Citation Nr: 1804656 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 90-22 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an earlier effective date prior to June 27, 2006 for the Eligibility to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. chapter 35. 2. Entitlement to service connection for an eye/vision disorder. 3. Entitlement to service connection for a cervical spine disability, to include as secondary myositis of the lumbar spine. 4. Entitlement to service connection for degenerative joint disease, including osteoarthritis of the spine. ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel FINDINGS OF FACT 1. The Veteran became eligible for DEA benefits effective December 4, 2003. 2. The Veteran's current diagnosed eye/vision disorder is a refractive error with senile cataracts, and not related to any injury, event, or disease while on active duty service. CONCLUSIONS OF LAW 1. The criteria for an effective date of December 4, 2003, but no earlier, for DEA benefits under 38 U.S.C. chapter 35 have been met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. § 3.400 (2017). 2. An eye/vision disorder was not incurred in service. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 through April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2000 and August 2007 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a July 2012 decision, the Board reopened and remanded the issues of entitlement to service connection for an eye/vision disorder. That development having been completed to the extent possible, the matter is again before the Board for further appellate review. The issues of entitlement to service connection for a cervical spine disability, to include as secondary to myositis of the lumbar spine, and degenerative joint disease, including osteoarthritis of the spine, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). Additional evidence was submitted after the issuance of the February 2016 and March 2016 supplemental statements of the case (SSOC). Generally, an SSOC must be issued by the AOJ when new evidence is received. An exception to this general rule is when the additional evidence is either duplicative or not relevant to the issue on appeal. 38 C.F.R. § 20.1304(c). Here, the newly-obtained evidence is not relevant to the issues on appeal. Most of the records are duplicative of evidence previously submitted and do not provide any statements as to nexus for the issues on appeal. Accordingly, the Board may proceed with the adjudication of the pending claims as a SSOC is not required. The regulations pertinent to this decision (38 C.F.R. §§ 3.303, 3.400) were initially provided in the January 2002 and August 2007 SOCs and were most recently provided in the February 2016 and March 2016 SSOCs. Since he has had adequate notice of the pertinent laws, they will not be repeated here. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, he has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained service treatment records; assisted the appellant in obtaining evidence; afforded the Veteran physical examinations; obtained medical opinions as to the etiology and severity of disabilities; and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the claims file and he has not contended otherwise. Earlier Effective Date for DEA Benefits Except as provided in subsections (b) and (c), effective dates relating to awards under Chapter 35 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C.A. § 5113. Subsection (b) provides that when determining the effective date of an award under Chapter 35 for an individual described in paragraph (b)(2) of 38 U.S.C. § 5113, based on an original claim, VA may consider the individual's application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision. For these purposes, "eligibility date" means the date on which the individual became an eligible person as defined by 38 U.S.C. § 3501(a)(1), and "initial rating decision" means a decision by VA that establishes the veteran's total disability as permanent in nature. 38 U.S.C. § 5113(3). In the case of a veteran who is alive, the conditions for basic eligibility for DEA include: (1) the veteran's discharge from service under conditions other than dishonorable; and (2) the veteran has a permanent total service-connected disability. 38 C.F.R. § 3.807(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). Permanence of disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). The term "total disability permanent in nature" for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based on an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501(a)(7). In an August 2007 rating decision, the RO granted the Veteran a 100 percent rating for posttraumatic stress disorder (PTSD) effective December 4, 2003. The June 27, 2006, VA psychiatric evaluation showed that there were no significant changes from the findings recorded during the previous VA examination on December 4, 2003. As such, the evidence of record indicates he has been totally and permanently disabled since December 4, 2003. Thus, an effective date of December 4, 2003, but not earlier, for basic eligibility for DEA is warranted. Since the eligibility for DEA is predicated on a finding of permanent total disability in this case, the effective date of such eligibility cannot precede December 4, 2003. The law is dispositive of this issue. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service Connection for an Eye Disorder The Veteran contends that his bilateral eye disorder is etiologically related to active duty service. Specifically, during his July 2009 hearing before a Decision Review Officer (DRO), he testified that a mine exploded, causing him significant bilateral vision loss. 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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran bears the evidentiary burden to establish all elements of a claim. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). A September 1970 medical record noted the Veteran had a defect of refraction bilaterally and photophobia caused by large pupils. He was afforded a VA examination in June 1971 to evaluate his various disability claims. During physical examination, the examiner found no eye pathologies. Medical treatment records consistently diagnosed the Veteran's eye disorder as a refractive error. See medical treatment records dated February 1972, June 1983, March 2007, and June 2011. Similarly, diabetic eye examinations conducted in March 2007 and June 2011 were negative for any retinal changes related to diabetes. A March 2007 VA treatment record reflects that he was diagnosed with early cataracts. To the extent that the Veteran seeks service connection for refractive error (he has been diagnosed with hyperopia), service connection is precluded by VA regulation for congenital or developmental "defects" such as refractive error because they are not "diseases" or "injuries" within the meaning of applicable legislation. 83 C.F.R. § 3.303(c), 4.9; see Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). The Veteran was afforded a VA examination in November 2012. The examiner noted the September 1970 medical record reflecting a refractive error and photophobia related to large pupils, but further noted that both conditions were congenital. Additionally, the examiner found no evidence of any residuals of the Veteran's claimed eye-trauma. Physical examination revealed no corneal, conjunctival, anterior segment, lens, or posterior pole scarring. The examiner opined it was less likely than not that the Veteran's vision loss was secondary to his diabetes mellitus because physical examination showed no evidence of diabetic retinopathy. Further, she opined that his vision loss was the result of bilateral congenital refraction errors and early senile cataracts, an expected part of aging. The November 2012 VA examiner's opinion is of great probative value, because, after a thorough review of the record, the examiner found no evidence of residuals from ocular trauma, noted refraction errors were congenital, and concluded that the Veteran's cataracts were a natural part of aging. Despite the presence of refractive error and senile cataracts, there is no objective medical evidence of record indicating that the Veteran's refractive error or bilateral senile cataracts are the result of a superimposed disease or injury acquired in service. See VAOPGCPREC 82-90; see also November 2012 VA examination (finding no evidence of any residuals of claimed ocular trauma, and noting that the Veteran's cataracts are part of natural aging). As such, the evidence does not show that the Veteran's refractive error or senile cataracts were related to an in-service event or injury. Similarly, the evidence does not show that the Veteran's current vision/eye disorder is secondary to his service-connected diabetes mellitus. Eye examinations have consistently found no evidence of diabetic retinopathy. See VA treatment records dated March 2007 and June 2011; see also November 2012 VA examination. The Board further notes that a May 2008 medical record reflects the Veteran has loss of vision during hypertensive episodes. However, that note was made based on his self-reporting of symptoms, rather than a finding made during physical examination. Further, the overwhelming weight of the medical evidence, listed above, shows that his vision loss was due to refractive error and senile cataracts. As there is no competent evidence establishing a nexus between the Veteran's claimed disability and his military service, the appeal is denied. In reaching the merits of this case, the Board has carefully considered application of the reasonable doubt doctrine; however, as the evidence preponderates against the claim, there is no reasonable doubt to be resolved in the Veteran's favor. ORDER An effective date of December 4, 2003, but no earlier, for DEA benefits under 38 U.S.C. Chapter 35 is granted. Service connection for a vision/eye disorder is denied. REMAND The Veteran has claimed entitlement to service connection for degenerative joint disease, including osteoarthritis of the spine. It is unclear from the record whether he is claiming service connection for his cervical spine osteoarthritis, his thoracolumbar spine osteoarthritis, or both. He is service-connected for lumbar spine myositis, but not lumbar spine osteoarthritis. As he has claimed service connection for osteoarthritis of the spine, it is important to clarify all of his currently-diagnosed spine disabilities so a proper adjudication can be made. The July 2012 Board decision remanded the issues of entitlement to service connection for cervical spine myositis, to include as secondary to the Veteran's service-connected lumbar spine disability, and entitlement to service connection for osteoarthritis, including osteoarthritis of the spine. The August 2007 SSOC noted that the Veteran was notified that his lumbar degenerative joint disease was not etiologically related to his service-connected lumbar myositis. However, the April 2006 VA lumbar spine examination does not provide any medical rationale or nexus opinion as to whether his thoracolumbar spine osteoarthritis is etiologically related to active duty service, to include as secondary to his service-connected lumbar spine myositis. The Veteran was afforded a VA examination in November 2012. The examiner provided an opinion as to whether the Veteran's cervical spine disabilities were caused or aggravated by his service-connected lumbar spine myositis. However, there is no nexus opinion as to whether the Veteran's cervical spine osteoarthritis or thoracolumbar spine osteoarthritis are directly related to service. The examiner noted the Veteran's cervical spine osteoarthritis was the result of the natural aging process, but there is no indication the examiner reviewed the service treatment records. See November 2012 VA examination list of evidence reviewed. Service treatment records indicate that in 1969, the Veteran sustained a shrapnel wound to his neck. Treatment records dated September 1969 noted that he complained of neck pain related to his shrapnel wound sustained five months prior. X-rays taken in October 1969 showed no residual pieces of shrapnel but he reported his neck was still tender. Further, the examiner incorrectly lists the Veteran's dates of service as 1968 through 1973, indicating that his service records were not reviewed. Although the Veteran's service treatment records do not contain any complaints of thoracolumbar spine pain or injury, he has consistently reported that he injured his lumbar spine while performing jumps from helicopters. See April 2006 and November 2012 VA examinations. As there is no medical opinion as to whether the Veteran's osteoarthritis, including osteoarthritis of the spine, is directly related to active duty service, an addendum VA medical opinion should be obtained. As the matter of entitlement to service connection for a cervical spine disability, to include as secondary to the service-connected myositis of the lumbar spine, is inextricably intertwined with this service connection issue, it must also be remanded. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file all relevant VA treatment records from the San Juan VAMC and all associated outpatient clinics from July 2015 to the present. 2. Only after the above-listed records have been obtained, to the extent possible, obtain an addendum VA medical opinion. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. The examiner is requested to provide the following opinions: a) Whether it is at least as likely as not (a 50 percent probability or more) that any currently-diagnosed cervical spine disability is etiologically related to active duty service. The examiner should make particular note of his 1969 shrapnel wound and subsequent neck pain. b) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's thoracolumbar spine osteoarthritis is etiologically related to active duty service. All opinions are to be accompanied by a detailed rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. The AOJ should then readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran should be provided an SSOC. 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). 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.A. §§ 5109B, 7112 (2012). ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs