Citation Nr: 0001871 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 96-22 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for vertigo. 3. Entitlement to service connection for shoulder and arm pain. 4. Entitlement to service connection for vision loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael F. Bradican, Associate Counsel INTRODUCTION The veteran served on active duty from October 1951 to October 1953. This case arises before the Board of Veterans' Appeals (Board) on appeal from a rating decision of February 1994, from the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran's claims for service connection for headaches, vertigo, arm and shoulder pain and new and material evidence to reopen a claim for service connection for vision loss were denied in a Board decision dated in May 1998. On appeal the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision and remanded the case to the Board for further translation of Spanish language documents in the file. Translation of the documents noted by the court has been accomplished and the claim is once more properly before the Board. The Court also noted that the Board's determination that the veteran did not present new and material evidence relied squarely on the Colvin test which has since been invalidated by the Federal Circuit. The Board was instructed to review the claim for further adjudication in accordance with Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Upon review the Board notes that the RO initially denied service connection for eye trouble in a rating decision dated November 21, 1956. The notice provided the veteran stated that if he had substantial reason to believe that the decision was not in accordance with the law and facts in his case, he could appeal within one year. The veteran indicated his disagreement with the rating decision in a notice received on November 7, 1957. The veteran was provided with a VAF-9 on November 20, 1957. On the reverse of this VAF-9 it was indicated that applications for review on appeal should be filed within one year, but that if application for review on appeal is entered within the time limit specified, a reasonable time thereafter will be allowed for the perfection of the appeal. He returned this form on November 25, 1957. He was notified in May 1958 that his appeal was not valid because it was received after one year had passed. The Board finds that the veteran's disagreement with the November 1956 rating decision served as notice that he was applying for review on appeal. The VAF-9 which was sent to him was for the purpose of perfecting his appeal. He therefore should have been permitted a reasonable time to submit it. He submitted this form five days after it was sent to him. The Board concludes that his appeal was improperly dismissed in May 1958. Therefore, the issue is not whether new and material evidence has been presented for this claim, but rather one of original service connection. Upon review of the file it appears that the RO did, in fact, review all the evidence of record, not just that presented after the November 1956 rating decision. Therefore the veteran has not been prejudiced. The Board will also, therefore, review all the evidence of record and consider the issue to be entitlement to service connection for decreased visual acuity. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. It has not been shown that the veteran has headaches which are attributable to his active military service. 3. It has not been shown that the veteran has vertigo which is attributable to his active military service. 4. It has not been shown that the veteran has arm and shoulder pain which is attributable to his active military service. 5. The veteran's service medical records show complaints of blurred vision on entrance examination, with objective findings of normal vision. Separation examination showed vision mildly defective, 20/30 bilaterally. 6. VA examination in August 1995 showed an assessment of dry eyes secondary to rheumatoid arthritis, presbyopia, mild cataracts, and early age related macular degeneration. 7. No competent medical evidence or opinion has attributed the veteran's current vision disorders to his remote military service. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim for entitlement to service connection for headaches. 38 U.S.C.A. § 5107 (West 1991). 2. The veteran has not submitted evidence of a well-grounded claim for entitlement to service connection for vertigo. 38 U.S.C.A. § 5107 (West 1991). 3. The veteran has not submitted evidence of a well-grounded claim for entitlement to service connection for arm and shoulder pain. 38 U.S.C.A. § 5107 (West 1991). 4. The veteran has not submitted evidence of a well-grounded claim for entitlement to service connection for loss of visual acuity. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he was injured by an explosion while serving in Korea. He claims that this explosion caused him to lose visual acuity, develop chronic headaches and vertigo, and has also caused him chronic arm and shoulder pain. As a preliminary note the Board will address the Spanish language documents which were the first subject of the Court's remand. The first of these documents is a VAF 21- 4138 dated in April 1993. Translation has revealed that it indicates that the veteran was seeking re-evaluation for his claim for service connection for headaches, bilateral vision problems, balance, and pain in the shoulders and arms. The original of this document is followed immediately in the claims folder by a rating decision, dated in February 1994 which denied service connection for headaches, loss of balance, shoulder and arm pain, and found that no new and material evidence had been submitted to reopen the claim for a vision problem. The second document is the Spanish language version of the Standard Form 89, a medical history form used for military medical examinations. On this form it was noted that the veteran had given a history of visual disturbances and troubles of the stomach, liver, or intestines. The Board notes that the English language version of Standard Form 88, the accompanying Report of Medical Examination, is contained in the veteran's service medical records. It notes a completely normal clinical evaluation with the exception of a finding of mild defective vision bilaterally. Distant vision was assessed as 20/30, corrected to 20/20. 1. Entitlement to service connection for headaches, vertigo, and arm and shoulder pain. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). It is the responsibility of a person seeking entitlement to service connection to present a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991). Generally, a well-grounded claim is a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In order to be well grounded, a claim for service connection must be accompanied by supporting evidence that the particular disease, injury, or disability was incurred in or aggravated by active service; mere allegations are insufficient. Tirpak v. Derwinski, 2 Vet. App. 609, 610-611 (1992); Murphy, 1 Vet. App. at 81. A claim for service connection requires three elements to be well grounded. It requires competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus between the in service injury or disease and the current disability. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 504 (1995); aff'd 78 F.3d 604 (Fed. Cir. 1996) (table). The veteran contends that in 1952 he was exposed to an explosion at an ammunition supply point. He claims that he has headaches, vertigo, arm and shoulder pain, and loss of visual acuity as a result of injuries incurred during this explosion. A review of the veteran's service medical records indicates that, on his entrance examination, conducted in October 1951, he reported frequent, severe, frontal headaches and occasional dizzy spells. He also claimed that his distant vision was blurred. His service medical records contain no records of complaints, treatment, or diagnosis for headaches, vertigo, or arm and shoulder pain during his active military service. The report of his separation examination, conducted in October 1953, notes no abnormal findings regarding headaches, arm and shoulder pain, or vertigo. A Spanish language version of the Standard Form 89, a medical history form used for military medical examinations shows that the veteran gave a history of visual disturbances and troubles of the stomach, liver, or intestines. The Board notes the statements of two fellow former servicemen, dated in 1976 and 1977. These lay statements attest that the veteran was injured in an explosion during the Korean War of 60mm mortar propellant charges. The veteran has claimed that he began receiving treatment soon after service for headaches, vertigo, and arm and shoulder pain. He has submitted in excess of 100 pages of medical records dating from 1972 to 1994. None of the medical evidence of record connects his claimed headaches, vertigo, and arm and shoulder pain with his remote military service. There is no medical evidence or opinion which indicates that any of his disorders are related to his military service. The treatment records contained in the claims folder deal mostly with digestive disorders, and treatment and evaluation for rheumatoid arthritis. His arm and shoulder pain is attributed to the rheumatoid arthritis, however, there is no medical opinion which indicates that the rheumatoid arthritis is in any way connected to service. There are very few complaints regarding headaches or vertigo. There is no indication in the medical records that the veteran now has chronic headaches or vertigo. The report of a VA general medical examination, conducted in August 1995, shows no complaints of headaches or vertigo. The Board notes the veteran's testimony at his hearings, conducted in August 1994 and in October 1996. In August 1994 the veteran recalled that he reported having had headaches prior to entering service, but that they became worse after the claimed explosion. In October 1996 he testified that he did not report having frequent headaches on his entrance physical examination, and that the headaches did not start until 13-30 days after the explosion. In August 1994 the veteran claimed that his arm and shoulder pain was due to carrying heavy equipment during his military service. In October 1996, however, he claimed that his shoulder and arm pain was from the explosion, and that he received treatment for this condition while in service. The evidence from the period subsequent to discharge fails to establish a connection between the veteran's remote military service and his current complaints of headaches, vertigo, and shoulder and arm pain. The evidence shows that the veteran developed rheumatoid arthritis many years after his military service. Although the veteran complained of frequent headaches and dizziness prior to military service, there is no indication that these symptoms recurred during service, or that a headache disorder was otherwise aggravated in service. Post service medical records rarely mention these conditions, and the most recent examination noted no complaints regarding these disorders. Although lay statements attest to the veteran's injury in Korea, there is no medical evidence or opinion which attributes his current complaints to that incident. Because there is no medical evidence of a link between the complaints of in service headaches, vertigo, or shoulder and arm pain, and any current disability, the claims are not well grounded and are denied. The only evidence linking the veteran's claimed disorders to his period of service consists of his current statements. Even accepting his statements as true, he cannot meet his initial burden under 38 U.S.C.A. § 5107(a) by simply presenting his own opinion as to medical causation. Lay persons are not competent to render an opinion as to medical causation. See Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The veteran has the initial burden of establishing a well- grounded claim for service connection for a disorder, and, until he does so, VA has no duty to assist him including by providing him an additional VA examination. 38 U.S.C.A. § 5107(a) (West 1991); see Grivois v. Brown, 6 Vet. App. 136, 139-140 (1994). When a claimant refers to a specific source of evidence that could make his claim plausible, VA has a duty to inform him of the necessity to submit that evidence to complete his application for benefits. See Epps v. Brown, 9 Vet. App. 341, 344-45 (1996), aff'd Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). The Board finds VA has no outstanding duty to inform the veteran of the necessity to submit certain evidence to complete his application for VA benefits. 38 U.S.C.A. § 5103(a) (West 1991). There is no indication of any medical records that might well ground his claim. The veteran has at no time indicated that a medical professional has rendered an opinion that he has hearing loss as a result of his military service. The presentation of a well-grounded claim is a threshold issue, and the Board has no jurisdiction to adjudicate this claim unless it is well grounded. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). There is no duty to assist further in the development of this claim, because such additional development would be futile. See Murphy, 1 Vet. App. 78. 2. Entitlement to service connection for decreased visual acuity. The veteran contends that his decreased visual acuity is due to his exposure to an explosion at an ammunition supply point during the Korean conflict. He has claimed that after the explosion he was unconscious and was treated at a field hospital for about a month. He stated that at first he could not see at all, but that gradually his vision returned. He contends that his vision never fully recovered. A November 1956 rating decision denied the veteran's claim for service connection for a decrease in visual acuity. The RO determined that the evidence only indicated the presence of a minor refractive error. 38 C.F.R. § 4.9 (1997) states that mere congenital defects, such as refractive error of the eye, are not diseases or injuries in the meaning of the applicable legislation for disability compensation purposes. As noted in the introduction, the Board has determined that the RO's characterization of this claim as one involving new and material evidence was incorrect. The November 1956 rating decision did not become final. Evidence of record at the time of that decision included the veteran's service medical records. Evidence submitted subsequent to the November 1956 RO decision consists of records of medical treatment dated between 1972 and 1994, the report of a VA visual examination conducted in August 1995, lay statements attesting to the veteran's injury in an explosion during the Korean War, and the veteran's testimony at his personal hearings. The veteran has also submitted photocopies of a partially burned Spanish language version of the Standard Form 89, a medical history form used for military medical examinations shows that the veteran gave a history of visual disturbances. The report of his entrance examination, conducted in October 1951, shows his vision to be 20/20 bilaterally, although he claimed that his distant vision was blurred. His separation examination, conducted in October 1953, noted that his visual acuity was mildly defective. His distant vision at that time was noted to be 20/30 bilaterally. There were no other abnormal findings. He complained of visual disturbances. A document in the claims folder, dated in January 1979, notes that a search of the morning reports for the veteran's claimed unit, for the period August through October 1952 failed to show any remarks pertaining to sick call or injury for the veteran. This document noted that records showed that all available medical records pertaining to the veteran were sent to the RO in San Juan, Puerto Rico in 1956, and were not, therefore, damaged in any way in the 1973 fire at the National Personnel Records Center. As noted in the discussion of the first issue, the claims folder contains two lay statements, dated in 1976 and 1977, which attest to the veteran's injury during an explosion. At his personal hearing, conducted in August 1994, the veteran testified that he was burned on the face by the explosion at the ammunition supply point, and that he lost his vision for some time. He stated that he was treated for approximately one month and had scarring of his face. The report of a VA visual examination, conducted in August 1995, noted corrected visual acuity of 20/30+ in the right eye and 20/25+ in the left eye for distant vision. There was no visual field deficit. There was no diplopia. The assessment was dry eyes, possibly secondary to rheumatoid arthritis, presbyopia, mild cataracts, and early age related macular degeneration. At his personal hearing, conducted in October 1996, the veteran contended that he had been scheduled for eye surgery by VA after Korea, but that the surgery was never performed. He complained of blurred vision in his left eye. In view of the foregoing, the Board finds that there is sufficient evidence of a current disability and of a disease or injury during service and the first two elements of a well-grounded claim for service connection have been satisfied. However, there is no medical evidence showing a nexus, or link, between a disease or injury incurred during service and the veteran's current decreased visual acuity. There is no medical evidence showing any relationship between the explosion in service and the veteran's subsequent decrease in visual acuity. The only evidence linking the veteran's decreased visual acuity to his period of service consists of his current statements. Even accepting his statements as true, he cannot meet his initial burden, as noted above, lay persons are not competent to render an opinion as to medical causation. As noted above, the veteran has the initial burden of establishing a well- grounded claim for service connection for a disorder, and, until he does so, VA has no duty to assist him including by providing him an additional VA examination. When a claimant refers to a specific source of evidence that could make his claim plausible, VA has a duty to inform him of the necessity to submit that evidence to complete his application for benefits. The Board finds VA has no outstanding duty to inform the veteran of the necessity to submit certain evidence to complete his application for VA benefits. There is no indication of any medical records that might well ground his claim. The veteran has at no time indicated that a medical professional has rendered an opinion that he has hearing loss as a result of his military service. As noted above, the presentation of a well-grounded claim is a threshold issue, and the Board has no jurisdiction to adjudicate this claim unless it is well grounded. There is no duty to assist further in the development of this claim, because such additional development would be futile. ORDER Entitlement to service connection for headaches, vertigo, and shoulder and arm pain is denied. Entitlement to service connection for decreased visual acuity is denied. M. W. GREENSTREET Member, Board of Veterans' Appeals