Citation Nr: 1815656 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-14 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a heart disability. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for an eye injury. 4. Entitlement to service connection for a foot disability. 5. Entitlement to an initial rating in excess of 30 percent for posttraumtic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel INTRODUCTION The Veteran had active military service in the U.S. Army from August 1981 to May 1995. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In November 2017, a Travel Board hearing was held before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran's claims file. At the hearing, the Veteran submitted additional evidence with a waiver of initial Agency of Original Jurisdiction (AOJ) review. 38 C.F.R. § 20.1304 (2017). The issues of entitlement to service connection for hypertension, an eye injury, a foot disability, and an increased rating for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran does not have a current heart disability. CONCLUSION OF LAW The criteria for service connection for a heart disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303 , 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, required notice was provided and the Veteran has not alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, VA's duty to notify has been satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). All pertinent and relevant records have been obtained, to the extent available. In this regard, the Board acknowledges that the below remand includes instructions to obtain outstanding VA treatment records. This development is being requested as a result of the Veteran's November 2017 Board hearing testimony in which he indicated that he had received treatment for his hypertension, eye injury, foot disability, and PTSD at the VA medical center (VAMC) in Durham. With respect to the Veteran's heart claim, however, as he has not indicated that he received treatment for that claimed condition at the VAMC in Durham, the Board may proceed with the adjudication of such claim as it is not anticipated that any records obtained as a result of the below remand will impact the instant claim. Also, although the Veteran was not afforded a VA examination for his claim of service connection for a heart disability, the Board finds that one is not necessary. As set forth in more detail below, the evidence does not establish a current diagnosis of a heart disability. Under these circumstances, an examination or opinion is not necessary with respect to this claim. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing the four elements to consider in determining whether a VA medical examination must be provided). Further, the Board acknowledges the fact that the Veteran's service treatment records are missing; however, the Board does not need to go into a further discussion of VA's heightened duty to assist with regard to missing service treatment records because, as explained in more detail below, the Veteran does not have a current disability, which is an essential element to a claim for direct service connection. To do so would not serve any purpose. Finally, neither the Veteran nor his representative has raised any other issues with the duty to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to the duty to assist argument). For these reasons, the Board concludes that VA has fulfilled its duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Legal Criteria, Factual Background, and Analysis As an initial matter, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issue on appeal. 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, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). 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) (2017). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including heart disease or valvular heart disease, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (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. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2017). A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)." Walker, 708 F.3d at 1337. Service connection may nonetheless be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Veteran is seeking service connection for a heart disability. The Veteran contends that he did not know that he had an enlarged heart until he went to the VA. See August 2013 Notice of Disagreement. Despite the Veteran's claim of having an enlarged heart, such is not shown by the record. For example, a May 2008 VA treatment record shows that the Veteran did not have a history of heart disease and did not have any chest pain. In April 2013, it was noted that the Veteran's past medical history included a diagnosis of hypertension, but the record was silent for any diagnosis of a heart condition. In February 2014, a physical examination revealed that the Veteran did not have a heart murmur. Crucially, a diagnosis of a current heart disability has not been shown. Additionally, during the Veteran's hearing before the Board in November 2017, he denied having a current diagnosis of a heart condition, to include ischemic heart, coronary artery disease, or any other type of heart condition. This casts doubt on the veracity of the Veteran's earlier statement he had an enlarged heart. Further, the Board acknowledges that the Veteran is competent to describe his observable symptoms without any specialized knowledge or training. Layno v. Brown, 6 Vet. App. 465 (1994). 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board affords more weight to the medical evidence of record that is silent for any signs, symptoms, or diagnosis of a heart condition than the Veteran's own contentions. Accordingly, the Veteran does not exhibit a current heart disability. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, the Veteran's claim of entitlement to service connection for a heart disability is not warranted. ORDER Service connection for a heart disability is denied. REMAND The Veteran is seeking service connection for a foot disability, an eye injury, and hypertension. The Veteran contends that these claimed conditions had their onset in service. Specifically, during the November 2017 Board hearing, the Veteran asserted that he was given a diagnosis of hypertension and started taking medication for that disability while he was in service; however, he did not seek treatment again after service for his hypertension until 2007 or 2008. Also, the Veteran asserted that he injured his eyes while playing basketball in service. He stated that a soldier was trying to guard him during the basketball game and slashed him across both eyes with his fingernail. Additionally, the Veteran asserted that running in boots during service aggravated his feet. He indicated that he continued to have problems with his feet after service. See November 2017 Hearing Transcript. Postservice treatment records show that the Veteran has been diagnosed with hypertension. An August 2014 VA podiatry note reveals that the Veteran has been diagnosed with plantar fibromata, plantar fasciitis, and paresthesias in his feet. Postservice treatment records also show that the Veteran has blurred vision and wears glasses, and has been prescribed eye drops for his eyes. As the Veteran has not been afforded VA examinations for these claimed conditions, the Board finds that the evidence of record is sufficient to trigger VA's duty to assist in providing the Veteran with VA examinations to determine whether his hypertension, foot disability, and eye injury are etiologically related to his military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the Veteran's claim for an increased rating for PTSD, he was last afforded a VA examination for this disability in August 2013. During the November 2017 Board hearing, the Veteran asserted that his PTSD had worsened since that examination. Specifically, the Veteran reported that he became angry and withdrawn from people. The Veteran also admitted that he had issues with sleeping and had obsessional rituals, such as checking windows and doors. Given the above, on remand, the Veteran should be afforded a new VA examination to determine the nature and severity of his PTSD. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Additionally, during the November 2017 Board hearing, the Veteran stated that he was receiving treatment for his PTSD, hypertension, eye injury, and foot disability at the VA medical center (VAMC) in Durham. These VA treatment records have not been obtained. Therefore, on remand, the RO should also obtain the Veteran's treatment records from the VAMC in Durham. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and associate with the claims file. Specifically, the RO should obtain the Veteran's treatment records from the VAMC in Durham and associate with the claims file. 2. The RO should also follow-up with any requests for service treatment records to which a response has not been received. See December 2017 Email Correspondence. 3. After the above development has been completed, schedule the Veteran for appropriate VA examinations to determine the nature and likely etiology of his claimed hypertension, foot disability, and eye injury. The record and a copy of this remand must be made available and reviewed by the examiner in conjunction with the examination. The RO should notify the examiner that the Veteran's service treatment records are missing. All necessary tests should be completed. The VA examiner should address the following: (A) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is related to his active military service. The examiner must consider and discuss the Veteran's contention that he was diagnosed with hypertension and started taking medication while he was in service. See November 2017 Hearing Transcript. The examiner should note that the absence of in-service evidence of hypertension during service is not always fatal to a service connection claim and should consider the Veteran's reports and lay statements. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). (B) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's foot disability is related to his active military service. The examiner must consider and discuss the Veteran's contention that running in boots during service aggravated his feet, and that he had knots on his feet. See November 2017 Hearing Transcript. The examiner should note that the absence of in-service evidence of a foot disability during service is not always fatal to a service connection claim and should consider the Veteran's reports and lay statements. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). (C) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's eye injury is related to his active military service. The examiner must consider and discuss the Veteran's contention that he was hit in the eyes/had his eyes slashed while playing basketball during service. See November 2017 Hearing Transcript. The examiner should note that the absence of in-service evidence of an eye injury during service is not always fatal to a service connection claim and should consider the Veteran's reports and lay statements. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). In this regard, the examiner should also address whether the Veteran's eyes demonstrate any findings consistent with the in-service injuries described by the Veteran. The examiners should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 4. Once the above records development has been completed, schedule the Veteran for an appropriate VA examination to determine the nature and severity of his service-connected PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected PTSD. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the applicable criteria, 38 C.F.R. § 4.130, Diagnostic Code 9411. The examiner must explain the rationale for all opinions given. If he or she is unable to provide any opinion sought, it must be so noted for the record, and the reason therefore explained. 4. After the above development has been completed, review the file and ensure that all development sought in this remand is completed. Undertake any additional development indicated by the results of the development requested above, and re-adjudicate the claim. If any of the issues remain denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs