Citation Nr: 19119376 Decision Date: 03/18/19 Archive Date: 03/18/19 DOCKET NO. 18-35 650 DATE: March 18, 2019 ORDER Entitlement to service connection for type II diabetes mellitus is denied. Entitlement to service connection for coronary artery disease (claimed as high cholesterol) is denied. Entitlement to service connection for residuals, bladder cancer is denied. Entitlement to service connection for right lower extremity atherosclerotic peripheral vascular disease is denied. Entitlement to service connection for left lower extremity atherosclerotic peripheral vascular disease is denied. Entitlement to service connection for myopic (age related) bilateral macular degeneration with cataracts and right lower eyelid entropion status post surgical procedures (claimed as low vision and right eye thin retina) is denied. FINDINGS OF FACT 1. The Veteran’s type II diabetes mellitus disability was not manifest in service, was not manifest within one year of separation and is not related to service. 2. The Veteran’s coronary artery disease disability was not manifest in service, was not manifest within one year of separation and is not related to service. 3. The Veteran’s residuals, bladder cancer disability was not manifest in service, was not manifest within one year of separation and is not related to service. 4. The Veteran’s right lower extremity atherosclerotic peripheral vascular disease disability was not manifest in service, was not manifest within one year of separation and is not related to service. 5. The Veteran’s left lower extremity atherosclerotic peripheral vascular disease disability was not manifest in service, was not manifest within one year of separation and is not related to service. 6. The Veteran’s right eye vision disability is not related to an in-service injury, disease, or event and the weight of the evidence is against a finding that the Veteran’s myopia was subjected to a superimposed disease or injury in service that created additional disability or that a right eye disability was incurred in service. CONCLUSIONS OF LAW 1. Type II diabetes mellitus was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. Coronary artery disease was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. Residuals, bladder cancer, were not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. Right lower extremity atherosclerotic peripheral vascular disease was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 5. Left lower extremity atherosclerotic peripheral vascular disease was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 6. A right eye vision disability was not incurred in active military service. 38 U.S.C. §§ 1101, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1962 to April 1963 with additional service in the Air Force Reserves. These matters are before the Board of Veterans’ Appeals (the Board) on appeal of a March 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include diabetes mellitus, coronary artery disease, bladder cancer and peripheral vascular disease may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as diabetes mellitus, coronary artery disease, bladder cancer and peripheral vascular disease is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). The term “Veteran” is defined in 38 U.S.C. § 101(2) (West 2002) as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” The term “active military, naval, or air service” includes active duty, and “any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty.” 38 U.S.C. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2012); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Active duty for training (ACDUTRA) is defined, in part, as “full-time duty under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law.” 38 U.S.C. § 101(22) (West 2002); 38 C.F.R. § 3.6(c) (2017). The term inactive duty training (INACDUTRA) is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law. 38 U.S.C. § 101(23) (West 2002); 38 C.F.R. § 3.6(d) (2017). Thus, with respect to the Veteran’s Reserves service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1110, 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). Certain evidentiary presumptions-such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service, are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. §§ 101, 1112, (West 2002); 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309 (2017). However, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant’s claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-7, for the proposition that, “if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim.”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Diabetes, Coronary Artery Disease, Bladder Cancer, Peripheral Vascular Disease The Veteran’s service treatment records are negative for treatments, complaints or diagnoses related to diabetes mellitus, coronary artery disease, bladder cancer or peripheral vascular disease. A September 1965 periodic examination for the Veteran’s Reserve service was negative for treatments, complaints or diagnoses related to diabetes mellitus, coronary artery disease or bladder cancer. The examination did note a 1 year history of claudication. An October 2013 private treatment record noted that the Veteran had bladder cancer which was first diagnosed in March 2007. A January 2016 private treatment note indicated that the Veteran had a history of bladder cancer. A December 2016 private treatment report noted that the Veteran had a history of diabetes, coronary artery disease and peripheral vascular disease which were originally diagnosed “years ago”. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for diabetes mellitus, coronary artery disease, bladder cancer and peripheral vascular disease is not warranted. As there are current diabetes mellitus, coronary artery disease, bladder cancer and peripheral vascular disease disabilities, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). As noted above, service connection may be granted on a presumptive basis for certain chronic diseases, including diabetes mellitus, coronary artery disease, bladder cancer and peripheral vascular disease, if such disease is shown to be manifest to a degree of 10 percent or more within one year following the Veteran’s separation from active military service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this instance however, service connection on a presumptive basis is not warranted as the record does not show evidence of diabetes mellitus, coronary artery disease, bladder cancer or peripheral vascular disease within one year of the Veteran’s separation from active duty. As noted above, a September 1965 periodic examination for the Veteran’s Reserve service conducted more than 2 years after his separation from active duty service was negative for treatments, complaints or diagnoses related to diabetes mellitus, coronary artery disease or bladder cancer while also noting a 1 year history of claudication. Additionally, consideration of presumptive service connection for chronic disease is not permissible for periods of ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474 (1991). Rather, the evidence must demonstrate disease or injury must have been incurred during a period of ACDUTRA or the injury incurred during a period of INACDUTRA to support award of service. Here, the Veteran has not asserted that he experienced continuing symptoms of diabetes mellitus, coronary artery disease, bladder cancer or peripheral vascular disease since service. For this reason, and because there was a significant period between his service and his post-service complaints where the medical record was silent for complaints of diabetes mellitus, coronary artery disease, bladder cancer or peripheral vascular disease, the Board concludes that the weight of the evidence is against a finding of any continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Regarding service connection on a direct basis, the Board again notes that the Veteran’s service treatment records are negative for complaints or treatments of diabetes mellitus, coronary artery disease, bladder cancer or peripheral vascular disease. Further, there is no competent evidence or opinion even suggesting that there exists a medical nexus between current diabetes mellitus, coronary artery disease, bladder cancer or peripheral vascular disease and the Veteran’s service and he has not presented or identified any such existing medical evidence or opinion. The Board finds that the competent evidence of record, while showing the currently diagnosed diabetes mellitus, coronary artery disease, bladder cancer and peripheral vascular disease disabilities, does not demonstrate that the Veteran’s diabetes mellitus, coronary artery disease, bladder cancer or peripheral vascular disease are related to the Veteran’s service. In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection for diabetes mellitus, coronary artery disease, bladder cancer and peripheral vascular disease. The benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107(b). 2. Right Eye Vision The Veteran’s service treatment records demonstrate that the April 1962 enlistment examination noted myopia, defective visual acuity which was corrected with lenses and color blindness. The service treatment records however are negative for complaints, treatments or diagnoses related to a superimposed disease or injury in service. A December 2004 private treatment note reported that the Veteran had a history of macular degeneration and cataract formation. An August 2009 private treatment report noted that the Veteran had a history of myopic degeneration which resulted in decreased vision. A September 2015 private treatment report indicated that the Veteran had a history of pseudophakia, lower lid entropia and age related macular degeneration. A January 2016 private treatment report noted that the Veteran had undergone an entropion right lower lid with tarsal strip and that he now had a resolved entropion which “looked good”. The treatment notes reported a history of cataract removal in September 2010. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a right eye vision loss disability is not warranted. As detailed above, the Veteran has a history of pseudophakia, lower lid entropia and age related macular degeneration. Accordingly, as there is a current right vision loss disability, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Notably, the Veteran’s service treatment records demonstrate that his enlistment examination noted myopia and color blindness. However, the VA’s Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 4, Section B provides guidance on evaluating conditions of the organs of special sense (i.e., the eyes). Refractive errors are defined to include astigmatism, myopia, hyperopia, and presbyopia. See M21-1MR, Part III, Subpart iv, 4.B.10.d. In particular, myopia is a refractive error also called nearsightedness. Dorland’s Illustrated Medical Dictionary 1094 (28th ed. 1994). Generally, refractive errors are not diseases for VA compensation purposes. 38 C.F.R. § 3.303 (c); see also 38 C.F.R. § 4.9; see also, e.g., Winn v. Brown, 8 Vet. App. 510, 516 (1996). In the absence of a superimposed disease or injury, service connection may not be granted for refractive errors of the eyes, even if visual acuity decreased in service, as these are not diseases or injuries within the meaning of applicable legislation relating to service connection. Id. Thus, VA regulations specifically prohibit service connection for a refractive error of the eye unless such a defect was subjected to a superimposed disease or injury that created additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (July 18, 1990). As noted above, myopia and presbyopia are refractive errors and service connection can only be granted for these disorders if they were subjected to a superimposed disease or injury in service that created additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). However, the Board finds the objective evidence of record does not indicate that any potential refractive error was aggravated during service by a superimposed disease or injury. Although the Veteran had myopia noted in service, there is no competent medical evidence showing that his myopia was subjected to a superimposed disease or injury in service that created additional disability. Again, the service treatment records are negative for complaints, treatments or diagnoses related to a superimposed disease or injury in service. Additionally, the Veteran has not contended and the record does not otherwise show any injury that occurred to the Veteran’s eyes while on active duty. Therefore, the weight of the evidence does not demonstrate any “superimposed” injury that could aggravate the right eye vision disability. Further, there is no competent evidence or opinion even suggesting that there exists a medical nexus between a current right eye vision loss disability and the Veteran’s service and the Veteran has not presented or identified any such existing medical evidence or opinion. The Board finds that the competent evidence of record, while showing the currently diagnosed right eye disability, does not demonstrate that the Veteran’s right eye disability is related to the Veteran’s service. In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a right eye vision loss disability. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). The Board also notes that the Veteran was not provided with VA examinations and opinions to assess the current nature and etiology of his claimed diabetes mellitus, coronary artery disease, bladder cancer, peripheral vascular disease and right eye vision disabilities. However, VA need not conduct an examination with respect to the claims on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claims. See 38 C.F.R. § 3.159(c) (4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case as there is no credible evidence that the diabetes mellitus, coronary artery disease, bladder cancer, peripheral vascular disease and right eye vision disabilities manifested in service and there is also no competent evidence suggesting that these disabilities were otherwise associated to service. Thus, remand for VA examinations is not necessary. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs