Citation Nr: 0305961 Decision Date: 03/28/03 Archive Date: 04/08/03 DOCKET NO. 98-12 550 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to service connection for the claimed residuals of cataract of the left eye. 2. Entitlement to service connection for claimed glaucoma of the left eye. 3. Entitlement to service connection for claimed glaucoma of the right eye. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Mary C. Suffoletta, Associate Counsel INTRODUCTION The veteran had active service from January 1951 to October 1952. This case initially came to the Board of Veterans' Appeals (Board) on appeal from a December 1997 decision of the RO. The Board found new and material evidence to reopen the veteran's claims and remanded the case to the RO for additional development of the record in January 2000. FINDINGS OF FACT 1. The veteran currently is shown to have left eye cataract residuals that as likely as not are due to an injury service. 2. The veteran's glaucoma of the left eye is shown as likely as not to have been aggravated by his service-connected disability. 3. The veteran currently is not shown to have glaucoma of the right eye that is due to any event in service or that was caused or aggravated by service-connected disability. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the veteran, his disability manifested by residuals of a left eye cataract is due to an injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 7104 (West 2002); 38 C.F.R. § 3.303 (2002). 2. By extending the benefit of the doubt to the veteran, his disability manifested by glaucoma of the left eye is proximately due to or the result of the service-connected disability. 38 C.F.R. § 3.310 (2002); Allen v. Brown, 7 Vet. App. 439 (1995). 3. The veteran is not shown to have disability manifested by glaucoma of the right eye due to disease or injury that was incurred in active service; nor is any proximate due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 7104 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Assist and Provide Notice There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminates the concept of a well-grounded claim and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VCAA, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). To implement the provisions of the law, VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)). The implementing regulations are meant to define terms used in the Act, and provide guidance for carrying out the requirements of the Act. The regulations, with the exception of development in the case of attempts to reopen finally denied claims made after August 21, 2001, are not meant to bestow any new rights. 66 Fed. Reg. 45,629 (Aug. 29, 2001). Thus, the veteran is not prejudiced by the Board's initial application of the regulations to his claims. In this case the veteran's application appears to be complete. He has been informed of the information necessary to substantiate his claims via the Statement of the Case, the Supplemental Statement of the Case, and the Board's earlier remand. There does not appear to be any relevant evidence that has not been associated with the claims folder. The record contains sufficient information and opinions to decide the claims for service connection for the claimed residuals of a cataract of the left eye, and for the claimed glaucoma of each eye. The Board finds that all relevant evidence has been obtained with regard to the veteran's claims. Hence, no further assistance to the veteran is required to fulfill VA's duty to assist him in the development of these claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002). II. Factual Background A careful review of service medical records shows that the veteran's eyes were not examined at the time of his pre- induction examination in October 1950. The records show that, in January 1951, the veteran was diagnosed with eye refraction. In March 1952, the veteran was hospitalized for two days for a lacerated wound of the left upper eyelid. The records reflect that the veteran had walked into a door and broke his glasses. The wound was dressed and sutured. The service medical records at the time of the veteran's separation examination in October 1952 note a healed scar of the left upper eyelid and bilateral myopia. The non-VA medical records show diagnoses of uncontrolled glaucoma and a cataract in the early 1980's. In a medical statement dated in March 1983, the veteran's treating physician indicates that he had treated the veteran in July 1980 when he had complained of having a red spot on his eye and was found to have a rather benign subconjunctival hemorrhage. The treating physician also noted increased pressure in the veteran's eye and an early cataract forming. The veteran had reported that he sustained direct trauma to his eye while in service in 1951 that had been severe enough to require sutures. The veteran had since undergone a removal of the cataract from the left eye and a surgical procedure for the glaucoma in that eye. The treating physician could not state specifically that the veteran's problems with his eye were related to the injury in service, but did state that it was well known that direct trauma to the eye could cause damage that was not apparent for many years. The records reflect that the veteran had an implant in his right eye and wore a contact lens in his left eye. In a December 1992 rating decision, the RO granted service connection for ptosis as secondary to the left eyelid laceration in service and assigned a no percent rating under Diagnostic Code 6019, effective in July 1991. The veteran underwent a VA examination in March 2002. The veteran reported his injury in service and noted having a ptosis of the left upper eyelid ever since. He reported having chronic problems with the contact lens because of the droopy left upper eyelid. He reported that he was unable to wear the contact lens for long periods of time and had trouble seeing at night. His glaucoma also was controlled by medication. The veteran reported that the pain and inability to keep the contact lens in his eye led him to lose is job. He also reported a negative family history for glaucoma. The diagnosis was that of a history of an injury caused by broken eyeglasses in 1952, causing a laceration of the left upper eyelid. The VA examiner was unable to say whether the injury to the left upper eyelid had caused the glaucoma and cataract in the left eye, but noted that an injury causing blunt trauma to the eye could certainly predispose someone to not only a cataract but to traumatic glaucoma. The VA examiner also could not explain the veteran's cataract and glaucoma in the right eye and noted that the veteran seemed to have symmetric optic nerve head cupping in each eye. The examiner added that the glaucoma in the left eye might not be of a traumatic nature. Statements of the veteran in the claims folder are to the effect that his left eyelid drooped and pressed on the contact lens, causing irritation and watery eyes. III. Legal Analysis Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Secondary service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310(a). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time. 38 U.S.C.A. § 1111. Service medical records of the veteran's entry report no defects of the eyes, and the Board presumes the veteran to have been in sound condition at the time of entry. Parker v. Derwinski, 1 Vet. App. 522 (1991). Service connection is in effect for ptosis as secondary to the left eyelid laceration. (1) Residuals of Cataract of the Left Eye In the instant case, there is no evidence that a cataract of the left eye was present in service. The service medical records show that the veteran sustained a lacerated wound to the left upper eyelid in 1952. The post-service medical records reflect a left eye cataract forming in the early 1980's and its subsequent removal. As to a medical opinion on nexus, both the veteran's treating physician and a VA examiner indicated that it was well known that direct trauma to an eye could likely result in damage to that eye several years later or could likely predispose an individual to a cataract. There is no evidence to the contrary. Since there is evidence of a lacerating wound to the veteran's left upper eyelid in service that required sutures, the Board finds that it is at least as likely as not that the injury to the veteran's left upper eyelid during service was the cause of his currently demonstrated left eye disability manifested by the residuals of a cataract. Having considered all the evidence, the Board finds that, as it is in relative equipoise, the veteran must prevail as to his claim for service connection with application of the benefit of the doubt in his favor. 38 U.S.C.A. § 5107. (2) Glaucoma of the Left Eye Here, the veteran's service medical records are negative of manifestations of glaucoma. As noted hereinabove, the veteran sustained a lacerating wound of his left upper eyelid in service. The post-service medical records first show evidence of bilateral glaucoma in the early 1980's and reflect that the veteran underwent a surgical procedure to reduce pressure on his left eye. Following that procedure, the veteran began wearing a contact lens in his left eye for treatment of the glaucoma and to improve his vision. The more recent medical evidence shows that the veteran's bilateral glaucoma is controlled by medications. However, the veteran complains that the droopiness of his left upper eyelid, due to his service-connected disability, causes pressure on his contact lens and irritates his left eye. The veteran often removes his contact lens for lengthy periods of time, which adversely affects the vision in his left eye. Here, the Board finds that the evidence does not show that the lacerated wound of the veteran's left upper eyelid in service directly caused the veteran's glaucoma. While noting that such injury might predispose an individual to traumatic glaucoma, in this case the VA examiner found that the veteran had symmetric optic nerve head cupping in each eye and concluded that the glaucoma in the left eye was not of a traumatic nature. With regard to the matter of establishing service connection for a disability on a secondary basis, the Court has held that, when aggravation of a non-service-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that, under Allen supra, the veteran need not show that his glaucoma arose during service; he need only show that it was aggravated by his service-connected disability. At the time of the VA examination in March 2002, the veteran had not been wearing the contact lens in his left eye. The report of VA examination reflects that, while confrontation fields in the right eye appeared to be full, the left eye appeared to be severely constricted. The veteran also reported chronic problems with the contact lens, and his inability to wear it because of his droopy left upper eyelid. The Board finds the medical evidence and the veteran's statements to be probative for purposes of demonstrating aggravation. The determination of service connection must, in this case, be based on the entire record. The overall evidence shows as likely as not that the currently demonstrated glaucoma of the veteran's left eye that requires the wearing of a contact lens is aggravated by his service-connected disability. Accordingly, by extending the benefit of the doubt to the veteran, service connection for glaucoma of the left eye on a secondary basis is warranted. (3) Glaucoma of the Right Eye The overall evidence does not serve to establish that the currently demonstrated glaucoma of the veteran's right eye is aggravated by the service-connected disability involving the left eye. Nor is there evidence of any disease or injury involving the veteran's right eye in service. The Board finds, based on its review of the record, that the veteran is not shown to have glaucoma of the right eye that was incurred in or aggravated by service. Here, as the preponderance of the evidence is against the claim for service connection for glaucoma of the right eye, the claim must be denied. Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107. ORDER Service connection for disability manifested by residuals of a left eye cataract is granted. Secondary service connection for glaucoma of the left eye is granted. Service connection for glaucoma of the right eye is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.