Citation Nr: 1803337	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  16-18 661	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1. Entitlement to service connection for a bilateral eye disorder, claimed as cataracts. 

2. Entitlement to service connection for bilateral hearing loss.

3. Entitlement to service connection for hypertension. 


REPRESENTATION

Veteran represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

L. Edwards Andersen, Counsel


INTRODUCTION

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) (West 2012).

The Veteran had active service from December 1955 to March 1977.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

The issue of entitlement to service connection for tinnitus has been raised by the record in an October 2012 statement.  The matter is REFERRED to the AOJ for any appropriate action.  

The issues of entitlement to service connection for bilateral hearing loss and hypertension are REMANDED to the AOJ.  VA will notify the Veteran if further action is required.


FINDING OF FACT

The evidence does not establish that the Veteran developed his current bilateral eye disorder during his period of active service, or that it is causally or etiologically related to service.


CONCLUSIONS OF LAW

Service connection for a bilateral eye disorder is not established. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). 

In the present case, the VCAA duty to notify was satisfied by a letter sent to the Veteran in February 2013, prior to the initial unfavorable decision in this case. The Board finds that the notification requirements of the VCAA have been satisfied as to timing and content.

As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by the Veteran, and for which he authorized VA to request, have been obtained. 38 U.S.C. § 5103A. VA has associated service treatment records, and post-service records with the claims folder. VBMS records were reviewed. Additionally, the Veteran was afforded a VA examination. 

The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103 (a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of the claim.





II. Entitlement to Service Connection for a Bilateral Eye Disorder, Claimed as Cataracts

The Veteran seeks entitlement to service connection for a bilateral eye disorder, claimed as cataracts.

Applicable Laws

Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). 

In general, 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).

In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic diseases" in 38 C.F.R. § 3.309 (a). Because the Veteran is not diagnosed with an eye disorder currently listed as a chronic disease under 38 C.F.R. § 3.309 (a), the theory of continuity of symptomatology is not for application in the Veteran's claim.

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value.

Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).

Facts & Analysis

After reviewing the record, the Board finds that a preponderance of the evidence is against the Veteran's claim of service connection for a bilateral eye disorder. 

Initially, the Board notes that the Veteran has a current diagnosis of pseudophakia. See December 2013 VA examination. As such, element (1) set forth under Shedden, current disability, has been satisfied. See Shedden, supra.

Although service treatment records contain no complaints, diagnoses, or treatment of pseudophakia or cataracts during service, the Board notes the Veteran was treated on multiple occasions for recurrent chalazions of the eyes. See September 1976 service treatment records. As such, Shedden element (2) has been satisfied. See Shedden, supra.

Unfortunately, the Board finds that element (3) under Shedden, nexus, has not been satisfied. A December 2013 VA examiner, after reviewing the claims file, opined that it is less likely than not that the Veteran's post-service pseudophakia/cataracts was incurred in or caused by service, to include the Veteran's recurrent chalazions during service. The examiner noted that the Veteran was treated multiple times during service for recurrent chalazions, and had cataract surgery in 2007. The examiner also stated that the Veteran was then seen multiple times in 2012 for floaters and had a cataract removed in 2012. The examiner explained that the Veteran's multiple chalazions during service resolved, and his cataracts were more likely due to age, not military service.

The Board finds this opinion to be highly probative. The opinion was based on a review of the record, consideration of the Veteran's own statements as to his symptoms and history, and the results of physical examination and diagnostic studies. There are no medical opinions to the contrary, of record.

The Board has considered the Veteran's own statements regarding the nature and etiology of his claimed bilateral eye disorder. The Board acknowledges that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss his pain and other symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board observes that lay 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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). 

In the present case, however, the Board finds that the Veteran's lay statements are outweighed by the post-service treatment records and the negative VA medical opinion cited above. Further, the Veteran is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current bilateral eye disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). The matter of whether his post-service eye disorder is etiologically related to in-service symptoms is a complex medical question requiring medical expertise to resolve. Accordingly, though the Veteran is competent to report his symptoms, he is not credible to provide an opinion as to the nature and etiology of those symptoms.

In summary, although the Board concedes that the Veteran experienced eye problems during service, the weight of the evidence reflects that the Veteran did not develop his current bilateral eye disorder until many years after service. Furthermore, a VA examiner has opined that the Veteran's current bilateral eye disorder is less likely than not due to service, to include his in-service symptoms and treatment of chalazions, and more likely due to age.

For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a bilateral eye disorder. See 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


ORDER

Entitlement to service connection for a bilateral eye disorder, claimed as cataracts, is denied.


REMAND

The Veteran seeks entitlement to service connection for bilateral hearing loss and hypertension. Unfortunately, a remand is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration.

Bilateral Hearing Loss

The Veteran was scheduled for a VA examination in December 2013, but was reported as not attending. The Veteran asserts that he did attend the appointment, but the examination was not completed because his ears were not clean. He asserts that once he had his ears cleaned he contacted the office, but was informed the examination results were already sent. See January 2014 notice of disagreement. The Board notes that a December 2013 treatment note indicates the Veteran's right ear auditory canal was impacted with cerumen. See December 2013 private treatment note.

On remand, the Veteran should be rescheduled for a VA examination for his bilateral hearing loss. A medical opinion must also be obtained regarding whether his current bilateral hearing loss is due to service.

Hypertension

During a March 1977 Report of Medical Examination for separation from service, the Veteran had a recorded blood pressure of 140/90. The Veteran has a post-service diagnosis of hypertension. See e.g. March 2012 private treatment record. To date, the Veteran has not yet been afforded a VA examination for his hypertension. On remand, the Veteran should be afforded a VA examination and a medical opinion must be obtained.

Accordingly, the case is REMANDED for the following action:

(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 claims file all updated treatment records.

2. Afford the Veteran a VA examination for his bilateral hearing loss. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. 

The examiner should identify and completely describe all current symptomatology. 

If the Veteran is diagnosed with a hearing loss disability, as defined by VA regulations, the examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hearing loss is causally or etiologically due to service, or had an onset within one year of discharge from service in March 1977.

In providing this opinion, the examiner must acknowledge and discuss any lay evidence of a continuity of symptomatology. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved. If the examiner cannot provide any of the requested opinions without resort to speculation, that conclusion also should be explained.

3. Afford the Veteran a VA examination for his hypertension. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed.

a) The examiner should offer comments and an opinion addressing whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's hypertension had its onset during service or is causally or etiologically related to his active service, to include the documented blood pressure reading of 140/90 during his separation examination in March 1977.

b) The examiner should further consider whether the Veteran developed hypertension within one year of his separation from active military service in March 1977. In this regard, the examiner should opine as to whether it is at least as likely as not that the Veteran had hypertension within one year after March 1977, his date of separation from service.

All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

The examiner must acknowledge and discuss any lay evidence of a continuity of symptomatology. If the examiner cannot provide any of the requested opinions without resort to speculation, that conclusion also should be explained.

4. After all of the above actions have been completed and the Veteran has been given adequate time to respond, readjudicate his claims. 

5. If the claims remain denied, issue to the Veteran and his representative a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. 

6. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case.

The Veteran 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 (West 2012).



_________________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs