Citation Nr: 21042587 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-11 672 DATE: July 13, 2021 ORDER Service connection for a low back disability is denied. Service connection for an eye disability is denied. Service connection for sleep apnea is denied. Service connection for urethritis is denied. REMANDED Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability is remanded. FINDINGS OF FACT 1. The Veteran has been recognized as having been exposed to herbicide agents during his active service. 2. The Veteran's low back disability was not incurred in or otherwise the result of active service, to include any herbicide agent exposure. 3. The Veteran's eye disability was not incurred in or otherwise the result of active service, to include any herbicide agent exposure. 4. The Veteran's sleep apnea was not incurred in or otherwise the result of active service, to include any herbicide agent exposure. 5. The Veteran's urethritis was not incurred in or otherwise the result of active service, to include any herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for a grant of service connection for an eye disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for a grant of service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for a grant of service connection for urethritis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to October 1970. Unfortunately, he passed away in May 2016. His surviving spouse has been substituted as the appellant pursuant to 38 U.S.C. § 5121A. The present matter is before the Board of Veterans' Appeals (Board) from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana. The appellant had requested a Board hearing before a Veterans Law Judge as part of this appeal in an August 2018 Form 9. However, she withdrew this request via a December 2018 statement. In April 2020, the Board remanded the current appellate claims for further development, to include competent medical opinions to address the service connection claims. There has been at least substantial compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). However, and although the Board regrets the additional delay, for the reasons detailed below further development is still required for the TDIU claim. The Board observes that additional private medical records were added to the Veteran's claims file in September 2020, which is after the July 2020 Supplemental Statement of the Case (SSOC). As this case is in the legacy appeals system, the laws and regulations pertinent to that system apply. Under 38 U.S.C. § 7105(e), for cases in which substantive appeals are received on or after February 2, 2013, as is the case here, if the claimant or the claimant's representative submits evidence to the agency of original jurisdiction (AOJ) or the Board for consideration in connection with the issue on appeal, the Board may consider such evidence in the first instance unless the claimant or representative requests in writing that the AOJ initially review such evidence. This automatic waiver is an exception to the general requirement of a waiver of AOJ review or a supplemental statement of the case considering new pertinent evidence. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. SERVICE CONNECTION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In regard to the eye disability claim, the Board notes that refractive errors of the eyes (including hypermetropia, astigmatism, presbyopia, and refractive amblyopia) are considered congenital or developmental defects and not diseases or injuries for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9. Service connection is only possible in such cases when there is evidence of a superimposed disease or injury on the congenital defect. See Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). In other words, absent a superimposed disease or injury, service connection may not be granted for refractive error of the eyes even if visual acuity decreased during service. In adjudicating this appeal, the Board observes that nothing of record shows that the Veteran or the appellant has the requisite knowledge, skill, experience, training, or education to render medical opinions. Consequently, their assertions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). However, in making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is 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 event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Initially, the Board notes the Veteran's spine, eyes, and genitourinary system were evaluated as normal on his February 1969 pre-induction examination. There was no indication of sleep apnea on this examination either. On a concurrent Report of Medical History, he did check the box to indicate "eye trouble," but physician's comments indicate it was due to the need for glasses. He checked the box to indicate he did not have frequent trouble sleeping, but did check box to indicate he had been a sleepwalker. Physician's comments noted somnambulism as child only. There was no indication of any of the other claimed disabilities on this Report. The Veteran was treated for complaints of nervousness with insomnia in August 1969, but there were no findings of sleep apnea during service. Similarly, he was treated for complaints regarding the right testicle in January 1970, and received treatment for venereal warts in various other records from 1970. However, he was not specifically diagnosed with urethritis during his active service. The Veteran's spine, eyes, and genitourinary system were again evaluated as normal on his September 1970 expiration of term of service examination; and there was no indication of sleep apnea. Although the post-service medical records including findings of and/or treatment for symptoms associated with the claimed disabilities, these are all dated years after his separation from service. There are also references to a post-service back injury in December 1995. The United States Court of Veterans Appeals (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service, can be probative evidence against a claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of a low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). The appellant identified exposure to herbicide agents as a potential cause of the Veteran's disabilities. The Veteran was recognized as having been exposed to herbicide agents during his active service. See, e.g., October 2016 rating decision granting cause of death. VA regulations provide that service connection is warranted for certain diseases as presumptively due to exposure to herbicide agents; April 2020 Board decision/remand. 38 C.F.R. §§ 3.307, 3.309(e). However, the record does not reflect the Veteran's claimed low back disability, eye disability, sleep apnea, or urethritis are among the conditions recognized as being presumptively associated with such exposure under VA regulations. The lack of a presumptive condition does not preclude the establishment of service connection as due to herbicide agent exposure with proof of actual causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999); see also Polovick v. Shinseki, 23 Vet. App. 48, 53 (2009). However, in light of the lack of such a presumptive condition, and the Veteran's medical history indicating no pertinent findings until years after service, the Board finds competent medical evidence is required to relate the etiology of the claimed disabilities to service to include exposure to herbicide agents. No competent medical evidence is of record which explicitly relates the etiology of the any of the claimed disabilities to service. Further, the Board previously found in April 2020 that an April 2012 VA examiner's opinion on the urethritis, and a June 2014 VA medical opinion on the sleep apnea claim, were inadequate. The Board remanded the claims for competent medical opinions to adequately address all of these service connection claims, which was accomplished in June 2020. One VA examiner expressed an opinion against the eye claim, while a different VA examiner expressed opinions against the other service connection claims. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Nothing in the record causes the Board to doubt the qualifications of either of the June 2020 VA examiners to provide competent medical evidence, to include the appellant's contentions. Both were familiar with the Veteran's medical history from review of the VA claims folder. Further, none of the opinions were expressed in speculative or equivocal language, and were supported by stated rationale. Regarding the claimed eye disability, the pertinent VA examiner stated it was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In support of this opinion, the examiner noted the Veteran's records did not show any significant eye condition during service. The examiner stated there was a notation for "eye trouble" indicated on an exam in September 1970 but this was clarified as needing glasses. There was no other notation of an injury to the eye or other eye issues during service. In addition, records showed a diagnosis of senile cataract in September 2015. The examiner noted that cataracts have not been linked to herbicide agent exposure and given no eye injury are less likely than not incurred in or caused by active service. Moreover, it was noted that cataract development was common as the eye ages. The examiner stated the Veteran's senile cataracts were due to the aging process; that at his age in 2015, the examiner would expect a cataract; noting that cataracts normally start showing in the 50s and by that time he was close to 70. The examiner further stated that a cataract would not only be expected, but on many people would have already been removed. This was a natural aging process. If this would have been found in the 1970 or 1980s, there might have been an underlying cause. Therefore, the examiner concluded the Veteran's cataracts were less likely than not incurred in or caused by active service, to include any symptomatology and herbicide agent exposure therein (notwithstanding the fact that it may not be a presumed association). The other June 2020 VA examiner stated the claimed urethritis was less likely than not incurred in or caused by the military service, to include any symptomatology and herbicide agent exposure therein. The examiner noted that urethritis, infection of the urethra, by definition was due to infection which was for the most part due to sexually transmitted diseases and in some less common cases due to opportunistic infection such as in immune-compromised people or ones with chronic disease such as diabetes mellitus(which is the case with this Veteran) but this was in no way due to herbicide agent exposure. Review of the medical records was negative for urethritis during the service. The VA examiner stated the claimed lower back condition was less likely than not incurred in or caused by the military service, to include any symptomatology and herbicide agent exposure therein. The examiner noted that review of the medical records show that the Veteran was inducted in the service March 1969 and was discharged in October 1970; and that there was no documentation of back complaint(s) or condition(s) during the service. Review of the medical records show that the Veteran complained of lower back pain around 2012; that the Veteran described the pain as "achy" from right to left across the lower back, aggravated by standing and heavy lifting; and that no specific diagnosis was rendered. Regardless, there were no known back condition(s) that were known to be caused by herbicide agent exposure. The examiner also found that the claimed sleep apnea syndrome was less likely than not incurred in or caused by the military service, to include any symptomatology and herbicide agent exposure therein. Review of the medical records did not show any documentation of symptoms of, treatment for or diagnosis of sleep apnea during the service. The examiner noted the Veteran had a sleep study in March 2013 which showed obstructive sleep apnea. The examiner also noted that obstructive sleep apnea was due to impediment of the airflow due structural narrowing of the upper airways and was not due to herbicide agent exposure. The examiner acknowledged the Veteran's February 1969 induction exam indicated sleep walking; that it was clarified that somnambulism was as a child only; and that there was no further evidence of somnambulism noted in the records to indicate any chronic condition. The examiner acknowledged that sleepwalking was sometimes attributed to sleep apnea. However as this was not present during service or documented elsewhere, the somnambulism would not be considered an early symptom of sleep apnea in this Veteran's case. No competent medical evidence is of record which explicitly refutes the opinions of the aforementioned VA examiners. In light of the foregoing, the Board finds the June 2020 VA examiners' opinions to be adequate, persuasive, and entitled to significant probative value in the instant case. For all these reasons, the Board finds that the preponderance of the evidence is against the Veteran's low back disability, eye disability, sleep apnea, and urethritis being incurred in or otherwise the result of active service to include exposure to herbicide agents therein. No other basis for establishing service connection is demonstrated by the record, to include the other presumptive provisions of 38 C.F.R. § 3.309 or as secondary to a service connection disability in accord with 38 C.F.R. § 3.310. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application and these claims must be denied. REASONS FOR REMAND It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). During his lifetime, the Veteran was service connected for migraine headaches, evaluated as 50 percent disabling; tinnitus evaluated as 10 percent disabling; and hearing loss, evaluated as noncompensable (zero percent). All of these ratings were effective from July 15, 2011; and his overall combined rating was 60 percent. See 38 C.F.R. § 4.25. As such, he did not satisfy the schedular criteria for consideration of a TDIU. However, a TDIU may also be awarded on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The Board is precluded from adjudicating in the first instance whether TDIU is warranted on an extraschedular basis. Rather, such issue must be referred to the Director of the Compensation Service for initial consideration. The Board acknowledges that the July 2013 rating decision found this case did not warrant such referral for consideration of a TDIU on an extraschedular basis. However, the Board finds that such referral is warranted in this case as there is evidence indicating unemployability due to the service-connected disabilities. In pertinent part, a December 2012 VA examiner's opinion detailed that the symptomology associated with the Veteran's service-connected migraine headaches mad it very difficult or impossible for him to secure and maintain gainful employment. In addition, the Board observes that no VA Form 21-8940 is of record. The VA Form 21-8940 requests information regarding the Veteran's occupational and educational history, which is necessary to determine entitlement to TDIU. That information can be critical to resolution of the case. Moreover, the Court has indicated that failure to provide that form or the equivalent information can constitute abandonment of the TDIU claim. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012); see also 38 C.F.R. § 3.158. As a remand is otherwise required in this case, the Board finds that the appellant should be provided an opportunity to submit a VA Form 21-8940 or its equivalent regarding the Veteran. The matter is REMANDED for the following: 1. Ask the appellant to complete and return a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) for the Veteran. 2. Refer the Veteran's case to the Director of the Compensation Service for consideration of whether TDIU is warranted on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) for any or all of the period from July 15, 2011 to the Veteran's death in May 2016. (Continued on the next page) 3. After completing the above, and any other development as may be indicated, the issue on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Timothy Berryman Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.