Citation Nr: 18155925 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-08 511 DATE: December 6, 2018 ORDER Entitlement to service connection for cataracts, to include as due to exposure of toxic herbicides is denied. Entitlement to service connection for bronchiectasis is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to a rating in excess of 30 percent for service connected tension headaches is denied. FINDINGS OF FACT 1. The Veteran’s bilateral cataracts, did not manifest during service and is unrelated to service to include exposure to toxic herbicides during service in Vietnam. 2. The Veteran has not been diagnosed with bronchiectasis at any time pertinent to the claim for service connection. 3. The Veteran’s hearing loss has been manifested by hearing impairment no worse than auditory level II in the right ear, and level III in the left ear. 4. During the appeal period, the Veteran’s tension headaches most closely resemble migraine headaches with characteristic prostrating attacks occurring on an average three times a week, very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability have not been shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for cataracts, to include as due to toxic herbicide exposure have not been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for bronchiectasis have not been met. 38 U.S.C. §§ 1110, 1116, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, 4.86a, Diagnostic Code (DC) 6100. 4. The criteria for entitlement to a rating in excess of 30 percent for service connected tension headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from June 1965 to July 1988. During the Veteran’s appeal, the RO increased the Veteran’s rating for tension headaches to 30 percent disabling. Since the RO did not assign the maximum disability rating possible, the appeal for a higher disability rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection for cataracts, to include as due to exposure of toxic herbicides The Veteran is seeking service connection for cataracts which he asserts is due to his exposure to toxic herbicides during his service. The Veteran’s personnel records show that he served in Vietnam and it is presumed that he was exposed to Agent Orange under 38 U.S.C. § 1116. In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116 (a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In this regard, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f). The current list of diseases, subject to presumptive service connection, under 38 C.F.R. § 3.309 (e), does not include cataracts or any other eye disability. 38 C.F.R. § 3.309(e). Notwithstanding the provisions of 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e), relating to presumptive service connection due to exposure to Agent Orange, which arose out of the Veteran’s Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98- 542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of actual causation, that is, proof the exposure to Agent Orange actually causes an eye disability, which is not included in the list in 38 C.F.R. § 3.309(e). See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). Although, the Veteran indicated eye trouble in his April 1988 report of medical history, he only described wearing eyeglasses. Further, the Veteran’s service treatment records do not show that he was treated for or diagnosed with any eye problems while in service. In fact, on his April 1988 retirement examination, the Veteran’s eyes were evaluated as normal. The Veteran’s post service treatment records do not indicate symptoms of an eye disability until April 2002, when he complained of itching in his eye. Further, the Veteran did not seek treatment for his cataracts until his surgery in 2011, 23 years following his discharge from service. Therefore, continuity of symptoms has not been established. As part of this claim, the Board recognizes the statements from the Veteran regarding his history of an eye condition since service. In this regard, while the Veteran is not competent to make a diagnosis related to this disorder, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is “medical in nature,” he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, in this case, the Board finds that the service connection cannot be granted based on the Veteran’s statements alone. Specifically, the Veteran has submitted claims for service connection on a number of occasions prior to submitting the claim on appeal, but never mentioned an eye disorder. It may be presumed that, if the Veteran had eye symptoms since service, he would have claimed entitlement to service connection for this issue then. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran’s cataracts to active duty, despite his contentions to the contrary. The Veteran underwent cataract surgery for his right eye due to blurred vision in August 2011. During a November 2013 examination, no visual abnormalities were noted. However, in August 2014, the Veteran sought a consultation for cataract as his left eye began bothering him. While the evidence of record shows that the Veteran has a current diagnosis of cataracts, there is no other competent and probative medical or lay evidence that links the current pathology of his cataracts, first noted in 2011, to any aspect of his military service. Due consideration has been given to the Veteran’s lay assertion that his current eye disabilities are related to his active service, to include herbicide exposure. However, while 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 issue in this case, eye disorders, including cataracts, fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Cataracts are not the types of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that testing and other specific findings is needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, weighing the evidence of record, the Board finds that the preponderance of the evidence is against the claim of service connection for an eye disability, to include cataracts as a result of exposure to toxic herbicides. There is no doubt to resolve. Accordingly, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). 2. Entitlement to service connection for bronchiectasis The Veteran claims service connection for bronchiectasis that he believes is related to service. In the present case, the claim for service connection for bronchiectasis fails because the Veteran does not have a current disability of bronchiectasis, and has not had a current diagnosis of bronchiectasis at any time pertinent to the claim. Service treatment records do not indicate that the Veteran had any bronchial problems or treatment. In fact, in his April 1988 report of medical history, the Veteran specifically denied having shortness of breath, chronic cough, and/or asthma. The Board acknowledges that a March 2002 private treatment record indicates that the Veteran was treated for bronchitis on one occasion. He was noted to have a cough at that time. He was prescribed doxycycline for treatment. The examiner noted that the Veteran denied shortness of breath and his chest was clear to auscultation bilaterally. The remaining VA and private treatment records are silent as to further complaints or treatment for bronchitis. Upon review of all of the medical evidence of record, the Board finds the evidence demonstrates that the March 2002 bronchitis was a single episode and not a chronic disorder. The Veteran has not indicated that there are any additional, outstanding records that would support a finding of a chronic respiratory diagnosis. Further, the Veteran’s statements do not indicate that he has ever been told that he has bronchiectasis. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA’s and the Court’s interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). To the extent that the Veteran contends that he has a current disability of bronchiectasis, the Board acknowledges that the Veteran is competent to report symptoms such as difficulty breathing as this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, as a lay person, the Veteran is not competent to offer a diagnosis of bronchiectasis as he does not possess the requisite specialized knowledge. In this regard, such diagnosis requires the administration and interpretation of specialized test results, to include diagnostic studies. Therefore, making such a diagnosis is a complex medical question and the Veteran is not competent to offer such a diagnosis. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). For entitlement to compensation, the evidence must show the existence of a current disability, and one that has resulted from a disease or injury that occurred in the line of duty. In the absence of an identified disease or injury, service connection may not be granted. See Sanchez-Benitez v. West, 25 F.3d 1356 (Fed. Cir. 2001). At this time, there is no competent evidence that the Veteran has bronchiectasis, nor that he had any such disorder at any time shortly before, or since, filing the claim for service connection for bronchiectasis. The Board acknowledges that the Veteran was not provided with a VA examination in connection with the claim but the Board finds that such was not required. In this regard, the competent and credible evidence of record does not indicate that the Veteran had recurrent respiratory symptoms since service. See McLendon, supra. Based on the foregoing, service connection is not warranted for bronchiectasis. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine; however, the preponderance of the evidence is against the claim. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 3. Entitlement to a compensable rating for bilateral hearing loss The Veteran’s presently service connected bilateral hearing loss is rated as non-compensable. He contends he is entitled to a compensable rating. The Veteran underwent a VA examination to address his hearing loss in June 2014. He reported that his wife complains about his hearing status. On audiological evaluation, his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 45 55 80 53.75 LEFT 40 50 70 70 57.5 Speech recognition scores were 88 percent in the right ear and 86 percent in the left ear. When utilizing table VI, the Veteran exhibits level II hearing impairment in the right ear and level III hearing impairment in the left ear. Applying these results to Table VII, a 0 percent rating is for application. Therefore, based on the evidence of record, a compensable rating is not warranted. In considering the appropriate disability ratings, the Board has also considered the Veteran’s statements that his hearing loss is worse than the rating he currently receives. Here, while the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s hearing loss has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination report) directly addresses the criteria under which this disability is evaluated. Based on the foregoing, the Board has determined that entitlement to a compensable rating for bilateral hearing loss is not warranted, and the appeal is denied. 4. Entitlement to a rating in excess of 30 percent for service connected tension headaches The Veteran asserts that he is entitled to an increased rating for his service connected tension headaches. The Veteran is currently assigned a 30 percent rating for tension headaches. The rating was assigned under 38 C.F.R. § 4.124a, DC 8100 (addressing migraine headaches). Under DC 8100, a 30 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. Migraine headaches manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent disability rating. 38 C.F.R. § 4.124a, DC 8100. The rating criteria do not define “prostrating,” nor has the United States Court of Appeals for Veterans Claims (Court). Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). However, the Board notes that, according to WEBSTER’S NEW COLLEGE DICTIONARY 909 (3d ed. 2008), “prostration” is defined as “complete exhaustion.” Similarly, DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st ed. 2007) defines “prostration” as “extreme exhaustion or powerlessness.” The term “productive of severe economic inadaptability” is not defined by VA regulations. The Court, however, has stated that this term is not synonymous with being completely unable to work and that the phrase “productive of” could be read to mean either “producing” or “capable of producing” economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004). Based on the evidence of record, the Board determines that a rating in excess of 30 percent is not warranted. In August 2014, the Veteran underwent a VA examination for migraine headaches. He reported headache pain that occurs to dorsum of scalp and moves to the side and back of his head. He further reported that his pain was an 8/10 and his migraines occur about three times a week, lasting over an hour in duration. For relief the Veteran takes Sumatriptan and rests until his headache subsides. The examiner noted the Veteran’s headaches led to symptoms of pulsating or throbbing head pain and sensitivity to light and sound. The examiner concluded that the Veteran has characteristic prostrating attacks of migraine head pain once a month. However, the examiner further noted that the Veteran does not have very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. Despite his migraine headaches averaging three times a week, the Veteran is still ineligible for a 50 percent disability rating, as prolonged attacks productive of severe economic inadaptability have not been shown. Particularly, the Board notes the usage of the word “prolonged.” As reported by the Veteran, his attacks typically last an hour. Even if his headaches were determined to be “prolonged,” he would still not be eligible as there is no evidence of severe economic inadaptability. While there is no question that he requires rest during these periods, there is no indication that the headaches alone would severely inhibit his ability to work. Therefore, the Board concludes that a rating in excess of 30 percent is not warranted. In considering the appropriate disability ratings, the Board has also considered the Veteran’s statements that his disability is worse than the rating he currently receives. In rendering a decision on appeal, 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Thus, taking into consideration the evidence of record, the Board finds that a disability rating in excess of 30 percent for tension headaches is denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Vample, Associate Counsel