judge_norm: SHANE A DURKIN

text:
Citation Nr: 1517000
Decision Date: 04/21/15    Archive Date: 04/24/15

DOCKET NO.  13-18 719A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States

ATTORNEY FOR THE BOARD

A. Odya-Weis, Associate Counsel

INTRODUCTION

The Veteran had active military service from April 1968 to March 1970.  The Veteran died in December 2009.  The appellant is his surviving spouse.

This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA).  Jurisdiction over the case was subsequently transferred to the RO in St. Petersburg, Florida.

The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System.

REMAND

The Veteran died in December 2009, with the official certificate of death listing the immediate cause of death as sepsis with shock and the contributing conditions of neutropenic enterocolitis and acute myelogenous leukemia.  At the time of his death, service connection had been established for residuals of recurrent right shoulder dislocation.

The appellant contends that the Veteran's death should be service connected because his acute myelogenous leukemia was caused by his exposure to herbicides in the Republic of Vietnam.

In a July 2011 notice of disagreement, the appellant stated that a VA treating physician told her that the Veteran's acute myelogenous leukemia was directly linked to his herbicide exposure and that she believed the physician noted his opinion in his treatment records.

In a June 2013 VA Form 9, the appellant asserted that acute myelogenous leukemia was very similar to B-cell chronic lymphocytic leukemia, a condition that was presumptively linked to herbicide exposure, because the cancers both triggered abnormal growth of white blood cells.

The evidence of record does not document any VA medical opinion linking the Veteran's leukemia to his herbicide exposure in service.  Therefore, further development to obtain any outstanding VA records pertinent to the appellant's claim should be undertaken.  In addition, the RO or the Appeals Management Center (AMC) should send the appellant a letter requesting her to provide a statement from the VA treating physician referenced above supporting her contention that his leukemia was caused by his exposure to herbicides in service.

If the foregoing development does not result in the receipt of sufficient medical evidence to substantiate the appellant's claim, the RO or the AMC should obtain an appropriate VA medical opinion addressing the appellant's claim.

Accordingly, this case is REMANDED to the RO or the AMC, in Washington, D.C., for the following actions:

1. The RO or the AMC should undertake appropriate development to obtain any outstanding VA treatment records pertinent to the appellant's claim.

2. The RO or the AMC should request the appellant to provide an opinion with supporting rationale from the aforementioned VA treating physician supporting the appellant's claim that the Veteran's acute myelogenous leukemia was related to his exposure to herbicides in service.

3. If the foregoing development does not result in the receipt of sufficient evidence to substantiate the appellant's claim, all pertinent evidence of record should be made available to and reviewed by a physician with sufficient expertise who should be requested to state an opinion as to whether there is a 50 percent or better probability that the Veteran's acute myelogenous leukemia was etiologically related to his presumed exposure to herbicides in the Republic of Vietnam.

The rationale for the opinion must also be provided.  If the physician is unable to provide the required opinion, he or she should explain why.  If the physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed.

4. The RO or the AMC should also undertake any other development it determines to be warranted.

5. Then, the RO or the AMC should readjudicate the issue on appeal.  If the benefit sought on appeal is not granted to the appellant's satisfaction, the RO or the AMC should furnish to the appellant and her representative a supplemental statement of the case and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The appellant need take no action until she is otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West 2014).

_________________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2014).


series: legacy

judge_norm: J W ZISSIMOS

disposition: denied

condition: eye

text:
Citation Nr: 1518000
Decision Date: 04/27/15    Archive Date: 05/05/15

DOCKET NO.  13-15 394	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama

THE ISSUE

Entitlement to service connection for cataracts, to include as due to exposure to ionizing radiation.

REPRESENTATION

Veteran represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

K.C. Spragins, Associate Counsel

INTRODUCTION

The Veteran had active service from May 1977 to May 1981 with the United States Air Force.  He also served in the Oklahoma Air National Guard.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision from the Department of Veterans' Affairs (VA) Regional Office (RO) in Jackson, Mississippi.  The RO in Montgomery, Alabama, certified this case to the Board on appeal.

The Board notes that the Veteran was initially represented by the Alabama Department of Veterans Affairs.  During the pendency of the appeal, he changed his representation to the Disabled American Veterans in March 2013.

In addition to the paper claims file, the Veteran's Virtual VA and Veterans Benefits Management System (VBMS) paperless claims files were reviewed for this appeal.  The VBMS file reveals a January 2015 brief.  The remaining documents in both VBMS and Virtual VA are either duplicative of the records in the paper claims file or irrelevant to the issue on appeal.

FINDINGS OF FACT

1.  The Veteran has not been shown to have been exposed to ionizing radiation in service.

2.  The Veteran's cataracts did not manifest in service or for many decades thereafter and are not related to active service, including exposure to ionizing radiation.

CONCLUSION OF LAW

Cataracts were not incurred in active service, nor may they be presumed to have been so incurred.  38 U.S.C.A. �� 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. �� 3.102, 3.303, 3.309, 3.311 (2014).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. �� 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2014).

The notice requirements were met in this case in an October 2011 letter.  That letter notified the Veteran of the information and evidence needed to substantiate and complete a claim for service connection, to include notice of what part of the evidence he should provide, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.  Furthermore, the requisite notice was provided prior to the initial adjudication of the claim in May 2012.  Accordingly, the duty to notify has been satisfied.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. � 5103A; 38 C.F.R. 3.159(c), (d).  This duty to assist contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that the VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. � 3.159 (c)(4).  In this case, VA obtained the Veteran's service treatment records, military personnel records, and all relevant, identified, and available post-service treatment records.  The Veteran has not identified any outstanding evidence that may be relevant to his claim.
The Board notes that the Veteran has not been afforded a VA examination in connection with his claim.  Under the law, an examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service- connected disability. 38 C.F.R. � 3.159(c)(4).

In this case, a VA examination is unnecessary to decide the claim for service connection for cataracts because such an examination would not provide any more pertinent information than is already associated with the claims file.  As will be explained, the Veteran has not been shown to have had a disease, event, or injury, including radiation exposure, during active military service.  Therefore, because there is no event, injury, or disease in service to which a current disorder could be related, the Board finds that a VA examination is unnecessary. 38 C.F.R. � 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an inservice event, injury, or disease).

For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case.

II.  Law and Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. �� 1110, 1131 (West 2014); 38 C.F.R. � 3.303(a) (2014).  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-the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)).  The absence of any one element will result in denial of service connection.

Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways.  See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 21 (1997).  First, there are diseases that are presumptively service-connected in radiation-exposed veterans under 38 U.S.C.A. � 1112(c) and 38 C.F.R. � 3.309(d).  Second, service connection can be established under 38 C.F.R. � 3.311, if the condition at issue is a radiogenic disease.  Third, direct service connection can be established under 38 C.F.R. � 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions.  See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994).

Here, the Veteran contends that he has cataracts due to radiation in service from radar equipment on aircraft.  See October 2011 Statement in Support of Claim.  In July 2011, the Veteran submitted a claim for service connection in which he stated that was he was exposed to radiation during service in his role as a jet engine mechanic on the flight line.  He elaborated that he only worked with Airborne Warning and Control System (AWACS) aircraft and that radar would continuously detect radiation exposure where he was working.  The Veteran reported that his duties included testing the radar equipment.  See October 2011 Statement in Support of Claim.  In addition, he contended that he used to work under conditions of 100 percent radiation exposure before a subsequent policy restricted them to working when the level of radiation exposure exceeded 15 percent.  See July 2011 Claim.  The Veteran's available personnel records did not note radar or radiation exposure when describing the Veteran's duties and performance.

The Veteran service personnel records indicate that he served as a jet engine mechanic.

The Veteran's service treatment records do not reflect that the Veteran's cataracts manifested during service.  His eyes were consistently evaluated to be normal during service, and the only medical treatment he received in service was in relation to prescription eyewear.  Furthermore, the Veteran did not report any issues with his eyes on his March 1981 Report of Medical History before separation.  The Board also notes that the Veteran has not reported, and the evidence does not show that he was treated for cataracts before the age of 48, which was many years after his discharge from active service.

A private treatment record indicates that the Veteran had a diagnosis of a posterior subcapsular cataract in his left eye in June 2008.  The record additionally noted nuclear sclerosis in the left eye.  In his August 2012 notice of disagreement, the Veteran reported that he had cataracts in both eyes, but that one eye had not yet progressed to the stage of diagnosis.  He further reported that he received surgery on each eye to remove the lenses.

The Board will first consider whether the Veteran is entitled to service connection as a radiation-exposed veteran on a presumptive basis under 38 U.S.C.A. � 1112(c) and 38 C.F.R. � 3.309(d).  A "radiation-exposed veteran" is defined by 38 C.F.R. � 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty for training, participated in a radiation-risk activity.  "Radiation-risk activity" is defined as onsite participation in a test involving the atmospheric detonation of a nuclear device; participation in the occupation of Hiroshima or Nagasaki, Japan, between August 6, 1945 and July 1, 1946; internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the occupation forces in Hiroshima or Nagasaki above; certain service for at least 250 days before February 1992 on the grounds of a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee; certain service before January 1, 1974 on Amchitka Island, Alaska; or certain service as an employee of the Department of Energy. 38 C.F.R. � 3.309(d)(3).

Diseases presumptively service-connected for radiation-exposed veterans under the provisions of 38 C.F.R. � 1112(c) and 38 C.F.R. � 3.309(d)(2) include:  leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary.  38 U.S.C.A. � 1112(c)(2); 38 C.F.R. � 3.309(d).

The Board notes that the Veteran's record of active service does not fall under any of the categories listed in 38 C.F.R. � 3.309(d)(3) that would allow him to be considered a "radiation-exposed veteran."  In addition, the Veteran's cataracts is not included among the presumptive diseases listed in 38 C.F.R. � 3.309(d)(2).  Thus, the Veteran may not establish service connection on a presumptive basis under 38 U.S.C.A. � 1112(c) and 38 C.F.R. � 3.309(d).

However, if a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. � 3.309(d)(3) and/or does not suffer from one of the presumptive diseases listed in 38 C.F.R. � 3.309(d)(2), the Veteran may still benefit from the special development procedures provided in 38 C.F.R. � 3.311 if a veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service.  Under 38 C.F.R. � 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation.  See 38 C.F.R. � 3.311(b)(2) (2014).

Under the special development procedures in � 3.311(a), dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946.  38 C.F.R. � 3.311(a)(2) (2014).  In all other claims, 38 C.F.R. � 3.311(a) requires that a request be made for any available records concerning the veteran's exposure to radiation.  These records normally include but may not be limited to a veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service treatment records, and other records which may contain information pertaining to the Veteran's radiation dose in service.  All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies.  38 C.F.R. � 3.311(a)(2)(iii) (2014).

The record shows that the Veteran has a potential diagnosis of a posterior subcapsular cataract, which qualifies as a radiogenic disease under 38 C.F.R. � 3.111(b)(2)(xvi).  In addition, the Veteran has indicated that this radiogenic disease manifested more than 6 months after the claimed exposure.  See 38 C.F.R. � 3.111(b)(5)(iii).  Thus, the Veteran was provided with the special development procedures of this section.

In March 2012, the RO sent a request to the Air Force Medical Service asking them to furnish a DD 1141 Record of Exposure to Ionizing Radiation or an equivalent record of occupational radiation exposure.

In April 2012, the Chief of Contingency Radiation Operations for the Air Force Medical Support Agency sent a memorandum to the RO with a subject of "Response to Radiation Exposure/Dose Inquiry for [the Veteran]."  The document stated that the office consulted the occupational radiation monitoring records in the U.S. Air Force Master Radiation Registry (MRER) and found no external or internal radiation exposure data for the Veteran.  The memorandum noted that, while the potential for exposure to ionizing radiation when near some radar systems does exist, they were unable to determine in this instance what specific exposure may have resulted for the Veteran.  It further noted that a meta-analysis was performed on Air Force personnel who were entered into the Air Force dosimetry programs based on their potential for exposure to radar systems.

Of the individuals monitored, only 5 percent had any measurable dose and only 0.1 percent had lifetime doses greater than 0.300 rem.  For comparison, the memorandum stated that the average annual exposure background radiation for people in the U.S. is 0.620 rem.  In addressing radiofrequency radiation, the memorandum added that the World Health Organization, the National Council of Radiation Protection and Measurements, and the National Radiological Protection Board shared the opinion that there are no long-term effects, including cancer, from low-level exposures to radiofrequency radiation.  The memorandum also noted that the U.S. Navy conducted an extensive epidemiological study of its personnel who worked with radar systems without finding any adverse health effects, including cataract induction, that could be attributed to radiofrequency radiation exposure.  Due to the lack of radiation exposure potential, no dose was given for the Veteran.

The Board finds that this medical opinion on the Veteran's lack of exposure to radiation is highly probative, as the conclusion is supported by a medical rationale and it is consistent with the verifiable facts from the Veteran's contentions.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04.

The Board acknowledges the Veteran's submission of a 2010 article from Radiation Research stating that relatively low doses of radiation can lead to posterior subcapsular cataracts.  However, the specific dose units were unreported.  Another abstract from a 2009 article in Radiation Research indicated that doses of 50 rem of ionizing radiation could lead to cataract development (the abstract referenced this dose in units of Gy; it has been converted to rem for ease of comparison with measured doses from other studies).  The Board notes that this dose measurement is much higher than the highest baseline of 0.300 rem that was found in 0.1 percent of individuals that had a measurable dose after exposure to radar systems in the Air Force.  Furthermore, as the Air Force did not find it possible to estimate the Veteran's radiation dose during service due to his lack of external or internal radiation exposure data, the Veteran does not have a measured dose to compare to these studies.

In reaching a decision under 38 C.F.R. � 3.311, a referral of this case to the Under Secretary of Benefits for an opinion as to whether sound scientific medical evidence can support the conclusion that it is at least as likely as not that the Veteran's disease resulted from radiation exposure during service, and consideration of the factors as listed in 38 C.F.R. � 3.311(e), need not be undertaken, as the Veteran is not shown to have been exposed to ionizing radiation.  Wandel v. West, 11 Vet. App. 200, 204-05 (1998).  Consequently, the Board finds that the evidence does not warrant a grant of the benefit sought under 38 C.F.R. � 3.311.

Under Combee, VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation, but must also whether the disability was otherwise the result of active service.  Thus, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation.

Turning to the question of whether service connection can be established on a direct basis, the Board finds that the evidence of record does not indicate that there is a nexus between the Veteran's cataracts and his active duty service.  The evidence does not show, nor has he alleged, that his cataracts manifested in service.  Moreover, the Veteran has not contended that his cataracts are related to any in-service injury, disease, or event other than his claimed exposure to radiation.

As noted above, the Air Force was unable to establish that the Veteran was exposed to ionizing radiation during service.  Moreover, a scientific study from the U.S. Navy did not find that exposure to radiofrequency radiation caused adverse health effects, such as cataract induction, and the scientific community agrees that there are no long-term effects.  The Veteran's assertions that he was exposed to ionizing radiation are less probative than the memorandum from the Chief of Contingency Radiation Operations of the Air Force Medical Support Agency, particularly in light of the research and testing on which that conclusion was based.

Based on the preceding discussion, the Board finds that the record does not contain probative evidence of any in-service incurrence of cataracts or a nexus between the Veteran's current disorder and his military service.  Thus, direct service connection must be denied.  As the preponderance of the evidence weighs against the claim, the appeal is denied.  38 U.S.C.A. � 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
ORDER

Entitlement to service connection for cataracts, to include as due to radiation exposure during active service, is denied.

____________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: BRADLEY W HENNINGS

disposition: granted

condition: hip

condition: knee

text:
Citation Nr: 1519000
Decision Date: 05/04/15    Archive Date: 05/13/15

DOCKET NO.  12-35 867	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUES

1.  Entitlement to service connection for a left hip disability.

2.  Entitlement to service connection for status post L4-L5 laminectomy.

3.  Entitlement to service connection for a left knee disability.

4.  Entitlement to service connection for left foot drop.

REPRESENTATION

Appellant represented by:	Texas Veterans Commission

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

A. Gibson, Associate Counsel

INTRODUCTION

The Veteran served on active duty from July 1965 to May 1967, and is a recipient of the Combat Infantry Badge and Purple Heart.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The Veteran had a personal hearing before the undersigned Veterans Law Judge (VLJ) in March 2015.

FINDINGS OF FACT

1.  In resolving all doubt in the Veteran's favor, a left hip disability is related to service.

2.  In resolving all doubt in the Veteran's favor, a status post L4-L5 laminectomy is related to service.

3.  In resolving all doubt in the Veteran's favor, a left knee disability is related to service.

4.  In resolving all doubt in the Veteran's favor, left foot drop is related to service.

CONCLUSIONS OF LAW

1.  The criteria for service connection for a left hip disability are met.  38 U.S.C.A. �� 1110, 1154(b), 5107 (West 2014); 38 C.F.R. �� 3.102, 3.304(d), (2014).

2.  The criteria for service connection for status post L4-L5 laminectomy are met.  38 U.S.C.A. �� 1110, 1154(b), 5107 (West 2014); 38 C.F.R. �� 3.102, 3.304(d), (2014).

3.  The criteria for service connection for a left knee disability are met.  38 U.S.C.A. �� 1110, 1154(b), 5107 (West 2014); 38 C.F.R. �� 3.102, 3.304(d), (2014).

4.  The criteria for service connection for left foot drop are met.  38 U.S.C.A. �� 1110, 1154(b), 5107 (West 2014); 38 C.F.R. �� 3.102, 3.304(d), (2014).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be granted if it is shown the Veteran developed a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. �� 1110, 1153 (West 2014); 38 C.F.R. �� 3.303, 3.306 (2014).

Service connection requires competent evidence showing: (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 - the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

A combat veteran may invoke the section 1154(b) presumption to show both that an event that allegedly caused disability occurred in service and that the claimed disability itself was incurred in service.  Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012).

The Veteran need only show that there is an approximate balance between positive and negative evidence in order to prevail.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

The Veteran reports rappelling out of helicopters to the ground, a 25 to 30 foot drop, multiple times.  He reports that he was injured one particular time when he had to twist his body to avoid an obstacle, landing hard.  He reports not being able to get up right away and being taken out of the field to a medical camp for a period of time, where he was treated for pain and then sent back to the field.  The Veteran also reports an incident when he was being chased by enemy soldiers and he fell in the water, hurting his hip again.

Moreover, the Board notes that the Veteran received wounds during service.  In fact, as the RO noted in its June 1968 rating decision, "Veteran received Purple Heart and undoubtedly received multiple gunshot wounds or grenade wounds in a fire fight and was treateat a field hospital, according to his statement.  Current exam shows no definite evidence of disability, however." (emphasis added).  In the coding on the rating decision, the RO noted "MULTIPLE GUNSHOT WOUNDS, RIGHT ARM, BACK, AND LEGS."

Although there are negative VA nexus opinions, the Board assigns them little weight.  The primary problem with the May 2012 VA examination report is that the examiner did not adequately consider the Veteran's statements concerning incidents in service wherein he injured his hip, back, and knee.  Instead, her opinions-that his claimed conditions are not related to service-are based on a lack of documentation in his STRs of any injuries.  This is an insufficient rationale for a negative opinion, especially in light of the fact that the Veteran's injuries occurred during combat operations.  He alleges that he injured his back, left hip, and left knee after rappelling out of a helicopter and twisting to avoid falling on something, and landing hard on his left side.  He alleges he reinjured his left hip falling in a creek while running away from enemy soldiers.  See Hearing transcript, pages 4-6.  These allegations fall squarely within the "combat presumption," contained at 38 C.F.R. � 3.304(d), which the Veteran has argued.  As these injuries conform to the circumstances, conditions, and hardships of such service, the Board finds he has established that they occurred while in service.

Another problem with the May 2012 VA examination report is the opinion pertaining to his lumbar spine.  The examiner opined that he entered service with back spasms, as mentioned on the April 1965 Report of Medical History, due to a car accident, which was the more likely cause of his current disability.  She did not make the correct findings pertaining to a pre-existing condition, as the Veteran has also correctly argued.  See 38 C.F.R. � 3.304(b).  Specifically, she did not point to the clear and unmistakable evidence leading her to conclude that he entered service with a lumbar spine disability, nor to the evidence the led her to conclude that his lumbar spine was not aggravated during service.

The Veteran served in combat and his contentions are consistent with the circumstances, conditions and hardships of that service.  38 U.S.C.A. � 1154(b).  As such, VA must presume the occurrence of the in-service injuries.  In addition, the medical evidence shows that the Veteran has been diagnosed with various orthopedic disabilities and he reports the onset of the conditions (manifested by pain) during combat service in Vietnam.  Further, the Board finds that he is both competent to report this pain during and since serving in combat in Vietnam and that his account of having pain since that time is credible.  Thus, the Board finds that the evidence is not sufficient to rebut the presumption that his orthopedic disabilities became manifest during his combat service.  See Reeves.  In light of his in-service experiences, the credible history of pain in and since service, and the current diagnoses, the Board finds that service connection for all of the claimed disabilities is warranted because the disabilities had their onset in service.

ORDER

Service connection for a left hip disability is granted.

Service connection for status post L4-L5 laminectomy is granted.

Service connection for a left knee disability is granted.

Service connection for left foot drop is granted.

____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: DAVID L WIGHT

condition: radiculopathy

text:
Citation Nr: 1520000
Decision Date: 05/08/15    Archive Date: 05/19/15

DOCKET NO.  10-44 183	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUES

1.  Entitlement to an increased disability rating for peripheral neuropathy of the right lower extremity, currently rated as 20 percent disabling.

2.  Entitlement to an increased disability rating for peripheral neuropathy of the left lower extremity, currently rated as 20 percent disabling.

REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

E.I. Velez, Counsel

INTRODUCTION

The Veteran had active service from September 1965 to December 1969.  He is the recipient of the Combat Action Ribbon and Purple Heart Medal.

This matter comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  Jurisdiction has since been transferred to the St. Petersburg, Florida RO.

In December 2011, the Veteran testified before the undersigned Veterans Law Judge via video conference.  A transcript of the hearing is associated with the claims file.  The claim was previously remanded by the Board in March 2013 and July 2014.

This appeal was processed using the Veterans Benefits Management System (VBMS) processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

FINDING OF FACT

Throughout the entire period on appeal, the Veteran's left and right lower extremity peripheral neuropathy has been manifested by no more than moderate incomplete paralysis of the sciatic nerve.

CONCLUSIONS OF LAW

1.  The criteria for a disability rating higher than 20 percent for service-connected peripheral neuropathy affecting the left lower extremity have not been met.  38 U.S.C.A. � 1155 (West 2002); 38 C.F.R. �� 4.25, 4.26, 4.124a, Diagnostic Code 8521 (2014).

2.  The criteria for a disability rating higher than 20 percent for service-connected peripheral neuropathy affecting the right lower extremity have not been met.  38 U.S.C.A. � 1155 (West 2002); 38 C.F.R. �� 4.25, 4.26, 4.124a, Diagnostic Code 8521 (2014).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5103, 5103A; 38 C.F.R. �� 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  None is found by the Board.  Indeed, VA's duty to notify has been satisfied.  The Veteran was notified via letter dated in August 2009 of the criteria for establishing an increased disability rating, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. The letter was sent to the Veteran prior to the RO's December 2009 decision that is the basis for this appeal.  Therefore the Board finds that no prejudice to the Veteran will result from proceeding with adjudication without additional notice or process.  Furthermore, as discussed below, it appears that VA has obtained all relevant evidence.  Id.

The RO also provided assistance to the Veteran as required under 38 U.S.C.A. � 5103A and 38 C.F.R. � 3.159(c), as indicated under the facts and circumstances in this case.  It appears that all known and available VA outpatient and private treatment records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims file.  The Veteran has been afforded multiple VA examinations in association with his peripheral neuropathy claim.

Most recently, in July 2014, the Board remanded this claim.  The Board directed that the Veteran be afforded a VA examination to ascertain current level of severity of the Veteran's symptoms.  The requested examination was performed in July 2014.  The Board finds that there has been substantial compliance with its remand.  See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).

Also, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the December 2011 Board hearing, the VLJ fully explained the issues on appeal, and asked questions focused on the nature and symptomatology of the disability in question, specifically as to the nature and severity of the peripheral nerve involvement of the bilateral lower extremities.  The Veteran was represented at the hearing by an accredited representative of the Disabled American Veterans.  In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked, or was outstanding, that might substantiate the claim; the Veteran did not identify any such evidence.  The Board notes that neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. � 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. � 3.103(c)(2) , and that any error in notice provided during the Veteran's hearing constitutes harmless error.

The Board finds that all necessary development has been accomplished and therefore appellate review of the claim addressed above may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Legal Criteria and Analysis

The Veteran has claimed entitlement to an increased rating for his service-connected peripheral neuropathy of the bilateral extremities, rated as 20 percent disabling.

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected condition adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set in the Schedule for Rating Disabilities.  38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.  Separate diagnostic codes identify various disabilities and the criteria for specific ranges.

The Veteran's disability has been rated by the applicable diagnostic code provisions providing the rating criteria for disabilities of the sciatic nerve.  38 C.F.R. � 4.124a, Diagnostic Code (DC) 8520.

In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered.  In initial ratings cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999).  The RO has assigned a uniform rating.  The Board finds that the disability picture has not significantly changed during the appeal period and a uniform rating is warranted.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. � 4.7 (2014).

The assignment of a particular diagnostic code is dependent on the facts of a particular case.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

At the outset, the Board notes that the May 2013 VA examiner was the first medical professional of record to make specific findings regarding all of the nerves of the lower extremities.  He found that the sciatic (DC 8520), external popliteal (common peroneal) (DC 8521), musculocutaneous (superficial peroneal) (8522), anterior tibial (deep peroneal) (DC 8523), internal popliteal (tibial) (DC 8524), posterior tibial (DC 8525), anterior crural (femoral) (DC 8526), internal saphenous (DC 8527), obturator (DC 8528), external cutaneous (DC 8529), ilio-ingual (DC 8530) nerves were all affected.

The Board has considered whether separate ratings would be appropriate in this case.  Although different nerves have been noted to be affected, the symptomatology associated with the bilateral lower extremities appears to be impossible to separate between the nerves affected.  In essence, those nerves are effectively one disability.  There is no indication in the medical records that the different nerves call for separate methods of treatment or otherwise should be separately rated.  Separate ratings under each of the potentially applicable diagnostic codes (DCs 8520-8530) would entail compensating the Veteran twice for the same symptoms.  See 38 C.F.R. � 4.14.  Under the anti-pyramiding provision of 38 C.F.R. � 4.14, the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided.  The Court held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether the appellant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions.  Therefore, the Board will rate the Veteran under Diagnostic Code 8520 for sciatic nerve, as of the majority of the affected nerves, that diagnostic code allows for the highest possible rating of 80 percent in general.

Under Diagnostic Code 8520, a 10 percent evaluation is assigned for mild incomplete paralysis of the sciatic nerve, while a 20 percent evaluation is assigned for moderate incomplete paralysis of the sciatic nerve.  A 40 percent evaluation is assigned for moderately severe incomplete paralysis of the sciatic nerve, while a 60 percent evaluation is assigned for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy.  An 80 percent evaluation, the highest schedular evaluation available, is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.  38 C.F.R. � 4.124a, Diagnostic Code 8520.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to a varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree.  The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor.  Moreover, the rating schedule provides that neuralgias characterized by dull and intermittent pain of a typical distribution so as to identify the nerve, are to be rated on the same scale with a maximum equal to moderate incomplete paralysis.  38 C.F.R. � 4.124.

Words such as "mild," "moderate," and "severe" are not defined in VA's Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. � 4.6.

A June 2009 letter from the Veteran's private physician, Dr. R. R., states that the Veteran has had a progressive history of pain and problems with general walking with constant symptoms.  After extensive workup, it was determined that he has peripheral neuropathy with axonal features involving sensory greater than motor.  He responds well to medication.  The progression of symptoms has led to lack of responses in his sensory nerves with significant allowing in some of his motor nerves and signs of axonal loss.

At a VA examination of September 2009 the Veteran reported numbness and shooting pain in the feet which affects the plantar and dorsal surface of the feet as well as the toes.  He further reported the symptoms are going up into both calves towards the knees.  He endorsed weakness of the legs.  He reported tightness of the muscles in the claves which travels to the buttocks bilaterally.  He also reported difficulty in sitting or standing for long periods of time.  The examiner noted a normal gait and coordination.  Vibratory sensation and pinprick were decreased in both lower extremities from the feet to the left knee and all the way up to the right knee.  Motor nerves were 5/5 and there was good capillary refill.  Pedal and right dorsalis pulses are decreased.  Deep tendon reflexes are 2+ except for absent ankle jerk bilaterally.

A January 2010 letter form Dr. R.R., notes that the Veteran now experienced some denervation of the muscles which has led to an increase in instability and dysfunctional gait.  He has loss of reflexes in his Achilles tendons, and loss of pinprick and sensation with pin and light touch.

At a May 2013 VA examination the Veteran reported severe pain for both extremities as well as severe numbness.  Physical examination showed decreased muscle strength of 4/5 on the bilateral ankles, and muscle atrophy of the bilateral calves.  Deep tendon reflexes were normal at the knees and absent at the bilateral ankles.  Sensation of light touch was decreased in the bilateral thighs and knees, and absent for the bilateral lower legs, ankles, feet and toes.  There were trophic changes to the skin on both lower extremities, notably shiny skin and loss of hair.  Gait was abnormal.  As previously noted, the nerves along the entire bilateral lower extremities were all found to have some degree of affected disability, at worst moderate incomplete paralysis.  The sciatic nerves were found to have incomplete paralysis of a moderate severity.  The Veteran requires the occasional use of a wheelchair and the constant support of a cane.  There were no EMG studies performed.  The examiner opined that your condition is "mainly sensory with mild motor involvement."

Private treatment records of April 2012 notes a diagnosis of significant vascular disease.  In August 2012 severe vascular disease was noted.  In February 2013 an assessment of severe peripheral arterial disease was noted.

At a July 2014 VA examination the Veteran reported numbness from the knees to the toes.  He also endorsed pain which varies but which is typically a constant ache that has intermittent sharp and shearing pains.  He reported feeling unstable and having fallen numerous times, the most recent two weeks ago.  He uses a cane regularly to ambulate short distances, and a wheelchair always to ambulate long distances.  Muscle strength was 5/5 in knee extension and, 4/5 in ankle plantar flexion and dorsiflexion.  Deep tendon reflexes were 2+ in the knees and ankles.  Sensory exam was absent in the lower legs/ankles and foot/toes.   There were trophic changes in the form of smooth shiny skin with no hair in the bilateral extremities form the thighs down.  Gait was unsteady and slow.  The sciatic, posterior tibial, internal popliteal (tibial), anterior tibial (deep peroneal), musculocutaneous (superficial peroneal), external popliteal (common peroneal), and internal saphenous nerves were all noted to be affected with at worst having incomplete paralysis of a moderate degree.

In light of the evidence, the Board finds that although there has been some variation in the signs and symptoms of the Veteran's peripheral neuropathy in his lower extremities, his symptomatology has more closely approximated the criteria reflected by a 20 percent disability rating throughout the entire period under appeal.  Accordingly, the Board finds that a disability rating in excess of 20 percent is not warranted.

In this regard, the Board finds that the radiculopathy in the left and right lower extremities more closely approximate to moderate, incomplete paralysis of the sciatic nerve throughout the entire period under appeal.  The Veteran has consistently complained of pain and numbness in his feet, with pain up his leg.  He has also consistently reported that he has difficulties with prolonged walking and standing, uses a cane for short distances and a wheelchair for long distances, because of the severity of his symptomatology in his feet.  The medical evidence of record also demonstrates that the Veteran's disabilities have been manifested by decreased sensation, reflexes, and pulses, but without findings of muscle atrophy, only slight muscle weakness, no peripheral edema, and no foot drops.  Moreover, the Veteran's symptomatology in his lower extremities has been characterized as no more than moderate incomplete paralysis by all of the VA examiners.  As such, the criteria for a higher 40 percent rating under Diagnostic Code 8520 have not been met.  See 38 C.F.R. � 4.7.

The Board acknowledges that in April 2012 and February 2013, the Veteran's private physician characterized the Veteran's peripheral artery and vascular disease as severe.  Nevertheless, the question before the Board is the severity of the Veteran's service connected neuropathy not his nonservice-connected peripheral artery and/or vascular disease.  The weight of the evidence shows that the Veteran's peripheral neuropathy, is no more than moderate in severity.  In this regard, the VA examinations of June 2013 and July 2014 both note no more than incomplete paralysis of a moderate degree.

The Board acknowledges the Veteran's competency to report his symptoms, and has considered his statements and the lay statements in reaching its decision.  However, even accepting the Veteran's reports and conceding his allegations that his symptoms are sometimes severely disabling, the competent medical evidence shows no more than moderate neurological impairment.  Significantly, no paralysis has been shown at any point during the appeal period.

The Board has also considered whether an extraschedular rating under the provisions of 38 C.F.R. � 3.321(b)(1) is warranted.  That provision provides that in exceptional circumstances, where the schedular evaluations are found to be inadequate, the Veteran may be awarded a rating higher than that encompassed by the schedular criteria, as demonstrated by evidence showing that the disability at issue causes marked interference with employment, or has in the past or continues to require frequent periods of hospitalization rendering impractical the use of the regular schedular standards.  According to 38 C.F.R. � 4.1, "generally, the degrees of disability specified are  considered adequate to compensate for considerable loss of  working time from exacerbations or illness proportionate to the severity of the several grades of disability."

The Veteran has not presented any evidence that the service- connected disability at issue have resulted in a unique disability that is not addressed by the rating criteria for neurologic impairments.  As his symptomatology is contemplated by the rating schedules, referral for extraschedular consideration is not appropriate here.  See Thun v. Peake, 22 Vet. App 111, 115-16 (2011).

Finally, the Board notes that in adjudicating the Veteran's claims for increased ratings, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the appellant or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In this case, however, the Veteran has not asserted at any point that his peripheral neuropathy of the bilateral lower extremities renders him unemployable.  Rather, the record reflects that he voluntarily retired in 2009.  Therefore, the issue of entitlement to TDIU has not been raised.

ORDER

Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity is denied.

Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity is denied.

____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: J W FRANCIS

condition: skin

text:
Citation Nr: 1521000
Decision Date: 05/15/15    Archive Date: 05/26/15

DOCKET NO.  07-03 701	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia

THE ISSUES

1.  Entitlement to service connection for a multiple joint disability as secondary to service-connected dermatitis.

2.  Entitlement to service connection for a left eye disability, to include as secondary to service-connected generalized anxiety disorder and aniscoria and opacities of the right cornea.

3.  Entitlement to service connection for a right eye disability, other than aniscoria and opacities of the right cornea, to include as secondary to service-connected generalized anxiety disorder and aniscoria and opacities of the right cornea.

4.  Entitlement to service connection for residuals of a stroke.

5.  Entitlement to an increased rating for aniscoria and opacities of the right cornea, currently rated 10 percent disabling.

6.  Entitlement to special monthly compensation (SMC) at the housebound rate.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

April Maddox, Counsel

INTRODUCTION

The Veteran served on active duty from November 1945 to October 1946 and from November 1948 to October 1949.

These matters initially came before the Board of Veterans' Appeals (Board) from a September 2006 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  In that decision, the RO denied entitlement to service connection for stiffness in the joints, arms, and neck, central retinal vein occlusion of the left eye, and branch retinal vein occlusion of the right eye, denied entitlement to an increased rating in excess of 10 percent for aniscoria and opacities of the right cornea, and denied entitlement to SMC at the housebound rate.

The matter also comes before the Board from a December 2008 rating decision of the RO that denied service connection for a stroke.

In October 2009, the Board granted the Veteran's motion to advance this appeal on its docket pursuant to 38 C.F.R. � 20.900(c).  38 U.S.C.A. � 7107(a)(2) (West 2014).

The Veteran testified before the undersigned at a March 2010 hearing in Washington, DC.  A transcript of that hearing has been associated with his claims file.

In June 2010, the Board denied the Veteran's claim for a higher rating for his service-connected dermatitis and also denied the Veteran's claim for service connection for a multiple joint disability.  The remaining matters were remanded for further development.  The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court).

In November 2010, the Court vacated the Board's decision pertaining to the multiple joint disability and remanded this issue for readjudication in compliance with directives specified in a November 2010 Joint Motion filed by counsel for the Veteran and the VA Secretary.

The Joint Motion specified that the Veteran had abandoned the claim for service connection for a multiple joint disability on a direct basis, and the parties only sought remand as to the portion of the Board's decision that denied entitlement to service connection for that disability on a secondary basis.

In March 2011, the Board remanded the case for compliance with the Joint Motion and for the RO to issue a statement of the case on the issue of service connection for a stroke which was issued in July 2011.  The Veteran perfected an appeal in August 2011.

In March 2015, the Veteran was afforded a second Board hearing before the undersigned.  This is because the Veteran requested a Board hearing in an August 2011 substantive appeal of the issue of entitlement to service connection for a stroke.  A transcript of the March 2015 hearing has been associated with his claims file.

Notably, during the March 2015 Board hearing, the Veteran submitted additional medical evidence, including a CD containing images of an August 2013 magnetic resonance image (MRI) of the brain along with a paper "Final Report" noting the findings of the MRI study, an August 2006 VA operative report, and June 2014 VA treatment records.  Accompanying this evidence was a waiver of RO review.

The Board notes that, in addition to the paper claims file, the Veteran has separate paperless, electronic files:  a Virtual VA file and a Veterans Benefits Management System (VBMS) file.  A review of the documents in VBMS reveals VA treatment records dated through June 2014, a December 2014 Appellate Brief, and a transcript of the March 2015 Board hearing.  The remaining documents in both Virtual VA and VBMS are either duplicative or irrelevant to the issues on appeal.

The issues of entitlement to service connection for a left eye disability, a right eye disability (other than aniscoria and opacities of the right cornea), and residuals of a stroke; entitlement to an increased rating for aniscoria and opacities of the right cornea; and entitlement to SMC at the housebound rate are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDING OF FACT

Competent medical evidence shows that degenerative joint disease of the elbows, hands, hips, knees, shoulders, and neck is not caused or aggravated by the Veteran's service-connected dermatitis.

CONCLUSION OF LAW

The criteria for service connection for a multiple joint disability, as secondary to service-connected dermatitis, have not been met.  38 U.S.C.A. �� 1101, 1110, 1112, 1131, 5107 (West 2014); 38 C.F.R. �� 3.102, 3.303, 3.310 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. �� 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R �� 3.102, 3.156(a), 3.159, 3.326(a) (2014).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b)(1).

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ.  Id.; Pelegrini, 18 Vet. App. at 112.   See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

Relevant to the service connection claim decided herein, the Board finds that VA has satisfied its duty to notify under the VCAA.  Specifically, a November 2005 letter sent prior to the initial unfavorable decision issued in September 2006 advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information.  The letter also informed the Veteran of the evidence and information necessary to substantiate his claim for service connection on a secondary basis (i.e., as secondary to his service-connected dermatitis).  The Veteran was not provided with the Dingess elements of VCAA notice.  However, given the denial of the claim, any questions as to a disability rating or effective date are moot.

Relevant to the duty to assist, the Veteran's available service treatment and personnel records as well as post-service VA treatment records have been obtained and considered.  Notably, records from the Social Security Administration were obtained in March 2009.  The Veteran has not identified any other additional, outstanding records that have not been requested or obtained.

The Veteran was afforded a VA examination in March 2014 in conjunction with the service connection claim on appeal.  Neither the Veteran nor his representative has alleged that the examination pertaining to the claimed multiple joint disabilities is inadequate for adjudication purposes.  The Board finds that the March 2014 VA examination and accompanying opinion is adequate to decide this issue as it is predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and a physical examination.  The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed.  Moreover, the examiner offered a clear conclusion with supporting data as well as reasoned medical explanations connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); 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").  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the multiple joint disability issue decided herein has been met.

The Veteran was also offered testimony before the undersigned Acting Veterans Law Judge at Board hearings in March 2010 and March 2015.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. � 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.

Here, during the March 2010 and March 2015 hearings, the undersigned noted the issue adjudicated below.  Also, information was solicited regarding the nature and etiology of his multiple joint disabilities.  In this regard, the Veteran's contentions regarding direct and secondary service connection were discussed.  Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained.  See Bryant, 23 Vet. App. at 497.  Moreover, the hearing discussions did not reveal any outstanding evidence relevant to the claim.  Significantly, while the Veteran was not informed during the March 2010 hearing that he should obtain and submit a written opinion from a physician that his multiple joint symptoms were related to his service-connected dermatitis, correspondence was sent by the RO at the Board's direction to the Veteran in August 2011 informing him of this opportunity, and the case was readjudicated in a September 2014 supplemental statement of the case.  Furthermore, the Veteran was informed during the March 2015 hearing that he should obtain and submit a written opinion from a physician that his multiple joint symptoms were related to his service-connected dermatitis.  Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim.  As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. � 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record.

As above, in March 2011, the Board remanded the case for additional development.  Specifically, the Board remanded the case multiple joint disability issue to provide the Veteran with a letter telling him that in order to substantiate his claim for service connection for a multiple joint disability, he should obtain and submit to VA a written medical opinion from a qualified medical professional that he has a current multiple joint disability that was either caused or aggravated (made worse) by his service-connected dermatitis (which was accomplished by letter dated in August 2011), to schedule the Veteran for a VA examination to determine the etiology of the Veteran's claimed multiple joint disability (which was accomplished by VA examination in March 2014), and to readjudicate the claim (which was accomplished in a September 2014 supplemental statement of the case).

Therefore, the Board finds that the AOJ has substantially complied with the March 2011 remand directives such that no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim.

II. Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303(a).  Service connection may also be granted for any disease 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).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

As noted above, the Board previously denied service connection for "stiffness of the joints" in a June 2010 decision, both on a direct and secondary basis.  The November 2010 Joint Motion specified that the Veteran had abandoned the claim for service connection for a multiple joint disability on a direct basis, and the parties only sought remand as to the portion of the Board's decision that denied entitlement to service connection for that disability on a secondary basis.  As such, the Board will only address secondary service connection.

Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R.
� 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc).

The Board notes that the provisions of 38 C.F.R. � 3.310 were amended effective October 10, 2006. The new provisions state that service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R.
� 3.310(b).  Although the stated intent of the change was merely to implement the requirements of Allen, supra, the Board finds that the new provisions amount to a substantive change to the manner in which 38 C.F.R. � 3.310 has been applied by VA in Allen-type cases since 1995.  Consequently, for the Veteran's claims that were filed prior to October 10, 2006, the Board will apply the older version of 38 C.F.R. � 3.310, which is more favorable to the Veteran as it does not require the establishment of a baseline level of disability before an award of service connection may granted.  See generally, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003.

Lay evidence may, in some circumstances, establish a medical diagnosis, causation or etiology, i.e., when a layperson (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) describes symptoms at the time which supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009) (overruling broad holdings in Buchanan v. Nicholson, 451 F.3d 1331 (Fed.Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007) that competent medical evidence is required when the determinative issue is either medical etiology or medical diagnosis).  Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. � 5107; 38 C.F.R. � 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In numerous written statements submitted in support of his claim and in March 2010 testimony before the Board, the Veteran asserted that he experienced stiffness of multiple joints (specifically, the back, arms, and legs), which he believed is related to his service-connected skin disorder.  He acknowledged at his March 2010 hearing that no treating clinician or VA examiner had ever related his joint stiffness to his skin disorder.  However, he believed that the joint stiffness was related to his skin disorder because he did not experience stiffness of the joints until after he developed his skin disorder.  He described his joint stiffness as being associated with tightness of his skin.

The Veteran's active service treatment records do not demonstrate any complaints or findings of joint stiffness.  While abnormalities of the skin were noted on examination in October 1946, no musculoskeletal defects were found.  Post-service clinical records show that VA examination in March 1953 revealed no musculoskeletal abnormalities.  In March 1956, the Veteran complained of pain and generalized weakness in his right forearm, as a result of which he was diagnosed with myositis of the extensor carpi radialis longus.  Physical examination revealed no neurological abnormalities.  He was prescribed local heat and mild analgesics which resulted in considerable improvement.  In May 1966, the Veteran underwent intralaminar bilateral excision of a herniated nucleus pulposus (HNP) at L4-L5.  He was diagnosed with L5-S1 radiculopathy secondary to the HNP.  Subsequent records show continued treatment for radiculopathy.

In February 1988, the Veteran was diagnosed with degenerative joint disease of the lumbar spine, status post lumbar laminectomy.  He was diagnosed with arthritis of the right shoulder in January 1990.  In May 2005, he was diagnosed with degenerative joint disease of the knee, for which he was issued a cane for assistance with ambulation.  In June 2006, the Veteran complained of muscle spasms and weakness in his upper extremities.  He was instructed to apply heat or cold and do gentle stretching exercises.  A June 2006 X-ray of the cervical spine revealed severe degenerative disc disease at C3-C4, C5-C6, and C6-C7 and multilevel facet degenerative joint disease, which could be responsible for the Veteran's complaints of spasms and weakness in the upper extremities.

Post-service clinical records show that the Veteran has received regular dermatological care since his separation from service.  At no time has any treating clinician or VA examiner related his complaints of joint stiffness to either his active service or to his service-connected skin disorder, including by way of aggravation.

Pursuant to the March 2011 Board remand, the Veteran was afforded a VA examination pertaining to his joints in March 2014.  During this examination, the examiner noted that the Veteran had diagnoses of degenerative joint disease of the elbows, hands, hips, knees, shoulders, and neck beginning in approximately 2000.  Upon review of the claims file, the examiner wrote that these disorders were less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected skin condition.  The rationale for this opinion was that there was no plausible medical mechanism that degenerative joint disease was due to eczema as, the most likely etiology of his degenerative joint disease was aging.  Significantly, it was noted that the Veteran did not have degenerative joint disease while in the service and that he was currently 94 years old.

Given the above, the Board finds that service connection for a multiple joint disability as secondary to the Veteran's service-connected dermatitis is not warranted.  In this regard, the March 2014 VA examiner addressed the Veteran's belief that his multiple joint disabilities were somehow related to his service-connected dermatitis but found that, in there was no plausible medical mechanism that degenerative joint disease was due to eczema as, the most likely etiology of his degenerative joint disease was aging.  Significantly, it was noted that the Veteran was currently 94 years old.  Although the examiner did not explicitly use the term "aggravation," by finding that there was no plausible mechanism for a relationship, the examiner addressed both causation and aggravation.  As the VA examiner offered a clear conclusion with supporting data as well as reasoned medical explanations connecting the two, the Board accords great probative weight to his opinion.  Id.

While the Veteran contends that his multiple joint disabilities are secondary to his service-connected dermatitis, the Board accords his statements regarding the etiology of these disorders little probative value as he is not competent to opine on such complex medical questions.  Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue.  See Jones v. West, 12 Vet. App. 460, 465 (1999).  In this regard, the question of causation and aggravation of multiple joint disabilities involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship.  As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence.  See Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).

Furthermore, while the Veteran testified during the March 2015 Board hearing that his multiple joint disabilities was secondary to a service-connected back disorder, the Board notes that the Veteran is not currently service connected for a back disorder.  Rather, he is receipt of a 60 percent rating for pension purposes for post-operative residuals of laminectomy for L-S disc with bilateral lumbar-sacral radiculopathy.

Therefore, based on the foregoing, the Board finds that service connection for multiple joint disabilities is not warranted on a secondary basis.  In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection multiple joint disabilities.  As such, that doctrine is not applicable in the instant appeal, and his claim must be denied.  38 U.S.C.A. � 5107; 38 C.F.R. � 3.102; Gilbert, supra.

	ORDER

Service connection for multiple joint disabilities as secondary to service-connected dermatitis is denied.

REMAND

Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  38 U.S.C.A. � 5103A (West 2002); 38 C.F.R. � 3.159 (2013).  In addition, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  In this regard, for the below reasons, the Board finds that the March 2011 remand directives regarding the etiological opinions pertaining to the claimed eye disabilities have not been fully complied with and, therefore, a remand is necessary to obtain addendum opinions.

With regard to the issues of entitlement to service connection for left and right eye disabilities other than aniscoria and opacities of the right cornea, the Board previously remanded these issues for a VA examination and opinion in March 2011 to determine whether these disabilities "were either caused or aggravated (made worse) by his service-connected aniscoria and opacities of the right cornea or generalized anxiety disorder."  The Board also requested that the examiner "identify those diagnosed eye conditions that are refractive errors as opposed to acquired eye disabilities. "  Pursuant to the March 2011 remand, the Veteran was afforded a VA examination in March 2014.

Significantly, the March 2014 VA examiner opined that it was less likely as not (less than 50 percent probability) that any of the Veteran's currently diagnosed eye disabilities, other than aniscoria and opacities of the right cornea, had their onset in service, are related to the Veteran's in-service eye symptoms, or are otherwise the result of a disease or injury in service.  The rationale for this opinion was that the Veteran's currently diagnosed eye disabilities included mixed mechanism glaucoma, branch retinal vein occlusion and central retinal vein occlusion.  Glaucoma is a disease associated with increased intraocular pressure in which damage to the optic nerve leads to vision loss.  The exact mechanism is unknown; however nothing in the Veteran's history would predict the development of glaucoma as a result of in-service symptoms, disease or injury.  Branch retinal vein occlusion and central retinal vein occlusion are the result of atherosclerosis.  This is not the result of a disease or injury in service.

The examiner also opined that the Veteran's additional eye disabilities were less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected right eye disorder.  The rationale for this opinion was that the Veteran's currently diagnosed eye disabilities of glaucoma, branch retinal vein occlusion, and central retinal vein occlusion were not caused or aggravated (made worse) by his aniscoria and opacities of the cornea.  The current disabilities were not related to his service-connected condition.

Unfortunately, the March 2014 VA examiner failed to provide an opinion as to whether any eye disability, other than aniscoria and opacities of the right cornea, was either caused or aggravated (made worse) by the Veteran's service-connected generalized anxiety disorder.  Furthermore, the "rationale" provided by the March 2014 VA examiner that the Veteran's currently diagnosed eye disabilities of glaucoma, branch retinal vein occlusion, and central retinal vein occlusion were not caused or aggravated (made worse) by his aniscoria and opacities of the right cornea does not appear to be a "rationale" at all, only a restatement of the negative opinion.  Moreover, the March 2014 examiner also failed to "identify those diagnosed eye conditions that are refractive errors as opposed to acquired eye disabilities" as was requested in the March 2011 remand.  As such, an addendum opinion is required on remand.

With regard to the issue of entitlement to service connection for residuals of a stroke, in a September 2009 Appellant Brief, the Veteran's representative wrote that VA has not considered the effect of the Veteran's service-connected psychiatric condition on his CVDs (cerebro-vascular disease), which includes strokes.  The Veteran's representative noted that psychiatric problems are associated with the incurrence or recurrence of CVDs.  Cecil Textbook of Medicine (22d Edition, 2004).  Also, during the March 2015 Board hearing, the Veteran testified that, after his stroke, he began experiencing decreased vision bilaterally.  He also testified that his stroke was caused by a blood clot behind his eye.  If this is true, it appears that the Veteran's service-connected right eye disorder may be associated with the Veteran's stroke.  Notably, no medical opinion has been obtained regarding the Veteran's claim for service connection for residuals of a stroke.  Given the medical evidence cited by the Veteran's representative, a medical examination and opinion are required on remand.

Furthermore, in the March 2011 Board remand, it was requested that additional treatment records be obtained, specifically "all records of the Veteran's treatment for eye disabilities and a stroke from VAMC Washington from August 2005 to the present, from VAMC Brooklyn, VAMC Manhattan, and VAMC St. Albans, and from any other VA facility sufficiently identified by the Veteran."  Throughout this appeal, the Veteran has claimed that his only medical treatment is through VA.  Pursuant to the March 2011 Board remand, records from VAMC Brooklyn, VAMC Manhattan, and VAMC St. Albans were requested but January and October 2012 memorandums show that these records are unavailable.  A review of the claims file includes a significant amount of VA treatment records dated through October 2008.  However, there is only one VA treatment record dated after October 2008, specifically a June 2014 which is contained in the VBMS file.  Given the need to remand for other reasons, an attempt should be made to obtain any outstanding VA treatment records dated since October 2008.

Moreover, the Board finds that the claim for an increased rating for aniscoria and opacities of the right cornea and the claim for SMC by reason of being housebound are inextricably intertwined with the Veteran's pending claims for service connection, as the resolution of these claims might have bearing upon the claims for an increased rating and/or SMC.  The appropriate remedy where a pending claim is inextricably intertwined with claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim.  Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c).  Expedited handling is requested.)

1. Obtain and associate with the claims file all records of the Veteran's treatment for eye disabilities and claims residuals of a stroke from October 2008 to the present.

All efforts to obtain these records must be documented in the claims file.  If any of these records are unavailable, this should also be noted in the claims file.

2. Return the claims file to the VA examiner who conducted the Veteran's March 2014 eye examination.  The claims file and a copy of this Remand must be made available to the examiner.  The examiner shall note in the examination report that the claims file and the Remand have been reviewed.  If the March 2014 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion.  The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion.

Following a review of the record, the examiner is requested to offer an opinion as to whether it is at least as likely as not that the Veteran's currently diagnosed eye disabilities of glaucoma, branch retinal vein occlusion, and central retinal vein occlusion are caused or aggravated by his service-connected aniscoria and opacities of the right cornea and/or generalized anxiety disorder.  The amount of any aggravation should be quantified, if possible.

The examiner should also identify those diagnosed eye conditions that are refractive errors as opposed to acquired eye disabilities.

The examiner is directed to the September 2009 Appellant Brief wherein the Veteran's representative noted that psychiatric problems are associated with the incurrence or recurrence of CVDs.  Cecil Textbook of Medicine (22d Edition, 2004).

The examiner is notified that, while he previously provided an adequate opinion regarding whether the Veteran's currently diagnosed eye disabilities of glaucoma, branch retinal vein occlusion, and central retinal vein occlusion are directly related to service, he failed to opine whether these disorders are caused or aggravated by his service-connected generalized anxiety disorder and failed to provide a rationale regarding the opinion that the Veteran's currently diagnosed eye disabilities of glaucoma, branch retinal vein occlusion, and central retinal vein occlusion were not caused or aggravated (made worse) by his aniscoria and opacities of the right cornea.

The examiner must provide a rationale for each opinion.  If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.

3. After any additional VA treatment records are obtained and associated with the Veteran's claims file, schedule him for an appropriate VA examination to determine whether the Veteran suffers any residuals from a stroke in October 2005 (such as decreased vision as contended by the Veteran during the March 2015 Board hearing).  All indicated tests and studies should be conducted.

The claims file, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum.

The examiner should also opine as to whether it is at least as likely as not (50 percent probability or more) that any of the Veteran's currently diagnosed residuals of a stroke, were either caused or aggravated (made worse) by his service-connected aniscoria and opacities of the right cornea or generalized anxiety disorder.  The amount of any aggravation should be quantified, if possible.

The examiner must provide a rationale for each opinion.  If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports, including those of in-service eye symptoms and a continuity of symptomatology, must be acknowledged and considered in formulating any opinions.

If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so.

4. The AOJ should review the examination reports to ensure that they contain the information and opinions requested in this remand and are otherwise complete.

5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence.  If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the r matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West 2014).

______________________________________________
J.W. FRANCIS
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs