Citation Nr: 1802037 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-11 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for numbness in the hands. 2. Entitlement to service connection for a bilateral foot condition. 3. Entitlement to service connection for an eye disability. 4. Entitlement to service connection for chest pain, also claimed as a heart disability, to include atherosclerotic cardiovascular disease (ACD). 5. Entitlement to service connection for a back disability. 6. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Christopher L. Loiacono, Agent ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to September 1971. These matters came to the Board of Veterans' Appeals (Board) on appeal from a rating decision in March 2010, which denied service connection for a bilateral foot disability, a back disability, numbness in the hands, eye pain, chest pain, and a TDIU; and continued a disability rating of 50 percent for PTSD. The Veteran timely appealed the denials of service connection, TDIU, and assigned PTSD rating. In his June 2010 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at a local VA office. In January 2017, the Veteran was informed that his hearing was to take place on February 28, 2017. However, the Veteran failed to appear, and to this date he has not requested a new hearing. As such, his request for a hearing has been withdrawn. 38 C.F.R. §20.704(d) (2017). The issues of a rating in excess of 50 percent for PTSD and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have a current disability manifested by numbness in the hands that is related to service. 2. The Veteran does not have a current bilateral foot disability that is related to service. 3. The Veteran does not have a current eye disability that is related to service. 4. The Veteran does not have a current back disability that is related to service. 5. The Veteran served in the Republic of Vietnam from January 1970 to March 1971, and exposure to Agent Orange has been conceded. 6. The Veteran has been diagnosed with atherosclerotic vascular disease (AVD), also known as atherosclerotic cardiovascular disease (ACD), during the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for numbness in the hands are not met. 38 U.S.C. §§ 1110 (2012), 5107; 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for a bilateral foot disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for an eye disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The Veteran's ACD is presumed to have been incurred in his active military service. 38 U.S.C. §§ 1101, 1110, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist In the decision below, the Board has indicated the reasons why VA's duty to assist does not require an examination with regard to the claims being denied. Neither the Veteran nor his representative has raised any other issues with regard to the duty to notify or duty to assist, and no such issues have been raised by the evidence of record. 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"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Service Connection Service connection may be granted for disabilities resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay persons may provide evidence of diagnosis and nexus under 38 U.S.C. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Numbness in the Hand, Bilateral Foot Disability, Eye Pain In his December 2008 statement in support of his claim, the Veteran alleged that he experienced numbness in his hands, bilateral foot problems, and eye pain. Service treatment records (STRs) are silent as to any complaints, treatments, or diagnoses for numbness in the hands or problems in the feet. Specifically, a July 1969 enlistment report of medical examination and a June 1971 separation report of medical examination reflect normal evaluations of the upper and lower extremities. Likewise, STRs are silent for any eye pain or visual acuity problems. VA treatment records in May 2004 reflect no numbness, loss of sensation, tingling, or tremors in any extremities. Likewise, VA treatment records in March through September 2010 document no numbness, tingling, or weakness in any extremities. The evidence does not reflect any foot problems, complaints, or treatments. Further, a May 2014 Agent Orange Peripheral Neuropathy checklist reflects no identified peripheral neuropathy and no complaints, symptoms, or diagnoses that may be related to early-onset peripheral neuropathy. Private treatment records in July 2008 reflect that the Veteran's eyes were normal to inspection; his extraocular muscle function was intact; and his pupils were equal, round, and reactive to light. VA treatment records in June 2010 reflect the Veteran's complaints that his eyes were itchy for the past month. The Veteran reported itchy and puffy eyes, but the physician noted no recent changes in vision; and his pupils were equal, round, and reactive to light. A "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect." 38 U.S.C. § 1701(1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service connected disabilities"). The question of whether symptoms such as pain could constitute a disability for purposes of the VA compensation laws and regulations is one that the courts have not definitively answered. See Joyner v. McDonald, 766 F.3d 1393, 1396, n. 1 (Fed. Cir. 2014) (specifically declining to reach the question of whether pain alone can constitute a disability under 38 U.S.C. §§ 1110 and 1131); Sanchez-Benitez v. Principi, 259 F.3d 1356, 1362 (Fed. Cir. 2001) ("Mr. Sanchez-Benitez presents an interesting, indeed perplexing, question, but not one that we need or can decide in this appeal"). However, in Sanchez-Benitez, the Federal Circuit held that, in order for a veteran to qualify for entitlement to compensation under the pertinent statutes and regulations pertaining to direct service connection, a veteran must prove existence of disability that has resulted from a disease or injury that occurred in service. Id. at 1361-1362. Thus, a claim based on "pain alone" fails "when there is no sufficient factual showing that the pain derives from an in-service disease or injury." Id. In this case, while the Veteran has asserted numbness in the hands, bilateral foot problems, and eye pain, there is no evidence indicating diagnoses relating to these symptoms and the evidence indicates no complaints of numbness in the hands in May 2004, and from March through September 2010. Likewise, the evidence is silent as to any foot problems or eye problems. In addition, in his December 2008 statement, while the Veteran contended that he experienced numbness in the hands, problems in his feet, and eye pain, he stated that he had "no idea what [were] the causes, but that [he did] know it [was] not normal." He did not allege, and the evidence does not show, that his numbness of the hands, bilateral foot problems, or eye pain were due to service. The Board notes that the Veteran was not afforded VA examinations or medical opinions for his claims. VA is obliged to provide an examination or obtain a medical opinion in a claim when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of a current disability, the record indicates that the disability or persistent or recurrent symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. However, the duty to provide an examination is not limitless. Under the VCAA, VA must provide an examination when there is (A) competent evidence of a current disability (or persistent or recurrent symptoms thereof) that (B) may be associated with service, but (C) there is insufficient medical evidence to make a decision on the claim. 38 U.S.C.A. § 5103A(d). In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be competent evidence of a current disability, competent evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. The evidence in this case is akin to the conclusory generalized lay statement suggesting a nexus between a current disability and service that does not meet the standard of subsection (B). STRs and post-service medical records are devoid of evidence that the Veteran developed numbness in the hands, bilateral foot problems, or eye problems during service or as post-service disorders that may be associated with service. This is so even when considering the low nexus threshold for triggering VA's duty to provide an examination. The Veteran does not assert any in-service disease, injury, or event with which the current disabilities may be associated. In this particular case, an in-service disease, injury, or event is not shown, and the low threshold for purposes of triggering VA's duty to provide an examination is not met for the claimed disabilities. McLendon, 20 Vet. App. at 79; Locklear, 20 Vet. App. at 410; Waters, 601 F. 3d at 1278. The Court in Bardwell v. Shinseki, 24 Vet. App. 36, 39 (2010), held that, while there must be competent evidence of a current disability (or persistent or recurrent symptoms thereof) and an indication (not necessarily from competent evidence) that the current disability may be associated with service, the in-service event prong of the McLendon test "does not qualify the quality of evidence necessary to meet its threshold." Rather, the evidence must establish that there was a disease, injury, or event in service. Id. Here, for the reasons noted and discussed above, the evidence does not establish there was a disease, injury, or event in service with regard to the claims. For the foregoing reasons, the preponderance of the evidence is against the claims for entitlement to service connection for numbness in the hands, a bilateral foot disability, and an eye disability. The benefit of the doubt doctrine is therefore not for application in this regard. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Lumbar Spine Disability In his December 2008 statement in support of his claim, the Veteran alleged that he experienced fierce back pain and that his spine muscles had contracted and twisted. STRs are silent as to any complaints, treatments, or diagnoses for a back disability. Specifically, a July 1969 enlistment report of medical examination and a June 1971 separation report of medical examination reflect a normal evaluation of the musculoskeletal system. A February 2005 Social Security Administration (SSA) disability report indicates that the Veteran was shot in 1974, and that the bullet was lodged in his left hip and caused back and leg pain. A June 2009 SSA examination reflects that the Veteran had lower back pain for many years and that he was involved in a motor vehicle accident (MVA) in April 2009, which worsened his back pain. Physical examination revealed some tenderness to palpation over the lumbar spine and lumbar paraspinal muscles, but normal range of motion and sensory examination. VA treatment records in July 2006 reflect back pain for the past four years. Records in March 2010 document worsening lower back pain over the past three months, and x-rays showed degenerative changes in the lower back and dextroscoliosis (spinal curvature to the right). In private treatment records in July 2008, the Veteran reported pain for about two weeks, and was assessed with multilevel degenerative disc disease and facet arthropathy of the cervical spine. The Veteran stated that he was shot years ago and had bullet in his hip, and that he felt that "this [had] moved up into [his] neck." Based on review of the evidence of record, the Board finds that service connection for a back disability is not warranted. At the outset, the Board finds that the Veteran meets the criteria for a current disability as he has been diagnosed with degenerative changes of the lower back, dextroscoliosis, and multilevel degenerative disc disease and facet arthropathy of the cervical spine. However, there is no evidence of an in-service injury or event, and no evidence that the Veteran's current back disability is related to service. To the contrary, the evidence documents no complaints of back problems during service, and indicates that the Veteran's back problem is related to his 1974 gunshot wound, which occurred several years after he was discharged from service. Specifically, the February 2005 SSA report stated that the bullet in the Veteran's hip caused back and leg pain, and in July 2008 the Veteran stated that he felt that the bullet in his hip had "moved to his neck." The Veteran does not allege, and the evidence does not show, that the Veteran's current back disability is due to or related to service. Instead, in his December 2008 statement, the Veteran only stated that he was now experiencing back problems due to contracted muscles and muscle spasms. The Board acknowledges that the Veteran was not afforded a VA examination or medical opinion for his claim. As stated above, VA is obliged to provide an examination or obtain a medical opinion in a claim when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 79. In this instance, STRs and post-service medical records are devoid of evidence that the Veteran developed a back disability during service or as post-service disorders that may be associated with service. This is so even when considering the low nexus threshold for triggering VA's duty to provide an examination. The Veteran does not assert any in-service disease, injury, or event with which the current disabilities may be associated. In this particular case, an in-service disease, injury, or event is not shown, and the low threshold for purposes of triggering VA's duty to provide an examination is not met for the claimed disabilities. McLendon, 20 Vet. App. at 79; Locklear, 20 Vet. App. at 410; Waters, 601 F. 3d at 1278. For the foregoing reasons, the preponderance of the evidence is against the claims for entitlement to service connection a back disability. The benefit of the doubt doctrine is therefore not for application in this regard. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Chest Pain/Heart Condition In his December 2008 statement in support of his claim, the Veteran alleged that he experienced chest pain. STRs reflect a June 1969 enlistment report of medical examination documenting a history of heart murmur but a negative heart examination. A report of medical history indicated rheumatic fever when the Veteran was seven years old, a heart catheterization in 1965, and a heart murmur in 1969. Records also document a June 1968 cardiac catheterization result reflecting diagnosis of rheumatoid fever with persistent heart murmur. X-rays showed normal heart size, and an electrocardiogram was "prob. normal." A June 1971 separation report of medical examination reflects a normal heart evaluation. A July 1985 VA examination report reflects chest x-rays showing the heart and mediastinum within normal limits. There was no change when compared to prior chest x-rays, and no significant abnormality. VA treatment records in March 2009 reflect chest x-rays showing cardiomediastinal configuration within normal limits, mild tortuosity of thoracic aorta and atherosclerotic disease, mild chronic obstructive pulmonary disease (COPD) changes, and clear lungs without effusion or consolidation. The impression was no evidence of an acute cardiopulmonary process and COPD. Records in June 2009 document a history of heart catheterization in 1966 and a history of cardiac arrhythmias. X-rays in March 2010 reflect AVD, also known as ACD. See Mayo Clinic. A July 2011 VA examination report reflects no diagnosis of ischemic heart disease (IHD); no continuous medication; and no history of percutaneous coronary intervention, coronary bypass surgery, heart