Citation Nr: 1800146 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 16-45 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral shoulder disability. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for residuals from oral surgery. 4. Entitlement to service connection for temporal arteritis. 5. Entitlement to service connection for a back disability. 6. Entitlement to service connection for prostate cancer. 7. Entitlement to service connection for colon cancer. 8. Entitlement to service connection for coronary artery disease (CAD). 9. Entitlement to service connection for bilateral hearing loss. 10. Entitlement to service connection for a left eye disability. 11. Entitlement to service connection for a right eye disability. 12. Entitlement to special monthly compensation (SMC) based on aid and attendance or housebound. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active service from January 1951 to January 1955. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision by the Muskogee, Oklahoma Department of Veterans Affairs (VA) Regional Office. In his September 2016 substantive appeal, the Veteran requested a video-conference hearing; however, he withdrew his request in July 2017 correspondence. The issues were certified to the Board in December 2016. Additional evidence which was not considered by the RO was provided by the Veteran and received in September 2017. No waiver of RO consideration of this evidence is necessary, as the Veteran's substantive appeal was received after February 2, 2013. See 38 U.S.C. § 7105 (e) (2012); VA Fast Letter 14-02 (May 2, 2014). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017). FINDINGS OF FACT 1. The Veteran does not have a current disability of either shoulder. 2. The Veteran does not have a current disability of either knee. 3. The Veteran does not have a current disability claimed as residuals of oral surgery. 4. The Veteran does not have a current disability claimed as temporal arteritis. 5. The Veteran's current back disability diagnosed many years after service, is not shown to be related to his active military service. 6. The Veteran's current prostate cancer diagnosed many years after service, is not shown to be related to his active military service. 7. The Veteran's current colon cancer diagnosed many years after service, is not shown to be related to his active military service. 8. The Veteran's current CAD diagnosed many years after service, is not shown to be related to his active military service. 9. The Veteran's current bilateral hearing loss diagnosed many years after service, is not shown to be related to his active military service. 10. The Veteran's left eye pseudophakia status post cornea transplant did not have its onset in service and is not related to active service. 11. The Veteran's right eye disabilities, to include blepharitis, posterior vitreous detachment, pseudophakia, and cellophane maculopathy did not have their onset in service and are not related to active service. 12. The Veteran is not service-connected for any disability; VA regulations do not provide for SMC when there are no service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 3. The criteria for service connection for a disability claimed as residuals of oral surgery have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 4. The criteria for service connection for a disability claimed as temporal arteritis have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 5. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 6. The criteria for service connection for prostate cancer and residuals are not met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 7. The criteria for service connection for colon cancer and residuals are not met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 8. The criteria for service connection for CAD are not met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 9. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 3.385 (2017). 10. The criteria for service connection for a left eye disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 11. The criteria for service connection for a right eye disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 12. SMC based on aid and attendance or housebound is not warranted as a matter of law. 38 U.S.C. § 1114 (2012); 38 C.F.R. § 3.350 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. Neither the Veteran nor his representative has raised any issues with the duty to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."). Thus, the Board need not discuss any potential issues in this regard. Service Connection Claims Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C. § 1110. Service connection requires competent evidence showing: (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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including arthritis, malignant tumors, heart disease, and bilateral hearing loss, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107 (b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Bilateral shoulder, bilateral knee, residuals of oral surgery, temporal arteritis The Veteran contends in statements that he is entitled to service connection for bilateral shoulder, bilateral knee, residuals of oral surgery, and temporal arteritis disabilities due to his military service. The service treatment records (STRs) are silent for any complaints, treatments, or manifestations of disabilities of the shoulders, left knee; any oral surgery performed, or dental complaints, as well as temporal arteritis while in service. The STRs document a puncture wound near the right knee, with subsequent treatment and no further right knee incidence. Upon discharge, examination of the upper extremities and lower extremities was clinically normal. Further, the only dental defects were missing teeth numbers 16, 17, and 32. The Veteran's post-service treatment records are also silent for any complaints, treatments, or manifestations of any of these disabilities. As there was an incident pertaining to the right knee during service, the Veteran was examined in a November 2015 VA examination, the Veteran indicated that he has a history of numbness of the right knee. He indicated that he was not currently experiencing any right knee pain. Physical examination revealed a normal right knee. He noted that the Veteran's history of right knee numbness was related to either an adverse effect of a right knee injection or related to a back condition. As noted above, the first requirement for service connection is a diagnosis of the condition. The above cited evidence reflects that the Veteran does not have current chronic disabilities pertaining to the shoulders, knees, residuals of a claimed oral surgery, and temporal arteritis at any time during the appeal period. The Board has also considered the lay statements of record. To the extent he claims he has chronic disabilities pertaining to the shoulders, knees, residuals of oral surgery, and temporal arteritis attributable to service, the Board finds that, as a lay witness, he is not competent to provide any of the diagnoses. See Jandreau, 492 F.3d at 1377. He is competent to report recurring aches and pain, however the record does not reflect clinical/laboratory testing supporting any diagnoses pertaining to the shoulders or knees; as well as residuals of any oral surgery, or temporal arteritis. Thus, on the facts of this case, his report of current disabilities is not deemed competent evidence supportive of an actual diagnoses. As such, the Board finds that the evidence is against a finding of competent and credible diagnoses of the claimed disabilities. Without valid diagnoses, discussion of the remaining criteria for service connection is not necessary and compensation for disabilities pertaining to the bilateral shoulders, bilateral knees, residuals of any claimed oral surgery, and temporal arteritis may not be awarded. Back, prostate cancer, colon cancer, CAD The Veteran contends that his disabilities, to include low back, prostate cancer and residuals, colon cancer and residuals, and CAD are due to his military service. After review of all the lay and medical evidence of record, the Board finds that the Veteran's current back arthritis, prostate and colon cancer and residuals, and CAD are not due to an incident or disease during service; there are no symptoms of arthritis, cancer, or CAD during active service, or continuous chronic symptoms since service, including to a compensable degree within the first post-service year. Service treatment records do not reveal any complaint of, diagnosis of, or treatment for of the back, prostate, colon, or heart. The Veteran has not alleged a continuity of symptomatology nor does the clinical evidence suggest continuous symptoms. The earliest post-service evidence of back complaints and diagnosis is dated in 2011; for prostate cancer, 2006; for colon cancer, 2001; and for CAD, 2001; more than 40 years after service separation. The more than 40 year gap between service and post-service complaints relevant to the Veteran's back, prostate, colon, and CAD is a factor that weighs against service incurrence. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000), 230 F.3d at 1333. The weight of the evidence shows that the current back, prostate, colon, and heart disabilities are not otherwise causally or etiologically related to service. There is no credible evidence of record linking the disabilities to service. The Veteran, as a lay person, is competent to report past and current back, prostate, colon, and heart disabilities; however, he is not competent to render a competent medical opinion regarding its etiology under the specific facts of this case, which include absence of back, prostate, colon, and heart symptoms until many years after service. Back arthritis, prostate cancer, colon cancer, and CAD are complex disease processes that involve unseen system processes that are not observable by the five senses of a lay person. For example, x-ray and other medical testing are needed to arrive at these medical diagnoses. For these reasons, the Veteran is not competent to diagnose arthritis, cancer, or CAD; or to opine as to the etiology of these diseases, where there is an absence of in-service injury, disease, or symptoms, and the credible reports of symptoms beginning many years after service. As noted, such opinions as to diagnosis and causation involve making findings based on history, complaints and symptoms, signs, medical knowledge, and clinical testing results; therefore, the Veteran's lay statements is of no probative value. Thus, in consideration of the foregoing, the Board finds that the evidence weighs against finding that the back, prostate, colon, and CAD disabilities may be presumed to have been incurred in service (see 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a)) or were otherwise causally or etiologically related to service (see 38 C.F.R. § 3.303 (d)); therefore, service connection must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Bilateral 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 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran has not alleged a continuity of symptomatology nor does the clinical evidence suggest continuous symptoms. The medical evidence demonstrates that the Veteran has current bilateral hearing loss disability as defined by VA. See the November 2015 VA examination report. In addition, VA concedes the Veteran's reported military noise exposure during service. However, the evidence does not show the Veteran's bilateral hearing loss first manifested during his period of service or is otherwise etiologically related to his period of service. The STRs do not indicate that the Veteran complained about hearing impairment; however, it is noted that in November 1954, his ears were irrigated because of excessive cerumen, and it was noted that the left ear had scarring from a history of perforation. Regarding a nexus to service, the November 2015 examiner opined that the current bilateral hearing loss is less likely than not related to military noise exposure as the current pattern of hearing loss is not consistent with a noise induced hearing loss but rather is consistent with age-related hearing loss. He also noted that the left ear hearing is also not consistent with damage from claimed left ear drum rupture in service. The Veteran has submitted no competent nexus evidence contrary to the VA examiner's opinion. The Veteran has been accorded ample opportunity to furnish medical evidence in support of his claim; he has not done so. See 38 U.S.C. § 5107 (2012) (a) (noting it is a claimant's responsibility to support a claim for VA benefits). The Board finds the 2015 VA examination report to be highly probative, as it is based on a thorough review of the Veteran's treatment records as well as his contentions. To the extent that the Veteran himself or his representative contend that a medical relationship exists between his current bilateral hearing loss and service, the Board again acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board finds, however, that the question regarding the potential relationship between the Veteran's hearing loss, and any instance of his military service, to include noise exposure or other injury, to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, a medical link between the Veteran's current bilateral hearing loss and his period of service has not been shown, and the claim fails on this basis. In the absence of any persuasive evidence that the Veteran's current hearing loss is etiologically related to active service, service connection is not warranted and the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Eyes The Veteran contends that his current bilateral eye disability is due to his military service. The STRs include a single complaint of conjunctivitis. No further eye complaints are noted. On December 1954 separation examination bilateral vision and clinical eye evaluation was normal. Post-service treatment records reveal a history of bilateral cataract surgery in 1988, as well as a left eye cornea transplant in 2001. During the November 2015 VA examination, the VA examiner diagnosed blepharitis, posterior vitreous detachment, pseudophakia, and cellophane maculopathy in the right eye and pseudophakia in the left eye and indicated the Veteran underwent a left eye cornea transplant. The examiner indicated that due to the length of time post-service, the current eye conditions are most likely not incurred during the Veteran's active military service, to include the single complaint of conjunctivitis. The Board finds that service connection for the Veteran's eye diagnoses is not warranted. Significantly, these eye disabilities are not shown in the record until decades after his discharge from active service. This lengthy period of time is a factor that weighs against the Veteran's claims for service connection on a direct incurrence basis. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, the eye disabilities have not been associated with his active service. The VA examiner did not relate the bilateral eye disabilities to service as reflected in the November 2015 VA medical opinion. Instead, the examiner indicated that the medical evidence did not support that these eye disabilities were a result of service. Significantly, there is no competent and credible evidence relating any of the Veteran's current eye disabilities to his military service. Therefore, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a). The only evidence linking his current eye disabilities to his military service are his own assertions. Again, the Board recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In this case, however, the causes of the Veteran's current eye disabilities involve complex medical etiological questions because they pertain to the origin and progression of the Veteran's eye conditions. The Veteran is competent to relate symptoms of his current eye disabilities that he experiences, but he is not competent to diagnose or opine on whether there is a link between the current bilateral eye disability and service because such conclusions require specific, highly specialized, medical knowledge and training regarding some unseen and complex processes of the eyes, knowledge of the various risk factors and causes of eye disorders, specific clinical testing for these eye conditions, and knowledge of likely date of onset and ranges of progression of eye disorders that the Veteran is not shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (holding that ACL is too "medically complex" for lay diagnosis based on symptoms); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a disorder capable of lay diagnosis). For these reasons, the Board finds that the weight of the competent and credible evidence is against a finding of a relationship between any of the Veteran's current bilateral eye disabilities and his active military service. Although the Board is sympathetic to his claim, for the above reasons, the preponderance of the evidence is against the claim for service connection for a bilateral eye disability, and the appeal must be denied. SMC SMC is authorized in particular circumstances in addition to compensation for service-connected disabilities. See 38 U.S.C. § 1114; 38 C.F.R. § 3.350. Entitlement to SMC benefits requires that any condition described be due to a service-connected disability. Here, there is no legal basis for the Veteran's SMC claim because he is not service-connected for any disability. Therefore, the SMC claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The service connection appeals are denied. SMC based on aid and attendance or housebound is denied. ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs