Citation Nr: 1800748 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-14 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a left eye disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: James McElfresh, II, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1967 to May 1969. He received the Combat Infantryman Badge and Purple Heart, among other decorations, for this service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2013 and June 2014 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Salt Lake City, Utah. The Veteran was afforded a hearing before a Veterans Law Judge in May 2015. A written transcript of this hearing is of record. These issues were previously before the Board in October 2015, at which time they were remanded for additional development. The required development for the issue decided herein has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A current left eye disability was not incurred in service, has not been continuous since service separation, and did not manifest to a compensable degree within a year thereafter. 2. A current left eye disability is not due to an in-service disease, injury, or incident therein, and may not be presumed to be due to service. CONCLUSION OF LAW The criteria for the award of service connection for a left eye disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In the present case, there is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Regarding the duty to assist in this case, VA has secured or attempted to secure all relevant documentation required by the VCAA or identified by the Veteran. The Veteran's service treatment records, VA treatment records, and any identified private treatment records have all been obtained. The Veteran was afforded a VA medical examination for the disability on appeal. The VA and private medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal, as it is competent medical evidence pertaining to the existence and etiology of the claimed current disability sufficient to decide the claim. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. All identified and available relevant documentation has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the claims. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to VA's duty to assist). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. The Veteran seeks service connection for a chronic left eye disability. He asserts that during service in Vietnam, he dove into a foxhole while under enemy fire, and sustained a contusion to the left side of his face, injuring his eye; therefore, service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran has also been awarded the Combat Infantryman's Badge, indicative of his participation in combat in Vietnam during service. Pursuant to 38 U.S.C. § 1154(b), with respect to combat veterans, "[VA] shall accept as sufficient proof of service- connection . . . satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service . . . Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary." See also 38 C.F.R. § 3.304(d). 38 U.S.C. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522- 23 (1996). 38 U.S.C. § 1154(b) does not establish service connection for a combat veteran; it aids him or her by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Wade v. West, 11 Vet. App. 302, 305 (1998) (holding that "a combat veteran who has successfully established the in-service occurrence or aggravation of an injury pursuant to § 1154(b), must still submit sufficient evidence of a causal nexus between that in-service event and his or her current disability"). A veteran (or in this case, the appellant) must still generally establish the claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). In the present case, the Veteran's DD-214 reflects service in Vietnam. For such veterans, exposure to herbicides is presumed. See 38 C.F.R. § 3.309(e). If the Veteran was exposed to an herbicide agent during service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied; chloracne or other acneform disease consistent with chloracne, Type II diabetes (also known as Type II diabetes colitis or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutaneous tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchitis, laryngitis or trachea) and soft tissue sarcomas, other than osteosarcoma, chondrosarcoma Kaposi's sarcoma, or mesothelioma. 38 C.F.R. § 3.309(e). While ischemic heart disease is noted to be a presumptive disorder under 38 C.F.R. § 3.309(e), this term does not include hypertension. 38 C.F.R. § 3.309(e), Note 3. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Considering first the service treatment records, the Veteran was treated in August 1968 for lacerations and severe but superficial soft tissue contusions of the face sustained while diving for cover during a mortar attack in Vietnam. Clinical findings included residual edema of the left infraorbital and conjunctival regions. The final impression was of contusions of the face and neck, without fracture. No actual disorder or injury of the left eye was diagnosed at that time. On service separation examination in May 1969, the Veteran's vision was 20/20 bilaterally, and no current diseases, injuries, or abnormalities of the left eye were noted. Based on these findings, the Board must conclude that while the Veteran sustained some type of injury of face around the left eye during service, such an injury was acute and transitory in nature, as he did not seek further treatment and was without a disability of the left eye on examination for service separation in May 1969. Moreover, the Veteran was without a chronic left eye disability immediately following service, according to the post-service evidence of record. Following service, he was afforded a VA examination in December 1970. He reported striking his face on the left side after falling into a hole during service, with blurry vision for approximately two weeks thereafter; however, he denied any current problems of the left eye. On clinical evaluation, both eyes were within normal limits, and the impression was of a "probable normal" eye examination. Thereafter, the Veteran did not seek treatment for and was not diagnosed with a disability of the left eye for many years after service. This lengthy period without complaint or treatment is one piece of evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, the Board must conclude that a current disability of the left eye did not have its onset in service and has not been chronic or continuous since that time. The competent evidence of record also does not establish a nexus between any disease, injury, or other incident of service, and a current disability of the left eye. The Veteran was afforded a private examination of the left eye performed by L.D.B., O.D., in January 2014. Dr. B. noted the Veteran's history of a left eye injury in service. More recently, the Veteran reported onset of "flashing lights" in the left eye beginning approximately two months ago. On visual acuity testing, the Veteran had 20/30 distant and 20/40 near visual acuity. On objective physical examination, the left eye was without obvious defects. The left pupil was equal, round, and fully reactive to light. A posterior vitreous detachment, with several vitreous floaters, was observed inside the eye. A cortical cataract was also present, according to Dr. B.; however, no opinion was provided by Dr. B. regarding the etiology of these disabilities. Thus, while Dr. B. confirmed current disabilities of the left eye, he did not provide a nexus with any disease, injury, or other incident of service, or suggest any current left eye disability had its onset in service. The Veteran was also provided a VA examination in January 2016. The VA examiner, an optometrist, reviewed the claims file in conjunction with the examination. After examining the Veteran, the examiner diagnosed posterior vitreous detachment with vitreous floaters in both the left and right eyes. Bilateral age-related nuclear sclerotic cataracts were also diagnosed. On reviewing the Veteran's service treatment records, the examiner noted the August 1968 in-service injury to the Veteran. The examiner also noted that all other follow up records for this trauma were devoid of any further reference to his left eye, and the May 1969 service separation report of medical examination indicated normal eyes, normal ophthalmoscopic findings, normal pupils, and normal ocular motility. The Veteran's unaided distance vision was 20/20 in each eye at service separation. An eye examination in December 1970 also showed 20/20 unaided vision in each eye and no complaints of current eye problems. Post-service, the examiner noted a Jan 2011 statement from the Veteran indicated that he has had blurry vision out of his left eye since the trauma in 1968 and he has shooting pains on numerous occasions. In November 2013 he complained to a VA nurse that he was having flashes and floaters in his left eye with peripheral vision problems for 2 to 3 weeks. The Veteran was examined by a private optometrist in January 2014 and diagnosed with a posterior vitreous detachment with floaters in his left eye. No treatment other than observation was advised. Regarding the Veteran's current left eye disabilities, the examiner noted that while the Veteran has had posterior vitreous detachment in both eyes, there were no signs of retinal tears or breaks. Thus, the examiner opined that since the posterior vitreous detachment in the left eye occurred when the Veteran was 66 years old it was less likely as not that this chronic eye disorder was incurred in or caused by the eye trauma in service. According to the examiner, posterior vitreous detachment occurred when the vitreous shrinks and pulls away from the retina during the aging process. It is a common eye disorder for people over the age of 50. Those who have vitreous detachment in one eye are likely to develop vitreous detachment in the other eye even though it may occur later, according to the examiner. In the present case, posterior vitreous detachment was noted in both eyes. The Veteran had early age related nuclear sclerotic cataracts in both eyes, but this was unrelated to his eye trauma while in service, according to the examiner. Thus, because the competent evidence of record suggests against a nexus between the current posterior vitreous detachment and cataracts of the left eye and any disease, injury, or other incident of service, service connection must be denied. Additionally, while the Veteran is, based on his Vietnam service, presumed to have been exposed to herbicides, he has not been diagnosed with a disability for which service connection is presumed, and no competent evidence has been presented of a possible nexus between herbicide exposure and any current left eye disability. The Veteran has himself asserted that his left eye disability is the result of an incident of service. The Board finds that the Veteran is competent to report such observable symptoms as a blurry vision, but is not competent to provide a nexus with an in-service disease or injury, as this question is of the type that the courts have found to be beyond the competence of lay witnesses. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The diagnosis and etiology of a neurological disability is based on medical evaluation and clinical testing by a competent expert, as any such disability is established by objective clinical findings. Some medical issues require specialized knowledge and training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology, and a veteran's statements therein cannot be accepted as competent medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Likewise, the Veteran's lay contentions have not later been substantiated by a competent expert. Finally, the Veteran has not stated he is reporting competent evidence of a nexus as told to him by medical experts. Therefore, in consideration of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and service connection for a left eye disability is not warranted. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a chronic left eye disability is denied. REMAND TDIU The Veteran seeks a TDIU. This issue was previously remanded by the Board in October 2015 to allow the AOJ to development and adjudicate pending service connection claims for skin cancer and a right knee disability, as well as pending increased rating claims for service-connected left knee and bilateral hearing loss disorders. The Board noted in its October 2015 remand order that the pending TDIU claim was inextricably intertwined with those other claims, and could not be adjudicated while those claims remained undecided. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Review of the record to date does not indicate those tasks have been accomplished. Remand is therefore required to ensure full compliance with the Board's October 2015 remand order. See Stegall v. West, 11 Vet. App. 268 (1998). Next, to qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. In the present case, the Veteran has been granted service connection for several disabilities. These include: posttraumatic stress disorder (PTSD), with a 70 percent disability rating; a sprained left knee with weakness of the collateral ligaments, with a 10 percent rating; degenerative joint disease of the left knee, with a 10 percent rating; tinnitus, with a 10 percent rating, and; a scar of the left hand, bilateral tinea pedis, and bilateral hearing loss, each with noncompensable ratings. His combined rating is 80 percent. Based on these ratings, the Veteran meets the schedular criteria for a TDIU. He is also not currently employed, according to the record. The Board finds this evidence sufficient to trigger VA's obligation to afford the claimant a VA medical examination or opinion. 38 U.S.C. § 5103A(d); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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. Schedule the Veteran for a vocational evaluation by a VA vocational rehabilitation counselor or similar specialist, if possible, to assist in determining the current functional effect of the service-connected disabilities on the Veteran's ability to obtain or maintain substantially gainful employment. The entire claims file, to include records in VBMS and Virtual VA, should be made available to the examiner. The VA examiner should offer an opinion as to whether it is as likely as not (50 percent probability or greater) that the Veteran is unable to secure or maintain substantially gainful employment solely as a result of the combined functional effect of the service-connected disabilities. The VA examiner should comment on the functional effect of the Veteran's service-connected disabilities on the ability to work (disregarding the effects of any disabilities that are not service connected), indicating what functions or types of employment would be inconsistent with or would be precluded by the service-connected disabilities, and what types of employment, if any, would remain feasible despite the service-connected disabilities. The examiner is reminded the Veteran has been awarded service connection for PTSD, with a 70 percent rating; degenerative joint disease of the left knee, a sprain of the left knee, and tinnitus, each with a 10 percent rating, and; a scar of the left hand, bilateral tinea pedis, and bilateral hearing loss, each rated as noncompensable. His combined rating is 80 percent. The VA examiner should set forth a rationale underlying any conclusions drawn or opinions expressed. 2. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. 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 (2014). ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs