Citation Nr: 18153787 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 14-40 275A DATE: November 28, 2018 ORDER Entitlement to service connection for gouty arthritis is denied. Entitlement to service connection for a visual disability, including refractive error is denied. Entitlement to service connection for chronic kidney disease is denied. Entitlement to an initial increased rating in excess of 50 percent for post-traumatic stress disorder, effective May 23, 2011, is denied. REMANDED Entitlement to service connection to hypertension, as secondary to post-traumatic stress disorder, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that gouty arthritis began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that chronic kidney disease began during active service, or is otherwise related to an in-service injury, event, or disease. 3. The Veteran did not incur vision loss (other than due to a refractive error) during activity duty service and any current vision loss (other than refractive error) is not otherwise related to an in-service injury, event, or disease. 4. The Veteran’s post-traumatic stress disorder does not present an occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, or mood. CONCLUSIONS OF LAW 1. The criteria for service connection for gouty arthritis are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for chronic kidney disease are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for a visual disability, including refractive error, are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 4.9. 4. The criteria for an initial increased rating in excess of 50 percent for post-traumatic stress disorder, effective May 23, 2011, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1964 to August 1968, including service in the Republic of Vietnam. The Veteran appeals a January 2013 rating decision from the Department of Veteran Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran did not select whether he wanted a Board hearing in his November 2014 VA Form 9. In March 2018 correspondence, the Veteran requested a Board hearing. However, in October 2018 correspondence, the Veteran withdrew his request for a Board hearing. Service Connection The Veteran asserts that his gouty arthritis, chronic kidney disease, and visual disability are related to his time in service, nearly 50 years ago. Service connection is warranted where the evidence of record establishes that a particular injury or disease results in a present disability that incurred in the line of duty during active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Entitlement to service connection for gouty arthritis Entitlement to service connection for chronic kidney disease The Board acknowledges that the Veteran was not provided a VA examination for the above conditions. A VA examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Here, we find that a VA examination is not warranted. The evidence of record does not indicate that the Veteran’s chronic kidney disease and gouty arthritis may be associated with the Veteran’s time in service nearly 50 years ago. The Veteran’s service treatment records reflect dental treatments, and a refractive error. The evidence of record does not reflect treatment, or a diagnosis, for chronic kidney disease until 2010, and gouty arthritis until the early 2000s, nearly five decades from separation. Neither does the Veteran claim that the conditions are secondary to a service connected disability, or a result of a continued symptomatology. In this case, unlike the issues above, the only evidence of record relating the Veteran’s conditions to service is the Veteran’s own general conclusory statements, which does not meet the low threshold of an indication that the claimed disability is due to service. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Therefore, the Board finds that a remand to obtain a VA examination for these claims is not necessary. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, determining the etiology of chronic kidney disease, and gouty arthritis, fall outside the realm of common knowledge of a lay person because it involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, while Veteran can competently report the onset of symptoms, any opinion regarding the nature and etiology of his condition requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board cannot assign any probative weight to the Veteran’s assertions that his stated conditions are in any way related to his military service. See Waters v. Shinseki, 601 F.3d at 1278-79. The Board finds that the service and post-service medical evidence provides highly probative evidence against this claim that it cannot ignore, indicating problems that began decades after service with no connection to service more than 50 years ago.   Consequently, the Board finds that the weight of the evidence is against a finding of service connection for chronic kidney disease, and gouty arthritis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49, 54-56. Entitlement to service connection for a visual disability, including refractive error VA regulations provide that refractive error does not constitute a “disease” or injury” for in the meaning of applicable legislation for VA compensation purposes. See 38 C.F.R. § 3.303(c), 4.9; Terry v. Principi, 340 F.3d 1378 (Fed.Cir.2003). Therefore, service connection may not be allowed for refractive error of the eyes. See VAOPGCPREC 82-90 (July 18, 1990). However, service connection may be granted for superimposed disease or injury. Here, service treatment records show that the Veteran suffered from refractive error that was noted in a June 1966 service treatment record. However, there is no evidence that the Veteran sustained any injury to the eyes or contracted any eye disease during his period of active service. Current VA outpatient treatment records show a diagnosis of refractive error. As “refractive error” is not a disability for VA compensation purposes and there is no evidence of any superimposed disease or injury of the eye that was incurred in or caused by military service, entitlement to service connection for vision loss must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Increased Rating The Veteran contends that he is warranted to an initial increased rating in excess of 50 percent for his post-traumatic stress disorder (PTSD). Disability evaluations are determined by comparing the Veteran’s present symptomatology with the criteria set forth in the VA’s Schedule for Ratings Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial increased rating in excess of 50 percent for Post-Traumatic Stress Disorder Mental disabilities are rated under 38 C.F.R. § 4.130’s general rating formula for mental disorders (including PTSD). A 50 percent rating requires occupational and social impairment with reduced liability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g. retention of only highly-learned material, forgetting to complete tasks); impaired judgement; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Next, a 70 percent rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. The Board notes that the Veteran did not appear at his January 2016 VA examination. Under 38 C.F.R. § 3.655(a), when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. The Veteran has not submitted a reason for failing to appear at the VA examination. As such, good cause is not found. However, the Veteran’s initial increased rating claim is in conjunction with an original compensation claim. If the VA exam was in conjunction with an original compensation claim, the claim will be decided based on the evidence of record. See 38 C.F.R. § 3.644(b). We note, the Veteran is free to not report to a scheduled VA examination, but exercising such a right does not mean there will be no consequences. Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). The Veteran underwent a VA examination in January 2013. The January 2013 VA examiner opined that the Veteran’s PTSD imposed an occupational and social impairment with reduced reliability and productivity. The Veteran noted that he lived alone, and is in a long-term relationship that was going “pretty good.” The Veteran stated that he had a few friends that he met with at least once a week. Additionally, the Veteran reported that he occasionally takes walks, and enjoys playing golf. The Veteran retired in March 2010 because of medical issues. The Veteran reported that he has trouble managing angry outbursts, sleeping problems, and concentration problems. The January 2013 VA examiner opined that the Veteran had a depressed mood, anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. The Veteran did not report suicidal and homicidal thoughts. The Board finds the examination probative because it is based on the Veteran’s claims file, and its rationale is consistent with the evidence of record. An April 2013 VA treatment note reported that the Veteran golfs several times a week, had good functional capacity, and rides his bike five miles once a week. A July 2013 VA treatment note reported that the Veteran continued to work part time when he is able, and that he has a friendship that has lasted six years. The Veteran underwent another VA examination in November 2013. The November 2013 VA examiner opined that the Veteran’s PTSD imposed an occupational and social impairment with reduced reliability and productivity. The Veteran noted that he lived alone, and is in a long-term relationship that was going “pretty good.” The Veteran stated that he had a few friends that he met with at least once a week. Further, the Veteran reported that he enjoys playing golf, and occasionally goes for walks. The Veteran stated that he does get into verbal confrontations “quite often,” approximately three times a week. The Veteran also stated that he has sleep problems, and poor concentration. The November 2013 VA examiner opined that the Veteran had a depressed mood, anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. The Veteran did not report suicidal and homicidal thoughts. The Board finds the examination probative because it is based on the Veteran’s claims file, and its rationale is consistent with the evidence of record. In January 2014, the Veteran underwent a private psychological examination. The January 2014 private examiner noted that the Veteran lives on his own, and performs the majority of his living tasks. For example, the Veteran makes his own meals, and does grocery shopping. He manages his own household finances. He does have a few friends, and is in a long-term relationship. The January 2014 private examiner reported the Veteran has homicidal thoughts, and auditory and visual hallucinations. The private examiner opined that the Veteran had a depressed mood, anxiety, suspiciousness, panic attacks, near-continuous panic or depression affecting ability to function independently, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, inability to establish and maintain effective relationships, grossly inappropriate behavior, and intermittent inability to perform activities of daily living. Therefore, the private examiner opined that the Veteran’s PTSD imposed an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Board does not find the private examination probative (or of limited probative weight) because its rationale is not consistent with the evidence of record prior to, and after the January 2014 private exam. The evidence of record is absent of homicidal thoughts, auditory and visual hallucinations, or panic attacks. The Veteran’s overall statements, over many years, do not totally support the findings of this examiner. For example: A September 2014 VA psychological treatment note reported that he is in an exclusive relationship. The Veteran stated that he prided himself in not depending on other people. The VA psychologist opined that the Veteran’s appearance was appropriately groomed and attired, and his behavior was appropriate. The VA psychologist reported that the Veteran did not have delusional or paranoid content or abnormalities. An October 2015 VA treatment note reported that the Veteran lived with his sister, but independently completes activities of daily living. A November 2015 VA treatment note reported that the Veteran had flat affect, had a tense relationship with his niece, and the Veteran denied suicidal or homicidal ideation. In a March 2017 VA treatment note, the Veteran stated he is in a long-term relationship. Further, the Veteran reported that he had no significant changes in mood or symptoms. The VA treatment note reported that the Veteran has having problems with his memory. However, the Veteran stated that he looked forward to the Spring weather because he hopes to start golfing. The VA treatment note reported that the Veteran did not have suicidal or homicidal thoughts, nor expressed feelings of hopelessness or helplessness. Based on above, the Board finds an initial increased rating in excess of 50 percent for the Veteran’s PTSD is not warranted. The Veteran denied the having suicidal or homicidal thoughts. The Veteran has a few friends that he meets with at least once a week, and remains in a long-term relationship. As such, the Veteran’s PTSD does not prevent the Veteran from establishing and maintaining effective relationships. Although the Veteran lives with his sister, the Veteran is still able to independently take care of the basic activities of daily living. The Veteran, based on the evidence of record, appeared appropriately groomed and attired. Further, the Veteran is still able to partake in activities such as golf. The evidence of record is absent of auditory and visual hallucinations, panic attacks, or obsessional rituals. Consequently, an initial increased rating in excess of 50 percent is not warranted. Additionally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been raised by the record with regards to those claims. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the evidence of record). Finally, the Board’s findings do not, in any way, suggests the Veteran does not have problems with his PTSD. It is important for the Veteran to understand that a disability rating at any level will cause the Veteran problems. A 50% disability will cause the Veteran many problems. The only question is the degree of the problems based on the criteria above. Overall, the Veteran’s statements regarding the impact PTSD has on his day to day life strongly suggests that the 50% evaluation is warranted, but not more. REASONS FOR REMAND Entitlement to service connection to hypertension, as secondary to post-traumatic stress disorder The Veteran asserts that his hypertension is caused or aggravated by the Veteran’s PTSD. A VA examination is necessary to determine whether the Veteran’s hypertension is caused by or aggravated by the Veteran’s PTSD. The Board notes a VA physician wrote in a February 2013 letter that the Veteran has a long history with PTSD and hypertension. Further, the VA physician reported that the Veteran’s hypertension has been difficult to control because it was likely that PTSD makes his blood pressure more difficult to treat. The matter is REMANDED for the following action: 1. Obtain and associate with the record all VA and private treatment records for the Veteran. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. If possible, the Veteran and his representative are asked to submit these records themselves. Provide the Veteran with the appropriate forms to obtain any private treatment records, or submit them. 2. Then, schedule an examination with the appropriate clinician. Following a review of the claims file, the examiner is asked to furnish an opinion with respect to the following questions, whether the Veteran’s hypertension is at least as likely as not (50% probability): a) proximately due to the result of the Veteran’s service connected PTSD; or b) aggravated (increased in severity) beyond its natural progress by the Veteran’s service connected PTSD. In answering the questions, the clinician must consider: a) A February 2013 letter, from a VA physician, that the Veteran has a long history with PTSD and hypertension. The VA physician reported that the Veteran’s hypertension has been difficult to control because it was likely that PTSD makes his blood pressure more difficult to treat. 3. Then, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Timothy A. Campbell, Associate Counsel