Citation Nr: 1807379 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 12-20 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a left eye disability. 2. Entitlement to service connection for a blood disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1979 to July 1979, July 1991 to June 1992, May 1999 to July 1999, December 2001 to September 2002, January 2003 to June 2003, and July 2005 to October 2005. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board observes that records were received following the last adjudication by the RO in the October 2016 Supplemental Statement of the Case. The Board has reviewed these records and observes that they consist of (1) duplicative copies of VA records already considered by the RO and (2) records that do not pertain to the issues before the Board on appeal (for example, a November 2017 spine examination). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's left eye disability is related to his active duty service. 2. The preponderance of the evidence is against a finding that the Veteran has a blood disorder related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left eye disability have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317 (2017). 2. The criteria for entitlement to service connection for a blood disorder have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Board notes that in a January 2018 Informal Hearing Presentation, the Veteran's representative requested that the Board remand these matters for a VA examination and opinions on whether the Veteran's left eye disability and blood disorders are related to the Veteran's service on a direct basis. The Board considered the request but finds that further examination is unnecessary in this case. Upon review and as further noted below, the Board finds that the September 2016 and October 2016 VA examinations adequately address the issue of direct service connection. The examiners considered the pertinent evidence of record and clearly opined that the Veteran's disabilities are less likely than not related to any event in the Veteran's service. The decisions are based on a review of the Veteran's medical history, pertinent medical literature, and an examination of the Veteran with adequate supporting rationale. Therefore, the Board finds VA has fulfilled its duty to assist by associating all identified pertinent evidence with the Veteran's claims file and affording the Veteran adequate VA examinations of his left eye disability and blood disorders. Legal Criteria A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2017). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a). Furthermore, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 38 C.F.R. § 3.310(b). Certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. §§ 1101, 1112, 1137; C.F.R. §§ 3.303, 3.307, 3.309(a) (2017). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b) (2017). The chronicity provision of 38 C.F.R. § 3.303(b) applies when evidence, regardless of its date, establishes that a Veteran has a chronic condition in service and still has that condition. Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify. See Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may also be established for a chronic disability resulting from an undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. A 'qualifying chronic disability' means a chronic disability resulting from any of the following (or any combination of any of the following): an undiagnosed illness; a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and IBS) that is defined by a cluster of signs or symptoms; and any diagnosed illness that the Secretary determines. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1)(i). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans' Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Analysis The Board finds that the first Shedden element is met in regard to the Veteran's left eye disability and blood disorders. After extensive testing and study over time, the Veteran's doctors and VA examiners have diagnosed the Veteran with blood disorders, specifically hyperhomocysteinemia and hypercholesterolemia, which they have determined are genetic in origin. See, e.g., September 2016 VA blood disorder examination; April 2006 Letter from M.A.G. Moreover, VA examinations and medical testing determined that the Veteran's left eye was damaged by a clot in 2006, which was caused by the Veteran's current blood disability. See April 2006 Letter from M.A.G.; February 2006 Letter from M.A.G. The Board notes these diagnoses are undisputed on appeal by the Veteran and his representative, and there is no competent and credible evidence of record contradicting these diagnoses. Accordingly, the Board finds that the Veteran has a current left eye disability, which is secondary to a current blood disability. However, the Board finds that the preponderance of the evidence is against a finding that there is a nexus between the Veteran's service and his current left eye and blood disabilities. In this case, the Veteran's left eye disabilities and blood disorders have clear etiologies, and they are not on the list of diseases for which a presumption of service connection may apply. See 38 C.F.R. § 3.309. Therefore, the Board must have competent and credible evidence of a nexus between an in-service event and the Veteran's current disabilities to grant his claims for entitlement to service connection. The Board obtained VA examinations of the Veteran's left eye disability and related blood disorders in September 2016 and October 2016. They specifically addressed the possibility that the Veteran's blood disorder may have been caused by in-service events to include an anthrax vaccine and any other event. The September 2016 VA blood disorder examiner opined that the Veteran's blood disorders are at least as likely as not secondary to genetic defects and less likely than not secondary to the anthrax vaccine or any other exposure. The examiner noted there is robust literature documenting genetic defects as the main cause for the Veteran's blood disorders. The examiner noted there is no evidence that the anthrax vaccine or exposures raises cholesterol or homocysteine levels. The examiner noted that the Veteran's own treating physician documented that the conditions were genetic. Similarly, the October 2016 VA eye examiner opined that the Veteran's eye conditions were less likely than not related to a specific in-service exposure event. While the examiner noted some medical literature showed anthrax vaccines were associated with ischemic events, the examiner noted that such events occurred within 2-24 days following inoculation with no mention of long term effects. In this case, the examiner noted that the Veteran received his last vaccine two years before his event. The VA eye examiner noted that based on the Veteran's clear history of a significant pre-existing risk factor, the Veteran's family history of serious cardiovascular disease, and the lack of evidence of long term coagulopathies associated with vaccines, it is less likely than not that the Veteran's branch artery occlusion of the left eye is related to a specific exposure event experienced by the Veteran. The Board affords probative weight to the examiners' opinions as they are supported by adequate rationale with references to the pertinent evidence, examination findings, and medical literature of records. In reaching these conclusions, the examiners specifically considered the general internet articles that the Veteran submitted in support of his claim that anthrax vaccinations caused his current disabilities. Moreover, there is no competent and credible evidence contradicting these opinions. While the VA examiners discounted the possibility that the Veteran's disabilities were caused by events in service including an anthrax vaccine, the Veteran maintained on his July 2012 substantive appeal form that the conditions nevertheless manifested in-service. However, the Veteran did not specify the basis for this conclusion other that indicating he did not have symptoms prior to service. The Board further notes that the Veteran originally stated on his September 2008 application for compensation that his disabilities did not begin until in February 2006, several months after his active duty service. The Veteran's service treatment records do not contain diagnoses of the left eye disability or blood disorders, and several records dated shortly thereafter are negative for relevant symptoms. See, e.g., December 2005 Chronological Record of Medical Care in the Veteran's service treatment records. The Veteran indicated on his July 2012 substantive appeal form that he was diagnosed within 365 days following service, which is also confirmed by his treatment records. See, e.g. February 2006 letter from M.A.G. Moreover, these diagnoses are not considered chronic under the regulation, and are not subject to presumptive service connection. 38 C.F.R. § 3.307(a), 3.309(a). In light of the above, the Board finds that the preponderance of the evidence shows that the Veteran's left eye and blood disabilities manifested after his active duty service and are not related by causation or aggravation to any event in-service. Moreover, there is no evidence or contention that they are related to a service-connected disability in this case. Accordingly, the Veteran's claims for entitlement to service connection for a left eye disability and a blood disorder must be denied. ORDER Entitlement to service connection for a left eye disability is denied. Entitlement to service connection for a blood disorder is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs