Citation Nr: 21065904 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-24 410 DATE: October 27, 2021 ORDER Service connection for cysts is denied. Service connection for urinary obstruction is denied. Service connection for vertigo is denied. Service connection for muscle pain/joint swelling pain is denied. REMANDED Service connection for a right eye disorder (claimed as vision, swelling, and redness) is remanded. Service connection for a left eye disorder (claimed as vision, swelling, and redness) is remanded. Service connection for prostate cancer, including as due to radiation exposure is remanded. FINDINGS OF FACT 1. The Veteran died in October 2016; the appellant is the Veteran's surviving spouse, who is substituted as the claimant to continue the pending appeal to completion. 2. Prior to death, the Veteran was not diagnosed with cysts. 3. Prior to death, the Veteran was not diagnosed with a disability manifested by symptoms of urinary obstruction, other than the claimed prostate cancer. 4. Prior to death, the Veteran was not diagnosed with vertigo. 5. Prior to death, the Veteran was not diagnosed with a disability manifested by symptoms of muscle pain and/or joint swelling pain. CONCLUSIONS OF LAW 1. The criteria for service connection for cysts have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for service connection for urinary obstruction have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 3. The criteria for service connection for vertigo have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 4. The criteria for service connection for muscle pain/joint swelling pain have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is the surviving spouse of the Veteran, who had active service from December 1954 to December 1956. While the appeal was pending, the Veteran died in October 2016. The appellant is now pursuing the appeal as a substituted claimant under the provisions of 38 U.S.C. § 5121A. See April 2020 Notification Letter. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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). 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 current disability. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). 1. Service connection for cysts 2. Service connection for urinary obstruction 3. Service connection for vertigo 4. Service connection for muscle pain/joint swelling pain The appellant generally contends that service connection for cysts, urinary obstruction, vertigo, and muscle pain/joint swelling pain are warranted. See December 2011 VA Form 21-526b. After a review of all the lay and medical evidence of record, the Board find that the weight of the evidence demonstrates that prior to death, the Veteran was not diagnosed with cysts, a disability manifested by symptoms of urinary obstruction (other than the claimed prostate cancer), vertigo, and a disability manifested by symptoms of muscle pain and/or joint swelling pain. VA and private treatment records do not reflect any complaints, symptoms, treatment, or diagnoses for cysts or vertigo. A November 2013 private treatment record reflects the Veteran was newly diagnosed with metastatic prostate cancer and reported symptoms of urinary obstruction and moderate bone aches associated with the prostate cancer, the claim for which the Board addresses in the instant decision below. Aside from the November 2013 private treatment record, other VA and private treatment records do not reflect that the Veteran was diagnosed with any other disability that had been manifested by symptoms of urinary obstruction or muscle pain/joint swelling. In the absence of a current disability at any time during or immediately prior to the relevant claim period on appeal, the claims for service connection for cysts, urinary obstruction, vertigo, and muscle pain/joint swelling pain, must be denied. See Brammer, 3 Vet. App. 223; McClain, 21 Vet. App. 319 (disability needs to be present at any point during the claim period); Romanowsky, 26 Vet. App. 289 (current disability includes a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits). REASONS FOR REMAND 5. Service connection for a right eye disorder is remanded. 6. Service connection for a left eye disorder is remanded. 7. Service connection for prostate cancer is remanded. The appellant generally asserts that a right and left eye disorder and prostate cancer were the result of the Veteran's active service, including to radiation exposure during service. In this case, the Veteran's exposure to radiation has been conceded due to his participation in Operation Redwing at the Pacific Proving Ground in 1956. Prior to death, the Veteran was provided with a VA examination for the claimed eye disorders in July 2015, the examination report for which reflects the Veteran was diagnosed with bilateral cataracts and recurrent conjunctivitis. The July 2015 VA examiner opined that it was is less likely than not that the Veteran's diagnosed eye disorders were etiologically related to service as the eye disorders did not have their onset during service; however, the VA examiner did not provide an opinion as to whether the diagnosed eye disorders were etiologically related to radiation exposure during service. Similarly, the record does not contain a medical opinion as to whether the Veteran's prostate cancer was etiologically related to radiation exposure during service. Although the record includes an April 2014 Administrative Decision determining the Veteran's prostate cancer was not the result of radiation exposure, it is unclear to the Board whether the April 2014 Administrative Decision was premised upon any medical evidence. The matters are REMANDED for the following action: Request that a VA medical professional review the electronic file and provide the VA addendum opinions requested below. The relevant documents in the electronic file should be made available to, and be reviewed by, the VA examiner. The VA examiner should note such review in the addendum opinions. The VA examiner should provide the following opinions: a) Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's right and left eye cataracts and recurrent conjunctivitis was etiologically related to service, including to radiation exposure during service? b) Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's prostate cancer was etiologically related to service, including to radiation exposure during service? J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, Counsel 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.