Citation Nr: 19190520 Decision Date: 12/02/19 Archive Date: 12/02/19 DOCKET NO. 10-35 162 DATE: December 2, 2019 ORDER An initial compensable rating for hepatitis C is denied. Service connection for a left eye cataract, as secondary to service-connected diabetes mellitus, is granted. Service connection for chronic fatigue syndrome (CFS), to include a disability manifested by dizziness and fatigue, is denied. Service connection for bradycardia, claimed as secondary to service-connected hepatitis C and diabetes mellitus, is denied. REMANDED The issue of service connection for a left eye disability, other than a left eye cataract, is remanded. FINDINGS OF FACT 1. Hepatitis C has not resulted in intermittent fatigue, malaise, and anorexia, or; incapacitating episodes having a total duration of at least one week. 2. The evidence is at least evenly balanced as to whether the left eye cataract is caused by the service-connected diabetes mellitus. 3. The preponderance of the evidence is against a finding that the Veteran has had CFS or a disability manifested by dizziness and fatigue at any time during or approximate to the pendency of the claim. 4. Bradycardia is not caused or aggravated by the service-connected hepatitis C or diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for hepatitis C are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.114, Diagnostic Code (DC) 7354. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for a left eye cataract, as secondary to service-connected diabetes mellitus, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for service connection for CFS, to include a disability manifested by dizziness and fatigue, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for bradycardia, as secondary to a service-connected disability, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to December 1969 and September 1973 to September 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2009 and May 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran’s September 2010 and May 2012 VA Form 9, the Veteran requested a Board hearing. In an October 2015 statement, the Veteran withdrew his request for a hearing. 38 C.F.R. § 20.704(e). In December 2017, the Board reopened the previously denied claim of service connection for a left eye burn and remanded it on the merits, along with the other issues on appeal for further development. For the reasons indicated below, the agency of original jurisdiction (AOJ) complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a May 2019 rating decision, the Decision Review Officer (DRO) granted service connection for hypertension, which was previously on appeal. As the Veteran has not appealed either the disability rating or the effective date assigned to the disability, this matter is not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The issue of service connection for a left eye disability has been bifurcated into two issues and recharacterized in light of Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is warranted for disability proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a), (b). 1. Service connection for a left eye cataract, as secondary to service-connected diabetes mellitus, is granted. For the reasons below, service connection for a left eye cataract, as secondary to service-connected diabetes mellitus, is warranted. During a February 2018 VA examination, a VA examiner diagnosed left eye cataract. Therefore, a current disability is established. In the February 2018 VA examination report, the VA examiner examined the Veteran, reviewed his claims filed, and opined that the Veteran’s left eye cataract is proximately due to his service-connected diabetes mellitus. The VA examiner reasoned that medical literature shows that cortical cataracts occur more often and earlier in patients with diabetes mellitus. The February 2018 VA opinion is entitled to significant probative weight, as the VA examiner explained the reason for his conclusion based on an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no opinion to the contrary. The evidence is evenly balanced as to whether the Veteran’s left eye cataract is caused by his diabetes mellitus. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for the left eye cataract as secondary to the service-connected diabetes mellitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for CFS, to include a disability manifested by dizziness and fatigue, is denied. The Veteran seeks service connection for CFS or a disability manifested by dizziness and fatigue. See Veteran’s claim dated December 2009. For the following reasons, service connection for CFS, to include a disability manifested by dizziness and fatigue, is not warranted. The Veteran reports experiencing dizziness and fatigue; however, CFS or a disability manifested by dizziness and fatigue has not been diagnosed at any time during the appeal period. In an April 2010 VA opinion, a VA physician’s assistant indicated that the Veteran’s symptom of fatigue “is too vague and has too many potential causes.” In a February 2018 VA examination report, the examiner indicated that he interviewed the Veteran, reviewed the claims files, and opined that the Veteran does not have a diagnosis of CFS or a disability manifested by dizziness or fatigue. Rather, the VA examiner attributed the Veteran’s complaints of dizziness and fatigue to his nonservice-connected bradycardia and hypoglycemia. Specifically, the VA examiner stated that the Veteran’s symptoms of dizziness and fatigue are due to bradycardia and hypoglycemia. The examiner cited to the Veteran’s complaints of dizziness and fatigue noted in his VA treatment records. In particular, the examiner cited to a January 2015 VA treatment visit report from a VA liver clinic, in which the Veteran reported that he was dizzy and that the report reflected that it was the result of transient hypoglycemia. Although, the April 2010 VA opinion is afforded less probative value, as the VA physician’s assistant opinion did not provide a thorough rationale, the February 2018 VA opinion is entitled to significant probative weight, because the VA examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record. See Nieves-Rodriguez, at 304. There is no opinion to the contrary. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Thus, a necessary element for establishing any claim for entitlement to service connection is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran filed his claim in this case in December 2009; however, there is no bright line rule prohibiting consideration of evidence dated prior to the claim, and the Board has considered such evidence. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). In sum, the Veteran has not had CFS or a disability manifested by dizziness and fatigue during the appeal period; rather, the Veteran’s symptoms have been attributed to his nonservice-connected bradycardia and hypoglycemia. Romanowsky, 26 Vet. App. 289 at 294; McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As the preponderance of the evidence is against the service connection claim for CFS, to include a disability manifested by dizziness and fatigue, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Service connection for bradycardia, as secondary to service-connected hepatitis C and diabetes mellitus, is denied. The Veteran claims that his heart condition, diagnosed as bradycardia, is due to his service-connected hepatitis C and diabetes mellitus. See, e.g., Veteran’s claim dated December 2009 The evidence includes a January 2010 VA electrocardiogram (EKG) that shows a diagnosis of sinus bradycardia. See VA treatment record dated January 2010. Therefore, the current disability element has been satisfied. In an April 2010 VA opinion, a VA physician’s assistant stated that the Veteran’s bradycardia was not due to hepatitis C. The physician’s assistant reasoned that there was no medical literature or link that shows a relationship between bradycardia and hepatitis C. In a March 2018 VA opinion, a VA physician interviewed the Veteran, reviewed the claims file, and opined that it was less likely than not that the Veteran’s bradycardia was caused or aggravated by his service-connected diabetes mellitus or hepatitis C. The examiner reasoned that the Veteran’s bradycardia was not caused or aggravated by hepatitis C, because the Veteran’s hepatitis C had been cured, as reflected in VA treatment records and a VA examination. The examiner also indicated that diabetes mellitus did not cause bradycardia. The examiner explained that bradycardia is due to myocardial conduction fiber abnormalities and that it leads to sick sinus syndrome. For the reasons below, service connection for bradycardia, on a secondary service connection basis, is not warranted. The April 2010 and March 2018 VA opinions indicated that the Veteran’s bradycardia was not caused or aggravated by his service-connected hepatitis C or diabetes mellitus. Although the April 2010 VA physician’s assistant did not provide a detailed rationale, the Board finds that the April 2010 and March 2018 VA opinions taken as a whole are sufficient, as they were based on a review of the Veteran’s claims file and they were consistent with the evidence of record. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The competent evidence of record demonstrates that there was no relationship between the Veteran’s bradycardia and his service-connected hepatitis C and diabetes mellitus. As a lay person, the Veteran is competent to testify to observable symptoms. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007). Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran, however, is not competent to opine as to the etiology of his current bradycardia, as it is a complex medical matter relating to the internal medical processes that extend beyond an immediately observable cause-and-effect relationship of the type that the courts have found to be beyond the competence of lay witnesses. For the foregoing reasons, the preponderance of the evidence is against service connection for bradycardia, as secondary to his service-connected hepatitis C and diabetes mellitus. The benefit-of-the-doubt doctrine is, thus, not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Higher Initial Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. An initial compensable rating for hepatitis C is denied. The Veteran’s hepatitis C is rated as noncompensable under DC 7345. DC 7345 provides ratings for chronic liver disease without cirrhosis (including hepatitis B, chronic active hepatitis, autoimmune hepatitis, hemochromatosis, drug-induced hepatitis, etc., but excluding bile duct disorders and hepatitis C). 38 C.F.R. § 4.114, DC 7345. Under DC 7345, chronic liver disease that is not symptomatic is rated as noncompensably disabling. A 10 percent rating is warranted for intermittent fatigue, malaise, and anorexia, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. A 20 percent rating contemplates daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. A 40 percent rating is assigned in cases of daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. A 60 percent rating is warranted for daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. A 100 percent rating is assigned in cases of near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). A March 2009 VA examination report shows that the Veteran had tenderness in the right lower quadrant of the abdomen. The examiner indicated that the Veteran’s abdomen was nontender to palpation and that there were no palpable masses. In March 2018, the Veteran was afforded a VA examination. The VA examiner indicated that hepatitis C was diagnosed in 2004. The examiner found that the Veteran had been cured of his hepatitis C, he was asymptotic, and that he did not require further treatment for hepatitis C. The examiner explained that a January 2015 VA liver clinic treatment record reflects that there was “no measurable hepatitis C.” Similarly, the examiner noted that a January 2015 VA hepatitis C viral RNA quantitative report showed that there was no detectable viral RNA in the Veteran’s blood. The examiner indicated that a 2014 ultrasound showed a normal liver. Furthermore, the VA examiner indicated that the Veteran did not have any signs or symptoms attributable to liver disease or cirrhosis. Specifically, the examiner indicated that the Veteran did not have incapacitating episodes of symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia or upper right quadrant pain. Although the examiner indicated that the Veteran’s abdomen was soft, there were no masses, tenderness, or organomegaly. For the reasons set forth below, an initial compensable rating for hepatitis C is not warranted. The March 2018 examiner specifically found that the Veteran had been cured of hepatitis C and that he was asymptotic. Although during the VA examinations, there was right upper quadrant tenderness and a soft abdomen, there was no evidence that these symptoms were attributable to hepatitis C or that the Veteran had experienced daily fatigue, malaise, and anorexia requiring dietary restriction or continuous medication; or any incapacitating episodes. As such, a compensable rating is not warranted under DC 7345. During the appeal period, the Veteran had submitted general statements suggesting that his hepatitis C warrants a compensable rating. See, e.g., VA Form 9 dated August 2010. In the Veteran’s submitted statements, he had provided vague statements and did not specifically identify symptoms that he had experienced due to his hepatitis C. For example, in the Veteran’s January 2010 statement, he reported that he did not have symptoms such as malaise, but he suggested that he had other symptoms; however, he did not indicate what symptoms he had experienced. Similarly, in the Veteran’s August 2010 VA Form 9, he stated that he experienced symptoms that were described in 40 percent rating criteria under DC 7354; however, the Veteran did not indicate what symptoms he had been experiencing. To the contrary, during the March 2018 VA examination, the Veteran did not report any symptoms that he had been experiencing. Therefore, the Veteran’s statements noted above regarding his hepatitis C are not probative, as they were vague and did not identify any particular symptom. For all the foregoing reasons, an initial compensable rating for hepatitis C is denied. The preponderance of the evidence is against assignment of any higher rating. Additionally, a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether a veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. In this case, the Veteran has not contended and the evidence does not show that he is unable to secure or follow substantially gainful employment due to his service-connected hepatitis C. REASONS FOR REMAND The issue of service connection for a left eye disability, other than a left eye cataract, is remanded. The Veteran contends that during service he had a left eye burn and that it caused current blood clots on his left eyelid and a disability. Indeed, the Veteran’s service treatment records (STRs) show that he had a cigarette burn to the eye. In a February 2018 VA examination report, the VA examiner diagnosed glaucoma suspect and indicated that the etiology was unknown, as there was no evidence that it was related to the Veteran’s diabetes mellitus or that he had any history of an injury. In an April 2019 VA opinion, a VA optometrist, opined that it was less likely than not that the Veteran’s current blood clots on his left eye lid were due to his in-service left eye injury. The Board finds that a remand is necessary for a VA opinion, as there is no opinion that addresses whether the Veteran’s glaucoma suspect is due to his in-service left eye injury. The matter is REMANDED for the following action: The claims folder should be referred to an optometrist for an opinion as to the nature and etiology of the Veteran’s left eye disability, other than a left cataract. The optometrist should first identity whether the Veteran’s in-service cigarette burn to the left eye caused a current left eye disability, other than left eye cataract and glaucoma suspect. Then, the optometrist should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left eye disability, other than a left cataract, to include suspected glaucoma, had its onset in service or is otherwise related to service, to include as due to the in-service cigarette burn. The optometrist should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the service-connected hepatitis C or diabetes mellitus caused or aggravated his left eye disability. The optometrist should provide a rationale for any opinion rendered. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.