND Hearing Loss The Veteran claims service connection for hearing loss. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. Service treatment records include the Veteran's April 1972 induction examination. The Veteran's audiometry results revealed pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 15 Not tested 15 LEFT 15 15 15 Not tested 15 No audiological abnormality was noted. In the accompanying report of medical history, the Veteran denied having ever experienced hearing loss. Service treatment records also include the Veteran's July 1976 examination for induction into the Army National Guard. The Veteran's audiometry results revealed pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 15 LEFT 20 5 5 15 10 No audiological abnormality was noted. In the accompanying report of medical history, the Veteran denied having ever experienced hearing loss. Service treatment records do not otherwise reflect any symptoms of or treatment for hearing loss. In his November 2008 claim, the Veteran stated that he was an assistant gunner in service, which was hard on his hearing. In a December 2008 statement, the Veteran reported that he can hear but it can be hard to understand speech. The RO attempted to provide a VA examination of the Veteran's claimed hearing loss. The Veteran, however, is incarcerated. In August 2015 the RO was informed that the prison would not transport the Veteran for non-emergent/urgent care and did not have audiological testing equipment calibrated to meet the criteria for a VA examination. Furthermore, the RO did not have portable audiological equipment to take to the Veteran. With no evidence of a current hearing loss disability, the Veteran's claim was denied. In August 2015, the Veteran obtained a private audiological examination, at which the audiologist diagnosed bilateral moderate hearing loss. VA did not receive this evidence until October 2015, after the most recent supplemental statement of the case was issued in August 2015. In March 2016, the Veteran declined to waive AOJ review of this new evidence. The Board therefore remands this issue for the issuance of a supplemental statement of the case. 38 C.F.R. § 19.37. NSC Pension The Veteran claims entitlement to nonservice-connected (NSC) pension on the basis of unemployability to due nonservice-connected disorders. Initially, the Board finds that because the Veteran had more than 90 days of active military, naval, or air service during the Vietnam War, he meets the threshold service requirements of 38 C.F.R. § 3.3(a)(3)(i) for nonservice connected pension. The Veteran's claim for a NSC pension was denied based on a determination that he was not permanently and totally disabled, and thus did not meet the requirements of 38 C.F.R. § 3.3(a)(3)(vi)(B). Since filing his substantive appeal, however, the Veteran has reached 65 years of age, and thus meets the alternate requirement of 38 C.F.R. § 3.3(a)(3)(vi)(A). The Board therefore finds that further development is necessary to determine the Veteran's eligibility for a NSC pension. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. 2. Complete the necessary development for the Veteran's entitlement to a NSC pension now that he is 65 years of age. 3. After completing the above, and any other development deemed necessary (which may include obtaining a VA opinion) readjudicate the appeal on the record, to include new evidence submitted by the Veteran in August 2015. If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board. 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs