Citation Nr: 1804285	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO.  14-39 380	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Entitlement to service connection for bilateral loss of vision.

2. Entitlement to service connection for an inguinal hernia.

3. Entitlement to service connection for obstructive sleep apnea.

4. Entitlement to service connection for a lumbar disability.

5. Entitlement to service connection for a cervical spine disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Matthew Miller, Associate Counsel


INTRODUCTION

The Veteran had active duty service from July 1953 to January 1975, with several years of foreign service, including in Vietnam. 

This matter previously came before the Board of Veterans' Appeals (Board) on an appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.
 
The Board observes that during the course of the Veteran's appeal, he requested a videoconference hearing and several issues were withdrawn at a later date.

In June 2016, the RO advised the Veteran that he had been placed on the list of individuals to be scheduled for a videoconference hearing before the Board, and asked the Veteran to clarify whether he wished to remain on that list. The Veteran responded by indicating on the form that he wished to withdraw his request. Thus, the Board deems the request for a hearing withdrawn. 38 C.F.R. § 20.704(e) (2017).

In May 2017, the Board denied the Veteran's claim of entitlement to special monthly compensation (SMC) for the Veteran's spouse based on a need for aid and attendance and remanded the remaining issues now listed on the title page for evidentiary development. 

The Board is cognizant that the Veteran is presently in receipt of a 100 percent disability rating, effective November 2, 2016, as well as special monthly compensation. Nevertheless, the Veteran may be entitled to additional benefits and the appeal as to the remaining issues has since returned to the Board for further consideration.
This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. 

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 issues of entitlement to service connection for an inguinal hernia, obstructive sleep apnea, a lumbar disability, and a cervical spine disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

A disability claimed as bilateral loss of vision has not been shown to have had its onset in service, or to otherwise be the result of a disease or injury in active military service.


CONCLUSION OF LAW

The criteria for establishing service connection for bilateral loss of vision have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012) sets forth VA's duties to notify and assist a claimant with the evidentiary development of a claim for compensation or other benefits. See also 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2017). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. The Veteran has been provided satisfactory and timely VCAA notice in advance of the rating decision on appeal.

VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order as to this issue. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal as to this issue.

Pursuant to the Board's May 2017 remand, the AOJ attempted to obtain any outstanding records from the Social Security Administration (SSA). Several attempts were made, and in May 2017 it was determined that these records did not exist and further attempts were futile. Later that same month, the Veteran was notified of this determination and he did not respond to a request to provide additional records. 

The Board acknowledges that this appeal was returned to the Board without the issuance of a supplemental statement of the case. Normally, 38 C.F.R. § 19.31 (2017) provides that after the AOJ develops the record, a supplemental statement of the case should be issued. However, in the present appeal, no additional SSA records were added, and the directives of the Board's May 2017 remand are interpreted to reflect that a supplemental statement of the case is not required in this instance. See 38 C.F.R. § 19.31(c)(2). Based on the above, the Board finds that there has been substantial compliance with the Board's prior remand. Stegall v. West, 11 Vet. App. 268 (1998).

Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Legal Principles

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).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Analysis

The Veteran seeks entitlement to service connection for bilateral loss of vision.

The Veteran's service treatment records reveal that he was seen for conjunctivitis of the left eye in April 1970. A November 1974 evaluation report noted no further eye trouble.

The Board notes that the Veteran's VA medical records show that he has been treated for complaints such as eye redness since approximately June 2000.

The Veteran was afforded a VA examination for his claimed bilateral loss of vision in April 2013. The Veteran complained of blurry vision and problems while driving. The examiner reported diagnoses of pseudoaphakia and blepharitis. The VA examiner determined that the Veteran's claimed bilateral loss of vision is less likely than not related to his service. The VA examiner provided the following rationale:

Opinion based on evaluation of claim folder, including service treatment records, VA treatment records and in-person examination of the Veteran. The Veteran's only eye condition mentioned on service treatment records is conjunctivitis of the left eye, as per service treatment records evaluation dated April 27, 1970. No other mention or complaint on service treatment records to suggest chronicity. Report of medical history dated November 20, 1974 stated no eye trouble. The Veteran's loss of vision is due to refractive error, with excellent best corrected visual acuity in both eyes (20/25+). The Veteran's eye condition claimed as loss of vision is not related to complaints in military service. The Veteran's left eye conjunctivitis was an acute and transient condition, resolved with no residuals.

There were no further remarks. 

A review of the record shows that entitlement to service connection for bilateral loss of vision is not warranted. 

As noted above, the Veteran was treated in service for an eye problem and has been diagnosed with pseudoaphakia and blepharitis. However, a nexus to service has not been established and there is no evidence of chronicity of symptomatology since discharge from service.

The Board places substantial probative value on the April 2013 VA examination and opinion of record. The VA examiner provided diagnoses of pseudoaphakia and blepharitis, but did not provide a positive nexus opinion. The VA examiner found that the Veteran's complaints of blurry vision are due to refractive error and unrelated to his claimed eye problems experienced in service. Further, the VA examiner stated that the Veteran's left eye conjunctivitis that he experienced in April 1970 "was an acute and transient condition, resolved with no residuals." 

The Veteran is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, as a layperson not shown to possess any pertinent medical training or expertise, the Veteran is not competent to render an opinion on the etiology of any current eye disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide a medical diagnosis). Thus, the Veteran's opinion that he currently has eye problems, claimed as bilateral loss of vision, is not a competent medical opinion and it cannot be assigned any probative weight. Rather, the medical findings and opinion of a trained medical professional warrants greater probative weight than the Veteran's lay contentions. The Board reiterates that no medical professional, VA or otherwise, has rendered an opinion linking his claimed blurry vision to active service. 

Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection bilateral blurry vision and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application.


ORDER

Entitlement to service connection for bilateral loss of vision is denied.


REMAND

Review of the record reveals that a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Specifically, remand is required to receive any outstanding treatment records and to provide new VA examinations. 

The Veteran seeks entitlement to service connection for an inguinal hernia, obstructive sleep apnea, a lumbar disability, and a cervical spine disability. 

The Veteran's most recent and pertinent VA examinations for his claimed inguinal hernia and obstructive sleep apnea took place in April 2013. Notably, the VA examinations were silent as to diagnoses of an inguinal hernia and obstructive sleep apnea. Negative etiological opinions were also provided. 

The Board observes that additional medical treatment records have since been added to the record. A medical treatment record from May 2013 reveals that the Veteran was diagnosed with a large right inguinal hernia. The Veteran also underwent a sleep study in May 2013, wherein he was diagnosed with obstructive sleep apnea. 

In light of the above diagnoses, the Board finds the April 2013 VA examinations to be inadequate. Given this and the substantial period of time that has elapsed since then, new VA examinations for an inguinal hernia and obstructive sleep apnea are warranted. 

It does not appear that the Veteran has ever received VA examinations for his claimed lumbar disability and cervical spine disability. Medical records suggest that the Veteran may have received some treatment for his claimed disabilities and it is unclear to the Board if he currently suffers from a lumbar disability and/or cervical spine disability. Therefore, the Board finds that VA's duty to assist has been triggered and it must provide VA examination for these claimed disabilities as well. See McClendon v. Nicholson, 20 Vet. App. 79 (2006).
  
The Board observes that the Veteran has received some prior VA treatment for his claimed disabilities, but no additional treatment records have been added since early 2016. Therefore, VA should obtain all relevant and outstanding treatment records. Bell v. Derwinski, 2 Vet. App. 611 (1992).

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. With the assistance of the Veteran as necessary, identify and obtain any outstanding, relevant treatment records, and associate them with the Veteran's electronic claims file. If the AOJ cannot locate or obtain such records, it must specifically document the attempts that were made to locate or obtain them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. All attempts to obtain records should be documented in the Veteran's Virtual VA and VBMS claims file.

2. Then, after pertinent records are obtained, but whether or not records are obtained, schedule the Veteran for a VA examination(s) with a VA examiner(s) of appropriate expertise to determine the nature and etiology of his claimed inguinal hernia, obstructive sleep apnea, lumbar disability, and cervical spine disability. The examiner(s) is/are to be provided access to Virtual VA and VBMS and must specify in the report that these records have been reviewed.

The examiner(s) should then opine whether the Veteran's claimed inguinal hernia, obstructive sleep apnea, lumbar disability, and cervical spine disability are at least as likely as not (50 percent or greater probability) to have begun in or are otherwise the result of military service.

The examiner(s) should specifically address the Veteran's contentions and his lay statements regarding onset of symptomatology and any continuity of symptomatology since discharge from service or since onset of symptomatology. The examiner should also address and reconcile any previous examination reports, as well as any other pertinent evidence of record, as necessary. 

The examiner(s) must provide a complete rationale for any opinions expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner(s) should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 

3. After the development requested has been completed, the AOJ should review any examination reports and opinions to ensure that they are in complete compliance with the directives of this REMAND. The AOJ must ensure that the examiner(s) documented consideration of the entire claims file and any relevant records in Virtual VA and VBMS. If a report is deficient in any manner, the AOJ must implement corrective procedures at once.
 
4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case and allowed to respond thereto.

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).

______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs