Citation Nr: 1800350 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 17-01 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for bilateral cataracts, to include as due to radiation exposure or as secondary to a service-connected eye disability. 2. Entitlement to service connection for coronary artery disease (CAD), also claimed as myocardial infarction/ischemic changes with scarring/damage, to include as due to radiation exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Elizabeth Jamison, Associate Counsel INTRODUCTION The Veteran had active duty in the United States Navy from January 1959 to January 1963. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which in relevant part, denied entitlement to service connection for bilateral cataracts and CAD. The Veteran did not initiate an appeal via a notice of disagreement (NOD) following the April 2015 rating decision. Instead, a claim to reopen the issues on appeal was received in July 2015. An August 2015 rating decision continued the denial of these claims. Thereafter, a NOD on the required form was received in August 2016. A statement of the case (SOC) was issued in November 2016. The Veteran perfected a timely substantive appeal via VA Form 9 in December 2016. Applicable regulations provide that if new and material evidence was received during an appellate period following a RO decision (one year for a rating decision and 60 days for a SOC) or prior to an appellate decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2017); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367 - 68 (Fed. Cir. 2011). In the present case, new and material evidence concerning the claims was received within one year of the April 2015 rating decision in the form of the Veteran's statements and articles regarding radiation exposure received in July 2015. As this evidence is considered as having been filed in connection with the claim that was pending at the beginning of the appeal period, the April 2015 rating decision did not become final with respect to this issue. See 38 C.F.R. § 3.156(b). Accordingly, the claims remain pending, and are appropriately characterized as de novo claims for service connection. The Veteran submitted a supplemental claim in May 2017 seeking entitlement to service connection for "old MI [myocardial infarction] w/ischemic changes and scarring." A July 2017 rating decision denied the claim. A NOD was received later in July 2017. A SOC was issued in September 2017. The Veteran submitted a VA Form 9 to perfect the appeal that same month. The Veteran's NOD noted that this claim should be consolidated with his pending claim for a heart condition. His VA Form 9 explained that he submitted the supplemental claim "to be sure that it was included with [his] claim for coronary artery disease." Accordingly, as reflected on the title page of this decision, the issue is reflected as a claim for CAD, to include myocardial infarction/ischemic changes with scarring/damage. In June 2017, the Veteran and his spouse testified in person before the undersigned Veterans Law Judge during a Board hearing; a transcript of the proceeding is of record. In September 2017, VA received an Appointment of Veterans Service Organization (VSO) as Claimant's Representative (VA Form 21-22) designating Larry Greene from the Disabled American Veterans (DAV) as the Veteran's power of attorney (POA). Mr. Greene appeared on behalf of the Veteran at the June 2017 hearing before the Board. However, the name of the VSO was not indicated on the VA Form 21-22. Therefore, upon remand, DAV should provide an updated and completed VA Form 21-22. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Bilateral cataracts The Veteran contends that service connection is warranted for bilateral cataracts, to include as due to radiation exposure or as secondary to a service-connected eye disability. Service-connection is currently in place for an eye condition due to trauma in service (rated as "1 eye 5/200; vision 20/40 in other"). At the June 2017 hearing before the Board, the Veteran testified that a private care provider, Dr. R., had informed him in approximately 2006 or 2007 that the left cataract was due to overcompensation by the left eye for the loss of the right eye. Additionally, the Veteran testified that exposure to radiofrequency radiation (RFR) while serving as a signalman below the radar and radio rooms on the U.S.S. Randolph was also a contributing factor to his cataracts. Personnel records are consistent with his description of his service. In support of this theory of entitlement, the Veteran submitted an article from the Naval Safety Center which states that, "There is a higher risk of heat damage for organs that have poor temperature control, such as the lens of the eye." The Veteran was afforded VA examinations in conjunction with his service-connected eye condition in 2010 and 2014; however, a medical opinion has not been obtained to address the nature and etiology of his cataracts. The duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). Where the record before the Board is inadequate to render a fully informed decision, a remand is required in order to fulfill VA's statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). In this case, the Board finds that remand is necessary in order to gather additional medical records and obtain a medical opinion, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). Accordingly, efforts should be made to obtain treatment records from Dr. R. and a medical opinion should be obtained to address the Veteran's contentions regarding the etiology of his bilateral cataracts. Heart condition The Veteran contends that service connection is warranted for CAD, to include as due to radiation exposure. At the June 2017 hearing before the Board, the Veteran testified that he suffered a heart attack in 1995; subsequently, his doctors informed him that they could not put stents in his arteries because they were so small. He contended that the doctors were alluding to an external force as the cause of this condition, rather than a biological manifestation. The Veteran further testified as to his belief that his heart condition is due to RFR exposure in service, as described above. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159 (2017). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The threshold for finding a link between current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Here, the Veteran has suffered from a heart attack and been diagnosed with CAD, as documented in his private and VA treatment records. Additionally, he has provided lay evidence of exposure to RFR in service. This lay testimony is consistent with his service records. Finally, the Veteran submitted an article from the Naval Safety Center which states that the "type of biological effect on humans from RFR depends on the frequency of the electromagnetic wave... [t]he severity of the biological effect depends on the intensity (strength) of the RFR." Thus, there is evidence of a current disability, an in-service event, and an indication that the disability may be associated with RFR exposure in service. However, the Veteran has not been afforded a VA examination in conjunction with his claim. Accordingly, remand is required to obtain a medical opinion to assess the nature and etiology of the Veteran's heart condition. McLendon, 20 Vet. App. 79. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the Veteran's claims file all outstanding VA treatment records documenting treatment for cataracts and a heart condition. 2. Afford the Veteran the opportunity to identify and submit any outstanding private treatment records. Send the Veteran a letter requesting that he identify the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, who have evaluated or treated him for cataracts and a heart condition. This request should include records from Dr. R. in 2006-2007 as referenced in the Veteran's June 2017 testimony to the Board. Specifically request that the Veteran furnish, or furnish the appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. 3. If the Veteran responds, assist him in obtaining any additional evidence/records identified, following current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any treatment records, either VA or non-VA, cannot be obtained after reasonable efforts, issue a formal determination documented in the claims file that such records do not exist or that further efforts to obtain such records would be futile. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, per 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. After all records and/or responses received from each contacted entity have been associated with the claims file (to the extent possible), schedule the Veteran for VA examinations to obtain medical opinions which address the Veteran's claims of entitlement to service connection for bilateral cataracts and a heart condition. The contents of the electronic claim files (in VBMS and Virtual VA), to include a copy of this Remand, are to be made available to the designated examiner(s) for review. The examiner(s) should note in the medical report that this action has been accomplished. All tests and studies, as well as the clinical findings contained therein, should be reported in detail. The examiner is asked to provide an opinion addressing the following questions: a. Bilateral cataracts i. Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral cataracts were caused by his service-connected eye condition due to trauma in service (rated as "1 eye 5/200; vision 20/40 in other")? The examiner should address the Veteran's contention that a private doctor informed him that the left cataract was due to overcompensation for the loss of the right eye. ii. Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral cataracts have permanently progressed at an abnormally high rate due to or as the result of his service-connected eye condition (i.e., aggravated) due to trauma in service (rated as "1 eye 5/200; vision 20/40 in other")? The examiner should address the Veteran's contention that his private doctor informed him that the left cataract was due to overcompensation for the loss of the right eye. iii. Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral cataracts were caused by his exposure to radiofrequency radiation in service? The examiner should address the Veteran's lay statements regarding radiation exposure as well as the medical articles (Acquisition Safety-Radio Frequency Radiation (RFR) Hazards by the Naval Safety Center and Ionizing Radiation and Aging: Rejuvenating an Old Idea by the AGING Journal) submitted in support of the Veteran's contentions. b. Heart condition i. Is it at least as likely as not (50 percent or greater probability) that the Veteran's heart condition (CAD with myocardial infarction/ischemic changes with scarring/damage) was caused by his exposure to radiofrequency radiation in service? The examiner should address the Veteran's lay statements regarding radiation exposure as well as the medical articles (Acquisition Safety-Radio Frequency Radiation (RFR) Hazards by the Naval Safety Center and Ionizing Radiation and Aging: Rejuvenating an Old Idea by the AGING Journal) submitted in support of the Veteran's contentions. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The medical professional should discuss the particulars of this Veteran's medical history and the relevant medical sciences that apply to this case, which may reasonably make clear the medical guidance in the study of this case. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. Review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the above and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the appeal is returned 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. §§ 5109B, 7112 (2012). _________________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).