transplant, implanted cardiac pacemaker, and implanted automatic implantable cardioverter defibrillator. The Veteran did not experience congestive heart failure. A May 2011 echocardiogram indicated left ventricle ejection fraction (LVEF) of 60 percent. The examiner noted that the records did not document IHD, and that the only cardiac history the Veteran reported was rheumatic fever as a child and a heart catheterization in 1966 to plug a heart valve. The examiner found that the Veteran had no angina, dyspnea on exertion, orthopnea, shortness of breath, or syncope. A May 2011 stress myoview showed no evidence of IHD, and there was normal left ventricular function. Metabolic equivalents (METs) were 4.6, which the examiner found was most likely related to deconditioning, and he estimated that METs would be 10 or more. Based on the present findings, the VA examiner opined that he was unable to make a diagnosis of chronic IHD. Based on the evidence above, the Board finds that service connection for AVD/ACD is warranted. As an initial matter, the Board notes that the Veteran served in the Republic of Vietnam from January 1970 to March 1971. Service connection may be established on a presumptive basis for certain diseases, to include IHD, if a veteran was exposed to an herbicide agent, such as Agent Orange, during service. See 38 U.S.C. § 1116(a)(1); 38 C.F.R. §§ 3.307, 3.309(e). IHD is defined in 38 C.F.R. § 3.309(e) to include ACD. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, to include Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Board notes that the July 2011 VA examiner found that the Veteran did not have chronic IHD and only discussed the Veteran's rheumatic fever as a child and a heart catheterization in 1966 to plug a heart valve. The examiner failed to address the March 2010 x-rays documenting ACD. As such, the July 2011 VA examination is not adequate and holds little to no probative weight. Moreover, as explained above, IHD is defined as including ACD/AVD. Given that March 2010 x-rays show ACD during the pendency of the claim and the Veteran is presumed exposed to Agent Orange, service connection for ACD is warranted on a presumptive basis. See McClain, 21 Vet. App. at 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim). ORDER Entitlement to service connection for numbness in the hands is denied. Entitlement to service connection for a bilateral foot condition is denied. Entitlement to service connection for an eye disability is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for atherosclerotic heart disease (ACD) is granted. REMAND The Board finds that additional evidentiary development is necessary before a decision can be reached on the merits of his remaining claims. In April 2017, the Veteran's wife submitted a statement explaining that one moment the Veteran was self-confident, and the next he had "no respect and no love for anyone." She stated that he lost control regularly and had uncontrollable demands and desires for life. The Board notes that the Veteran's last VA psychiatric examination was in December 2009, and that his most recent VA treatment records are from April 2011. In addition, in his April 2011 records, the Veteran was hopeful and enjoying life, and continued to improve on his anger difficulties. As such, the Board finds that the Veteran's wife's statements reflect a worsening of the Veteran's PTSD. Where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Allday v. Brown, 7 Vet. App. 517, 526 (1995); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Thus, the Board finds that a remand is required to have an examiner supplement the record with a report regarding the current severity of the Veteran's PTSD. See 38 U.S.C. § 5103A. The Veteran also contends that he is unemployable due to his service-connected disabilities. The Board notes that adjudication of the claim for entitlement to increased ratings for PTSD may impact adjudication of the claim for entitlement to a TDIU. Consequently, these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, adjudication of the claim for entitlement to a TDIU must be remanded as well. Accordingly, the claims remaining on appeal are REMANDED for the following action: 1. Ask the Veteran to identify any VA or private treatment that he may have had for his psychiatric disability that is not already of record, to include any and all treatment since discharge from service. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file, and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Schedule the Veteran for a VA examination to obtain a detailed assessment of the current severity of the Veteran's PTSD. The claims file must be made available to and reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. The examiner must make all findings necessary to apply the rating criteria, paying particular attention to assessing the severity of the Veteran's symptoms and their effect on occupational and social functioning. A complete rationale must be provided for all opinions expressed. 3. After completing any additional development deemed necessary, readjudicate the claims remaining on appeal. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs