Citation Nr: 1022270 Decision Date: 06/15/10 Archive Date: 06/24/10 DOCKET NO. 05-11 052 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for eye disability, to include glaucoma. 2. Entitlement to an initial, compensable rating for degenerative disc disease (DDD), lumbar spine, from October 13, 2006. 3. Entitlement to an initial, compensable rating for tendonitis and degenerative disease, left shoulder, from October 13, 2006. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The Veteran had active service from December 1990 to May 1991, from January 2003 to October 2003, from October 2005 to October 2006, and from April 2007 to April 2008. In addition, prior to and between the above periods of service, the Veteran served in the Army Reserve and National Guard, to include approximately one year of active service between January 1972 and January 1975, as well as periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This appeal to the Board of Veterans' Appeals (Board) arose from a December 2004 rating decision in which the RO denied service connection for glaucoma. The Veteran filed a notice of disagreement (NOD) in December 2004, and the RO issued a statement of the case (SOC) in March 2005. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in March 2005. In October 2008, the Board remanded the Veteran's claim to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the AMC continued to deny the claim (as reflected in a March 2010 supplemental SOC (SSOC)) and returned the matter on appeal to the Board for further consideration. The Board notes that the Veteran's February 2004 claim was for eye problems and glaucoma, but that the RO characterized the issue as service connection for glaucoma. As the treatment records contain evidence of eye diagnoses, such as pigment dispersion syndrome of the iris and dry eye syndrome, which may indicate disabilities of the eyes other than glaucoma, the Board has recharacterized the issue accordingly. The Board's decision addressing the claim for service connection for eye disability, to include glaucoma, is set forth below. The issues of an initial, compensable rating for degenerative disc disease (DDD), lumbar spine, and for tendonitis and degenerative disease, left shoulder, each from October 13, 2006-for which the Veteran has completed the first of two actions required to place these matters in appellate status-are addressed in the remand following the order; those matters are being remanded to the RO, via the AMC. VA will notify the appellant when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. While the Veteran received treatment (to include surgery) for pigment dispersion syndrome of the iris, glaucoma, dry eye syndrome, and intraocular pressure during time frames coinciding with active service, ACDUTRA or INACDUTRA, the most probative medical opinion on the question of whether there exists a medical nexus between the Veteran's current pigmentary glaucoma, blepharitis, or cataracts and any military service weighs against the claim. CONCLUSION OF LAW The criteria for service connection for eye disability, to include glaucoma, are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). 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. In this appeal, in February and September 2004 pre-rating letters, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The December 2004 RO rating decision reflects the initial adjudication of the claim after issuance of the February and September 2004 letters. Post rating, a March 2006 letter provided the Veteran with general information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the March 2006 letter, and opportunity for the Veteran to respond, the March 2010 SSOC reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service and VA treatment records, and the reports of November 2004 and January 2010 VA examinations. Also of record and considered in connection with the appeal is the transcript of the Veteran's August 2008 Board hearing, along with various written statements provided by the Veteran, and by his representative, on his behalf. The Board also finds that no additional RO action to further develop the record on the claim for service connection for an eye disability, to include glaucoma, is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for 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. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board observes that, with respect to the Veteran's Army Reserve and National Guard service, the applicable laws and regulations permit service connection only for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or injury incurred or aggravated while performing INACDUTRA. See 38 U.S.C.A. § 101(22), (24); 38 C.F.R. § 3.6. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim for service connection for an eye disability, to include glaucoma, must be denied. Reports of service medical examinations in June 1981, September 1986, April 1988, March 1990, March 1991, and September 1995 contain notations that the Veteran's eyes were normal except for myopia. Additionally, the same reports include notations that the Veteran was ophthalmoscopically normal. A November 1991 report of service medical examination also contains notations that the Veteran was opthalmoscopically normal and had normal eyes; however, this report also indicates that the Veteran had increased intraocular pressure. Post service, an August 2001 glaucoma hemifield test performed by Kaiser Permanente yielded results outside normal limits. A May 2002 record from Kaiser Permanente reveals that the Veteran had a small probable microaneurysm in his left eye. A June 2002 Kaiser record indicates that the Veteran had a history of glaucoma and was stable on Lumigan. A March 2003 service treatment record has a notation that the Veteran suffered from increased intraocular pressure and probable early pigment dispersion syndrome in his left eye. The Veteran received follow-up care in May and August 2003. An August 2003 glaucoma hemifield test performed by Kaiser Permanente yielded results within normal limits. W.F.C., staff ophthalmologist, wrote in February 2004 that the Veteran experienced systemic and visual side effects from medication that was used to successfully treat his eye condition. In March 2004, a Kaiser examiner noted that the Veteran had a history of glaucoma. It was noted that the Veteran used Lumigan and had pigment dispersion syndrome. On VA eye examination in November 2004, the examiner recorded the Veteran's history of using Lumigan. The examiner gave diagnoses of open-angle glaucoma and mild cataract. A VA general examiner recorded a diagnosis of glaucoma. In December 2004, the Veteran remarked that after his active duty, his civilian job had modified his work due to his visual handicap. He reported experiencing a blind spot in his left eye. He further remarked that he was photophobic and had to wear dark glasses when he was outdoors. A January 2006 outpatient record from Ft. Hood reflects a diagnosis of preglaucoma. The Veteran asked the chief of the ophthalmology service whether stress at work could possibly contribute to elevated pressure in the eyes. The ophthalmologist responded that while he could not produce a scientific study to answer that question, it was his medical opinion that stress certainly could contribute to many body functions, and very likely to intraocular pressure as well. In August 2006, the Veteran underwent an anterior chamber laser trabeculoplasty at Ft. Hood. During his August 2008 Board hearing, the Veteran testified that he first started receiving treatment for increased ocular pressure in 2002 or 2003. He said that his ocular pressure was under control with medication. He indicated that he was monitored every three to four months, and he had daily treatment with ophthalmic eye drops. On VA examination in January 2010, the examiner reviewed the Veteran's dates of active duty and commented on the available treatment records. The Veteran complained of three episodes of subconjunctival hemorrhages in the left eye within the past five years. He also remarked that he had occasional tearing in his left eye in cold weather, and the Veteran felt that the tearing was connected to glaucoma. The examiner recorded the results of the examination and diagnosed three disorders. First, the examiner stated that the Veteran had pigmentary glaucoma that was not due to any events occurring during active military service, ACDUTRA, or INACDUTRA. It was noted that while strenuous exercise could result in brief episodes of blurred vision and increased intraocular pressure, strenuous exercise did not cause glaucoma. Additionally, the Veteran gave no history of strenuous exercise or symptoms associated with it. Second, the examiner opined that the Veteran had blepharitis that was not due to any events occurring during active military service, ACDUTRA, or INACDUTRA. The examiner remarked that blepharitis affected the skin of the eyelids, and it usually involved the part of the eyelid where the eyelashes grow. It was further noted that commonly, blepharitis occurred when tiny oil glands located near the base of the eyelashes malfunction, which resulted in bacterial overgrowth and inflamed, irritated, and itchy eyelids. Third, the examiner opined that the Veteran had cataracts that were not due to any events occurring during active military service, ACDUTRA, or INACDUTRA. The examiner remarked that age-related changes in the eyes were the most common cause of cataracts. As indicated, the Veteran received treatment (to include surgery) for pigment dispersion syndrome of the iris, glaucoma, dry eye syndrome, and intraocular pressure during time frames coinciding with active service, ACDUTRA or INACDUTRA. However, the Board finds that the most probative medical opinion evidence on the question of whether there exists a medical nexus between the Veteran's current pigmentary glaucoma, blepharitis, or cataracts and any military service weighs against the claim. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 , 173(1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2009). The Board acknowledges that, while the Veteran was on active duty in January 2006, a service ophthalmologist opined that stress at work certainly could contribute to many body functions, and very likely to intraocular pressure as well. While the examiner spoke in general terms, he did not provide a specific connection between an actual diagnosed eye disability and the Veteran's active duty service, any period of ACDUTRA or INACDUTRA. Thus, this opinion falls short of providing a necessary medical nexus between current disability and injury or disease during active duty or ACDUTRA, or injury during INACDUTRA. Moreover, the examiner merely offered his opinion in response to a question from the Veteran. He did not indicate review of the Veteran's treatment records, he acknowledged that there were no scientific studies that would support his opinion, and he offered no factual or medical rationale for his opinion. Accordingly, the Board finds that the January 2006 statement regarding nexus is entitled to little, if any, probative weight. By contrast, the Board accepts the January 2010 VA examiner's opinion as probative evidence on the medical nexus question. The examiner specified an understanding of the Veteran's various periods of active duty and commented on the service and VA treatment records. He interviewed the Veteran and conducted a thorough eye examination. In offering his opinion, he provided adequate reasons and bases to support the opinion that none of the Veteran's currently diagnosed eye disorders was due to any events occurring during active military service, ACDUTRA, or INACDUTRA. For these reasons, the Board finds the opinion of the January 2010 examiner is entitled to greater probative weight. In addition to the medical evidence discussed above, in adjudicating this claim, the Board has considered the appellant's assertions, as well as those advanced by his representative, on his behalf; however, none of this evidence provides a basis for allowance of the claim. As indicated above, the claim turns on the medical matter of whether there exists a relationship between a current eye disability for which service connection is sought and service, a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative is shown to be other than a layperson without appropriate medical training and expertise, neither is competent to render a probative (persuasive) opinion on the medical matter upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for an eye disability, to include glaucoma, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for an eye disability, to include glaucoma, is denied. REMAND The Board notes that, in an August 2007 rating decision, the RO granted service connection and assigned a noncompensable rating for DDD, lumbar spine, and tendonitis and degenerative disease, left shoulder, each effective October 13, 2006. The Veteran was furnished notice of this rating decision on August 27, 2007. On July 1, 2008, the Veteran filed an NOD with each initial rating assigned. However, the RO has yet to issue a SOC with respect to these claims, the next step in the appellate process. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, these matters must be remanded to the RO for the issuance of an SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following action: The RO must furnish to the Veteran and his representative an SOC on the matters of entitlement to a compensable rating for DDD, lumbar spine, and tendonitis and degenerative disease, left shoulder, each effective October 13, 2006, along with a VA Form 9, and afford them the appropriate opportunity to submit a substantive appeal perfecting an appeal on those issues. The Veteran and his representative are hereby reminded that to obtain appellate review of any matter not currently in appellate status-here, entitlement to a compensable rating for DDD, lumbar spine, and tendonitis and degenerative disease, left shoulder, each effective October 13, 2006-a timely appeal must be perfected within 60 days of the issuance of the SOC. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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 Supp. 2009). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs