Citation Nr: 1638418	
Decision Date: 09/28/16    Archive Date: 10/07/16

DOCKET NO.  11-26 871	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for right-sided arachnoid cyst.

2.  Entitlement to service connection for an eye disability.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Dominic Jones, Associate Counsel





INTRODUCTION

The Veteran served on active duty from April 1956 to March 1959.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

This matter was previously before the Board in January 2016.  In its decision, the Board remanded the claims to associate medical records and to afford the Veteran VA examinations.  For the reasons stated below, the Board finds there has been substantial compliance with its directives.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran's right-sided arachnoid cyst was not incurred in service.

2.  The Veteran's eye disability was not incurred in service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for right-sided arachnoid cyst have not been met.  38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015).

2.  The criteria for service connection for an eye disability have not been met.  38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VA's Duty to Notify and to Assist

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015).  A standard November 2007 letter satisfied the duty to notify provisions.

VA also has a duty to provide assistance to substantiate a claim.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015).  The RO attempted to obtain the Veteran's service treatment and personnel records.  However, a September 2008 memorandum outlined a formal finding of unavailability of the Veteran's service treatment records.  In view of this information, the Board finds that it is reasonably certain that such records do not exist and that further efforts to obtain the records would be futile.  See 38 U.S.C.A. § 5103A (c); 38 C.F.R. § 3.159 (c)(2).  Post-service VA and private treatment records have also been obtained, including pursuant to the Board's remand.  However, the Board further notes that post-service private treatment records from the Palms West Hospital from April 1986 to August 1986 were unavailable as the record indicates they were purged by the hospital facility.

The Veteran was provided VA medical examinations in February 2016, pursuant to the Board's remand.  The examinations and medical opinions are sufficient evidence for deciding the claim.  The reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations.  Thus, VA's duty to assist has been met.

II. Legal Principles

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2015).  "To establish a right to compensation for a present disability, a veteran must show: "(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"-the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 

The record indicates that the Veteran's service treatment records are unavailable for review.  The Board recognizes that there is a heightened obligation to assist the Veteran in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases in which records are presumed to have been, or in actuality were, destroyed were in the possession of the government.  See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005) ("[W]hen VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources"); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)).

III. Analysis

Arachnoid Cyst Claim

The Veteran contends that his arachnoid cyst was caused by a tank injury he sustained when he was thrown out of the loader seat of a tank, hitting the right side of his head and knocked unconscious.  See August 2007 statement.

The Veteran received a VA examination in February 2016 where he was noted as having an arachnoid cyst in his brain, thus satisfying the requirement of a present disability.  Additionally, the Veteran's report of hitting his head on the inside of a tank, considering the Board's heightened obligation to consider the benefit of the doubt in his circumstance, satisfies the in-service incurrence of an injury.  Therefore, the sole remaining element is whether there is a causal connection between the Veteran's head injury and his arachnoid cyst.

The February 2016 VA examiner opined that the Veteran's cyst was less likely than not incurred in or caused by the in-service injury.  The rationale provided was that the Veteran was diagnosed with the arachnoid cyst in 1987, nearly 30 years after his period of active service.  The examiner further indicated after detailing the Veteran's account of the injury that the Veteran did not seek any treatment while in service and his first loss of consciousness was in 1987.  Additionally, the examiner noted that the Veteran never sought any treatment during his entire enlistment from August 1956, the date of the incident, until 1959 and was able to remain on active duty without difficulty.

The Veteran has submitted several statements from individuals attesting to his in-service injury.  An August 2007 statement from a friend of the Veteran related that they were not given headwear while undergoing tank training.  Another statement from an individual who had been stationed with the Veteran recounted that he was aware of the Veteran's tank injury while they were in service.  Nonetheless, as noted above, the Board has found that the Veteran suffered an injury to his head while in service.  Additionally, to the extent that these statements suggest a causal connection between the Veteran's arachnoid cyst and such injury, the Veteran's friend's lay statements are not competent to suggest such connection.  The same holds true for the Veteran's sincere belief that his cyst is the result of his in-service head injury.  Even considering the Board's heightened duty to consider carefully the benefit of the doubt in this case; the lay statements presented are not competent to identify the etiology of the Veteran's arachnoid cyst.

The Board thus finds that the preponderance of the evidence is against a finding that the Veteran's arachnoid cyst was incurred in service because the nexus element of the claim is not satisfied.  Considering the medical opinion offered by the VA examiner and the entire record including the statements of the Veteran and his acquaintances, service connection is not warranted for this condition.  As the preponderance of the evidence is against the claim, further application of the benefit-of-the-doubt doctrine is not warranted.  See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015).


Eye Disability Claim

The Veteran contends that a current disability of his eye was also caused by the tank injury he described as occurring in service.  The Veteran has described the claimed condition as a "freckle on the back side" of his eye.  See August 2007 statement.  As will be noted below, the Veteran has several eye conditions, and notwithstanding the Veteran's description the Board will consider each in turn as the scope of his claim broadly includes the conditions.

The Veteran received a VA examination for his eyes in February 2016 at which time he was diagnosed as having four disabilities of the eyes: (1) nuclear sclerotic cataract of both eyes, (2) choroidal nevus of the right eye, (3) non-exudative age related macular degeneration of both eyes, and (4) a corneal scar of his left eye.  Thus, the Veteran has several present eye disabilities.  Additionally, considering the Board's heightened duty in the present case, the Board again finds that the Veteran's tank injury occurred while in service.  Thus, the issue again remains whether any present eye disability is attributable to the Veteran's tank injury.

With regard to the nuclear sclerotic cataract of both eyes, the VA examiner opined that this was less likely than not incurred in service.  The rationale presented was that this condition occurs in the general population and is due to aging.  With regard to the choroidal nevus of the right eye, the examiner opined that this was less likely than not due to the Veteran's injury in service.  The rationale here was that these occur in the general population.  With regard to the macular degeneration, the examiner opined that this condition was also less likely than not incurred in service.  The rationale given this condition can occur in the older Caucasian population and can also be hereditary in nature.  Finally, with regard to the Veteran's corneal scar, the examiner opined that this condition was less likely than not incurred in service.  The rationale here was that this was due to the Veteran having had a limboid dermal cyst removed from the inferotemporal area of his cornea when he was an infant.

The Board notes that the Veteran is of the opinion that the "freckle" in his right eye was incurred in service.  However, as noted above, he is not competent to provide this opinion.  The February 2016 VA examiner comprehensively addressed each of the Veteran's eye disabilities.  In each case, the opinion was that each was less likely than not incurred in service.  The implication is that none of the eye disabilities are related to the tank injury, but are essentially from the natural process of the human condition and aging.  The evidence of record thus weighs against a finding of service connection as the nexus element has not been met, and as such the benefit of the doubt doctrine is not further applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Consequently, service connection for an eye disability is not warranted.


ORDER

Service connection for right-sided arachnoid cyst is denied.

Service connection for an eye disability is denied.




____________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs