Citation Nr: 21068351 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 19-10 230 DATE: November 10, 2021 ORDER Entitlement to service connection for open angle glaucoma is denied. Entitlement to service connection for bilateral cataracts is denied. Entitlement to service connection for a kidney disability is denied. Entitlement to service connection for a heart disability is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for degenerative arthritis of the lumbar spine is granted. FINDINGS OF FACT 1. Bilateral open angle glaucoma did not manifest in service, and it is not otherwise attributable to service or service-connected disability. 2. Bilateral cataracts did not manifest in service, and it is not otherwise attributable to service or service-connected disability. 3. A kidney disability did not manifest in service or within one year of discharge from service, and it is not otherwise attributable to service or service-connected disability. 4. A heart disability did not manifest in service or within one year of discharge from service, and it is not otherwise attributable to service or service-connected disability. 5. The Veteran did not have a right or left hip disability. 6. The competent and probative evidence of record indicates that the Veteran's spine disorder, diagnosed as degenerative arthritis of the lumbar spine, had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral open angle glaucoma are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303, 3.310 (2020). 2. The criteria for service connection for bilateral cataracts are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303, 3.310 (2020). 3. The criteria for entitlement to service connection for a kidney disability have not been met. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). 4. The criteria for entitlement to service connection for a heart disability have not been met. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). 5. The criteria for service connection for a right hip disability are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2020). 6. The criteria for service connection for a left hip disability are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2020). 7. The criteria for entitlement to service connection for degenerative arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1971 to October 1991. He died in October 2018. The appellant is his surviving spouse and substitute claimant in this case. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified during a Board hearing in July 2021 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. During the hearing and in various written statements, the appellant discussed entitlement to service connection for hypertension. The Board notes that hypertension was previously denied in a July 2009 rating decision and on appeal in a September 2013 Board decision. Entitlement to service connection for hypertension was not addressed in the August 2018 rating decision that is subject of the current Board decision and thus the Board does not have jurisdiction to address this issue at this juncture. Service Connection 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). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he or she files the a claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability 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. 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). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). However, 38 C.F.R. § 3.303 (b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. § 1101. With respect to the current appeal, this list includes arthritis and cardiovascular-renal disease. See 38 C.F.R. § 3.309 (a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis and cardiovascular-renal disease, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for 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. 38 C.F.R. § 3.310(b). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. At the outset, the Board acknowledges that the majority of the Veteran's service treatment records are not available. The Court of Appeals for Veterans Claims has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 1. Entitlement to service connection for bilateral open angle glaucoma 2. Entitlement to service connection for bilateral cataracts Post-service VA treatment records reflect assessment ocular hypertension in October 2009 and of open angle glaucoma in November 2016. On VA examination in June 2018, the Veteran stated that the onset of his eye symptoms was in 1975 and that an eye condition began in 2008 with a diagnosis of glaucoma. After interview and evaluation, the examiner diagnosed bilateral cataracts and open angle glaucoma. Upon review of the record, the examiner opined that the Veteran's cataracts. glaucoma and high eye pressure were unrelated to wearing glasses while in service or to any other experience in service. In various written statements and during the Board hearing, the appellate expressed that the Veteran's bilateral open angle glaucoma and cataracts were the result of his hypertension. Her, the medical evidence of record documents diagnosis of glaucoma or cataracts many years after discharge from service. The Board notes that the passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Moreover, none of the evidence otherwise suggests onset in or a relationship to service. The only opinion of record, that of the June 2018 VA examiner, weighs against the claim, and neither the Veteran in his lifetime, nor the appellant, presented statements or evidence in support of the claims for service connection on a direct basis. The Board has considered the appellant's statements that the Veteran's hypertension caused his glaucoma and cataracts. However, as noted above, service connection for this disability has been previously denied and this matter is not currently before the Board. The denial of entitlement to service connection for hypertension precludes entitlement to service connection for cataracts or glaucoma on a secondary basis. Where, as here, service connection for the primary disability has been denied, the Veteran cannot establish entitlement to service connection for a secondary condition as a matter of law. See 38 C.F.R. § 3.310(a), (b) (providing for service connection for a disability only where such disability is proximately due to, the result of, or aggravated by, a disease or injury that is already service-connected); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Based on the foregoing, the preponderance of the evidence is against the claim for service connection for bilateral open angle glaucoma and cataracts. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for chronic kidney disease 4. Entitlement to service connection for a heart disorder Post service treatment records reflects assessment of chronic kidney disease, as well as a heart disorder. The Veteran's death certificate list the primary cause of death as hypertensive cardiovascular disease with an onset many years prior. However, the medical evidence of record does not document diagnosis of a heart or kidney disorder until many years after discharge from service. The Board notes that the passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson, 230 F.3d at 1333. Moreover, none of the evidence otherwise suggests onset in or a relationship to service, and neither the Veteran in his lifetime, nor the appellant, presented statements or evidence in support of the claims for service connection on a direct or presumptive basis. Thus, based upon the cumulative record, the Board concludes that the claimed kidney and heart disabilities first manifest years post service and that there is no nexus to service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. With respect to service connection on a secondary basis, again, the Board has considered the appellant's statements that the Veteran's hypertension caused his kidney and heart disorders. However, as noted above, service connection for this disability has been previously denied and this matter is not currently before the Board. The denial of entitlement to service connection for hypertension precludes entitlement to service connection for a kidney or heart disorder on a secondary basis. Where, as here, service connection for the primary disability has been denied, the Veteran cannot establish entitlement to service connection for a secondary condition as a matter of law. See 38 C.F.R. § 3.310(a), (b) (providing for service connection for a disability only where such disability is proximately due to, the result of, or aggravated by, a disease or injury that is already service-connected); Sabonis, 6 Vet. App. at 430. Finally, the Board acknowledges that, during his lifetime, the Veteran was not afforded a VA examination with respect to his claims of service connection for the claimed kidney or heart disorders for opinion as to whether the disabilities are related to service or to service-connected disability, nor has the file subsequently been reviewed for opinion as to the likely etiology of these disorders. As explained above, no such examination was required because the evidence does not suggest that the claimed disabilities, or symptoms thereof, had their onset in service or may be associated with the Veteran's service or a service-connected disability. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, remand for opinion on the etiology of these claimed disorders is not warranted. Based on the foregoing, the preponderance of the evidence is against the claims for service connection for kidney and heart disabilities. The benefit-of-the-doubt doctrine is therefore not for application, and the claims must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 5. Entitlement to service connection for a right hip disability 6. Entitlement to service connection for a left hip disability The Veteran filed a claim for service connection for right and left hip arthritis in April 2018. During the appellant's 2021 Board hearing, she expressed that the Veteran's hip problems were related to his power lifting while in service. However, upon review of the claims file, the Board finds no indication of complaint, finding, or diagnosis referrable to the right or left hip in the various VA or private medical records. The Board emphasizes that 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; see also McClain, 21 Vet. App. at 321. Accordingly, the Board finds that there was no disability present during the pendency of the claim to support entitlement to service connection for a right or left hip disability. See Brammer, 3 Vet. App. at 225; McClain, 21 Vet. App. at 321; Romanowsky, 26 Vet. App. 289. Discussion of the remaining criteria for service connection is therefore unnecessary. The Board has considered the Veteran's report of arthritis. However, there is no indication of diagnosis of arthritis in the record, and the Veteran did not allege, and the evidence does not reflect, that he had a hip condition that productive of functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In the absence of a current disability, service connection cannot be established. See Holton, 557 F.3d at 1366 (holding that entitlement to service connection requires, among other things, evidence of a current disability); see also Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (upholding VA's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes). As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49 (1990). 7. Entitlement to service connection for a spine disability The Veteran and appellant contended that his back/spine disability was the result of his in-service activities including power lifting and track. Although the Veteran's service treatment records are largely unavailable, the Veteran submitted documentation, photographs, and articles of his experiences in running and weight- lifting in service. A September 2013 emergency room report indicated complaint of back pain with radiology studies documenting diagnosis of mild degenerative disc disease and subtle lower lumbar face arthrosis. An October 2016 report reflects complaints of back pain for many years, with the Veteran reporting that he did very heavy weightlifting in the 80s and 90s and that he was a sprinter in college and with the Air Force. At that time, he was diagnosed with degenerative disc disease, facet arthropathy, and possible idiopathic skeletal hyperostosis. The Veteran was afforded a VA examination in June 2018, at which time the examiner diagnosed degenerative arthritis of the spine and noted a date of diagnosis of 1979. The Veteran reported onset of symptoms in 1979, with gradual onset from wearing heavy gear, running, and rucking. The examiner opined that the Veteran's spine disorder was less likely than not related to service, as there were no medical records showing diagnosis or treatment for the back during active duty, and the first report or document back diagnosis was after active duty. In sum, the evidence discussed above reflects complaint of back problems in service, and post-service diagnosis of degenerative arthritis of the lumbar spine. Post-service treatment records and examination reports from 2013 indicate a history of back pain, and the Veteran noted continued symptoms since service on VA examination in June 2018. Given the unavailability of service treatment records, the reports of back pain consistent with his experiences as a power lifter in service, and reports of chronic symptoms since service, the Board finds the Veteran's reports as to the onset of symptoms in service, as well as the continuity of his symptoms since service, to be credible. Thus, in light of the Board's heightened duties in this case, the Board resolves reasonable doubt in the Veteran's favor and finds that both and in-service incurrence and continuity of symptomatology since service, is established. In so finding, the Board acknowledges the negative VA opinion of record. However, the examiner did not address the Veteran's report of back problems in and since service. Moreover, the examiner based the opinion largely on the lack of service treatment records, which the Board notes are unavailable though no fault of the Veteran. Given the Veteran's report of onset of symptoms in service, continued back complaints and treatment since service, the post-service diagnosis of arthritis, and the Veteran's competent and credible reports that his low back symptoms began in and continued since service, the Board finds that the Veteran's spine disorder, diagnosed as degenerative arthritis lumbar spine, had its onset during service and is etiologically related to service. Service connection is therefore warranted. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker, 708 F.3d at 1331. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. E. Wilkerson, 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.