Citation Nr: 18158193 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-61 283 DATE: December 14, 2018 ORDER Service connection for a heart condition is denied. Service connection for a thoracic aortic aneurysm is denied. Service connection for an eye disorder is denied. REMANDED Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam. 2. The Veteran does not have a heart disorder, to include ischemic heart disease (IHD) or coronary artery disease (CAD). 3. The Veteran’s thoracic abdominal aortic aneurysm is not related to service or to his presumed in-service herbicide exposure. 4. The Veteran’s eye disorder, diagnosed as glaucoma, was not incurred in service and is not otherwise related to service. 5. The Veteran’s diagnosed presbyopia and astigmatism are types of refractive errors or congenital or developmental defects and are not diseases or injuries within the meaning of applicable legislation for disability compensation purposes, and there is no medical indication of additional disability due to superimposed disease or injury. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a heart disorder are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria to establish service connection for a thoracic aortic aneurysm are not met. 38 U.S.C. §§ 1110, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria to establish service connection for an eye disorder are not met. 38 U.S.C. §§ 1110, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to June 1967. These matters are before the Board of Veterans’ Appeals (Board) on appeal from the October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Laws and Regulations 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; 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 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. 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. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. 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”). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner’s opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Heart Disorder The Veteran is presumed to have been exposed to herbicides coincident with service in the Republic of Vietnam. As such, in order to establish service connection, he must only present a current diagnosis of IHD/CAD manifested to a compensable degree. However, the record during and after service fails to establish a diagnosis of IHD or CAD. After carefully considering the record on appeal, the Board finds that the evidence establishes that the Veteran does not currently have a heart disability. As noted herein, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The Board has carefully reviewed the record on appeal and can find no clinical indication that the Veteran currently has the claimed condition. Service treatment records are silent for any diagnoses pertaining to a heart disorder. In a May 1967 Report of Medical Examination, conducted at service separation, a clinical evaluation of the Veteran’s heart was normal and there was no indication of IHD or CAD. The Veteran was afforded a VA heart examination in September 2014. During the evaluation, the Veteran denied having a heart condition, to include IHD or CAD. The Veteran indicated that he was diagnosed by his primary care physician about 10-15 years ago with a CT scan; however, the Veteran did not indicate which diagnosis was rendered by his primary care physician. The VA examiner conducted an EKG and indicated that results were normal. Chest x-rays were also normal except for a mild tortuous aorta. The VA examiner then noted that the Veteran had been diagnosed with an aortic aneurysm. The examiner indicated that the Veteran’s aortic aneurysm was not diagnosed in service and was not aggravated in service. The evidence also includes a September 2015 Heart Condition Disability Benefits Questionnaire from Dr. Wang. At that time, the Veteran was diagnosed with a thoracic aortic aneurysm (TAA), with an onset date of June 2014. Dr. Wang indicated that the Veteran had a stable TAA that required clinical monitoring. It was specifically noted that the Veteran did not have IHD. Post-service treatment records fail to show a diagnosed heart disorder, to include IHD or CAD. The Board acknowledges that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a Veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran’s statements regarding his claimed heart disorder extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. In summary, the most probative evidence of record establishes that the Veteran does not currently have a heart disability. The law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a current disability. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Absent any probative evidence showing that the Veteran currently has a disability characterized by an irregular heartbeat, the Board finds that the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, service connection for a heart disorder is denied. Thoracic Aortic Aneurysm (TAA) The Veteran maintains that he suffers from an aortic aneurysm, which developed due to exposure to Agent Orange during his service in Vietnam. Service treatment records do not contain any complaints or findings related to an aortic aneurysm. In a May 1967 Report of Medical Examination, conducted at service separation, a clinical evaluation of the Veteran’s heart was normal and there was no indication of an TAA. The evidence also includes a September 2015 Heart Condition Disability Benefits Questionnaire from Dr. Wang. At that time, the Veteran was diagnosed with a TAA, with an onset date of June 2014. The Veteran was noted to have a left bundle branch block since 2007. Dr. Wang indicated that the Veteran had a stable TAA that required clinical monitoring. An opinion as to the etiology of the Veteran’s TAA was not provided. As discussed in the previous section, the Veteran was afforded a VA heart examination in September 2014. The VA examiner conducted an EKG and indicated that results were normal. Chest x-rays were also normal except for a mild tortuous aorta. The VA examiner then noted that the Veteran had been diagnosed with an aortic aneurysm. The examiner indicated that the Veteran’s AA was not diagnosed in service and was not aggravated in service. The remaining evidence of record, to include post-service treatment records, does not show that the Veteran’s TAA was incurred in service or is otherwise related to service, to include exposure to herbicide agents. The Board notes that a TAA is not a condition subject to presumptive service connection based on presumed in-service herbicide exposure; thus, service connection for that condition may not be presumptively awarded on this basis. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. The Veteran has offered his own opinion on etiology, stating that he currently has an AA that is causally related to his active service. The Board acknowledges that the Veteran is competent to describe his symptoms without any specialized knowledge or training. Layno, 6 Vet. App. 465. However, as a layperson, the Veteran is not competent to diagnose his symptoms as a specific disease, nor is he competent to render a nexus opinion regarding the etiology of any current disorder; both of these determinations require medical expertise. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Therefore, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. Service connection for a thoracic aortic aneurysm is not warranted. Eye Disorders The Veteran seeks service connection for an eye disorder; however, he has provided no details as to why he believes his eye disorders were incurred in service or are otherwise related to service. Service treatment records are negative for an eye disorder. In a May 1967 Report of Medical Examination, conducted at service separation, a clinical evaluation of the Veteran’s eyes was normal. Distant vision was 20/20. In his May 1967 Report of Medical History, completed by the Veteran at service separation, the Veteran specifically denied any eye trouble. In a July 2016 VA treatment record, it was noted that the Veteran was first diagnosed with glaucoma 10 years ago (i. e., approximately 2006, and more than 38 years following service separation). There was no indication that the Veteran’s glaucoma was related to service. The Veteran has also been diagnosed with presbyopia and an astigmatism, refractive errors. Refractive errors and presbyopia are not considered disabilities for VA purposes. Under 38 C.F.R. § 3.303 (c), congenital or developmental abnormalities, and refractive errors of the eye due to such eye disorders as myopia, presbyopia and astigmatism are not disabilities for VA purposes. See 38 C.F.R. §§ 3.303 (c), 4.9; McNeely v. Principi, 3 Vet. App. 357, 364 (1992). While service connection may be granted, in limited circumstances, for superimposed disability on a constitutional or developmental abnormality, there is no allegation or evidence that such occurred in this case. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); see also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). The Board acknowledges that the Veteran has not been afforded a VA examination regarding his claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, because the weight of the evidence demonstrates that the Veteran did not have symptoms of a bilateral eye disorder in service and did not sustain an eye injury or disease in service, or otherwise show in-service symptoms, or an in-service event involving his eyes, there is no duty to provide a VA medical examination. As discussed above, in this case, service treatment records are devoid of any complaints, symptoms, or diagnosis indicative of an eye disorder in service. See also Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). As such, a VA examination is not required. The Board has also considered the Veteran’s statements asserting a nexus between his eye disorders and service. As a lay person, however, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause f his eye disorders. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service). Eye disorders, such as glaucoma, are a complex disease process because of its multiple possible etiologies. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). Further, the etiology of the Veteran’s eye disorder are a medical etiological question involving internal and unseen system processes unobservable by the Veteran. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Therefore, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. Service connection for an eye disorder is not warranted. REASONS FOR REMAND PTSD The Veteran was last afforded a VA PTSD examination in October 2014, more than 4 years ago. At that time, the Veteran reported sleeping 3-4 hours per night. In a February 2015 VA treatment note, the Veteran reported that he was not sleeping well and reported only 2 hours of sleep per night. The Veteran was then prescribed Trazodone. The Veteran’s representative has requested that the Veteran be afforded a new VA examination to assess the current severity of his PTSD disability. The Board agrees. In light of this suggestion of a possible worsening of this disability, the Board finds that a new VA examination is warranted. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran’s contention that the pertinent disability had increased in severity). The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records since October 2016. 2. Thereafter, the Veteran should be scheduled for VA psychiatric examination in order to determine the current nature and severity of his service-connected PTSD disability. The claims folder must be made available to the examiner for review in connection with the examination. 3. Then, readjudicate the claim on appeal. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel