Citation Nr: 0002631	
Decision Date: 02/02/00    Archive Date: 02/10/00

DOCKET NO.  96-29 910	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUE

Entitlement to service connection for glaucoma.


REPRESENTATION

Appellant represented by:	Sean A. Kendall, Attorney at 
Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. Gallagher, Counsel


INTRODUCTION

The veteran served on active duty from July 1968 to July 
1970.

This matter comes before the Board of Veterans' Appeals 
(Board) from a April 1993 rating decision of the Department 
of Veterans Affairs (VA) Regional Office (RO) in Atlanta, 
Georgia, which denied service connection for glaucoma on the 
basis that there was not new and material evidence to reopen 
a claim for glaucoma in both eyes.  A claim for service 
connection for glaucoma had been denied by the RO in a July 
1989 final rating decision.  38 U.S.C.A. § 7105(c) (West 
1991).

The appellant filed a Notice of Disagreement with the April 
1993 rating decision and, following a personal hearing, a 
Hearing Officer determined that there was new and material 
evidence and that the claim had been reopened.  In rating 
decisions dated December 1993 and April 1997, service 
connection for glaucoma was denied.

The Board denied service connection for glaucoma on the basis 
that the claim was not well grounded in June 1997.  The 
veteran appealed to the United States Court of Appeals for 
Veterans Claims (Court), and, in an April 1999 order, the 
Court granted a Joint Motion for Remand by the parties.  In 
the Joint Motion for Remand, the parties stipulated that the 
claim was well grounded and remanded the case to the Board 
for a decision on the merits.  See Joint Motion at 9.

After the claim for service connection was reopened by the VA 
hearing officer, neither the Board nor the Court addressed 
the question of whether the evidence was new and material to 
reopen the claim.  See Barnett v. Brown, 83 F.3d 1380, 1383 
(Fed. Cir. 1996) (noting that any statutory tribunal must 
ensure that it has jurisdiction over each case before 
adjudicating the merits, that a potential jurisdictional 
defect may be raised by the court or tribunal, sua sponte, or 
by any party, at any stage in the proceedings, and, once 
apparent, may be adjudicated).  However, because the parties, 
in the Joint Motion, have found the claim well grounded, the 
Board notes that the claim has been implicitly reopened.  
Elkins v. West, 12 Vet. App. 209, 218-19 (1999); Winters v 
West, 12 Vet. App. 203, 206-07 (1999); see also Hodge v. 
West, 155 F.3d 1356 (Fed. Cir. 1998).  Therefore, since the 
Board is granting service connection for glaucoma in the 
decision below, the Board notes that the fact that this award 
arises from a reopened claim is a relevant consideration in 
establishing the appropriate effective date for the award.


FINDINGS OF FACT

Eye inflammation and irritation for which the veteran was 
treated in service in 1970 were likely early signs or 
symptoms of glaucoma, first diagnosed in 1984.


CONCLUSION OF LAW

Service connection for glaucoma is warranted in this case.  
38 U.S.C.A. §§ 1110, 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 
3.303, 3.304 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In general, establishing service connection for a disability 
on a direct basis requires the existence of a current 
disability and a relationship or connection between that 
disability and a disease or injury incurred in service.  
38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.304 
(1998); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); 
Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).  

Service medical records show that the veteran had complaints 
of and treatment for an eye condition in 1970.  On May 19, 
1970, the appellant went to an emergency room complaining of 
trouble with his right eye, and it was diagnosed as 
conjunctivitis.  On May 28, 1970, the appellant went to an 
ophthalmology clinic complaining of pain.  This examination 
did not include a standard pressure measurement, but the 
examiner reported that the tactile tension was soft.  

A July 1, 1970, Report of Medical Examination indicated that 
the appellant had had eye trouble and was being treated for 
an infection in his right eye.  The next day, the appellant 
went to the ophthalmology clinic complaining that he still 
had irritation.  

It is clear that the appellant had complaints of and 
treatment for eye problems in service.  However, glaucoma was 
never diagnosed in service or before 1984 which was more than 
a decade after service.  Thus, the question in the case is 
whether there is evidence to support a finding that his 
symptoms in service were the early signs of glaucoma or 
whether his glaucoma is the result of his service connected 
eye disorder.

On a November 1971 VA outpatient eye examination report, the 
findings pertaining to the eyes were normal.  On a June 1972 
VA special neuropsychiatric examination report, the veteran's 
complaints included that sometimes he could not see out of 
his right eye.  The doctor noted that the veteran had 
multiple somatic complaints and diagnosed anxiety reaction.  
On a November 1972 Memorandum from the Staff Psychiatrist of 
a VA Mental Health Clinic it was noted that during his visits 
to the outpatient clinic, the veteran manifested much anxiety 
and had had multiple somatic complaints.  VA outpatient 
notations dated in October and November 1975 show that the 
veteran complained of his right eye bothering him some and of 
eye aches.  The November 1975 examiner noted, "Anxiety [and] 
depression is (sic) causing . . . eye aches."  On a November 
1977 VA special neuropsychiatric examination report, the 
veteran complained, among other things, of swelling in the 
eyes.  The examiner noted, "He is preoccupied with numerous 
physical functional complaints."

In January 1987, the RO received a copy of a letter, dated 
July 8, 1985, from a private physician, Thomas S. Harbin, 
M.D., to another doctor which showed a diagnosis of glaucoma.  
A January 1987 letter from Dr. Harbin showed that the veteran 
had had bilateral laser trabeculoplasties and since then his 
"pressures have been controlled."  On a February 1987 VA 
medical center (VAMC) discharge summary, it was noted that 
the veteran had been diagnosed with glaucoma two years 
earlier and had had laser surgery for it in the summer of 
1986.  A letter dated March 14, 1989, from Dr. Harbin showed 
that Dr. Harbin had been treating the veteran for glaucoma 
since 1985 when he was referred by Dr. Thomas Manchester.

On a March 1989 VA examination report, the doctor was asked 
to render an opinion as to whether glaucoma was related to 
the veteran's service-connected eye infection.  In response 
to this question, the doctor stated that it was possible that 
the glaucoma was related to an eye infection but that such a 
relationship depended on whether the glaucoma was primary or 
secondary.  The doctor noted that, due to the veteran's 
schizophrenia, a medical history that would suggest primary 
or secondary glaucoma was not possible.  The doctor observed 
that the causes of primary glaucoma were not known but that 
basal motor and emotional instability, hyperopia, and 
especially hereditary factors are among the predisposing 
factors.  The doctor stated that secondary glaucoma is 
usually secondary to an intraocular disorder, usually 
anterior uveitis and that inflammatory disease of the 
anterior segment may prevent aqueous escape by causing 
complete posterior synechia and iris bombé and may plug the 
drainage to channel with exudates.  Other common causes of 
secondary glaucoma were intraocular tumors, intumescent 
cataracts, central retinal vein occlusion, trauma to the eye, 
operative procedures, and intraocular hemorrhages.  In 
conclusion, the doctor stated that, if the veteran had 
primary glaucoma, it was not related to the eye infection in 
service but that, if he had secondary glaucoma, then it 
mostly likely was related to the eye infection in service.  
Another VA doctor's eye examination report, also dated March 
1989, showed the diagnosis of "POAG" or primary open angle 
glaucoma.  On a December 1992 VA eye examination report, the 
diagnosis of POAG was also rendered.

In a May 1993 letter, another private physician, Randall R. 
Ozment, M.D., stated, "It would be difficult to say whether 
or not the symptoms he had years ago were the beginning of 
his glaucoma.  It is certainly possible that his glaucoma 
began at that time."  Another private physician, Alice 
Chelton, M.D., stated in a May 1993 letter that she had seen 
the veteran weekly for psychotherapy and medication from 
February 1972 to August 1972.  She stated that on one 
occasion in May 1972 the veteran complained of pain in his 
eye "which seemed to occur in association with emotional 
stress."

In February 1994, the RO referred the veteran's records to a 
VAMC for the purpose of obtaining a medical opinion as to 
whether the veteran's symptoms in service were actually the 
early manifestations of his glaucoma.  In November 1994, the 
records were reviewed by a VA physician who issued a medical 
opinion which provided in pertinent part,

In 1984 the veteran was documented with 
glaucoma.  By that time there was optic 
nerve damage and visual field loss.  
Glaucoma is a chronic, slowly progressive 
condition and it usually takes years for 
the elevated pressure to affect the optic 
nerve.  The length of time between 
pressure elevation and disc damage varies 
for each patient.  With [the veteran] it 
cannot be stated without a doubt that he 
did not have glaucoma when he presented 
with pain in 1970.  There is no 
documentation of an intraocular pressure, 
no detailed description of the optic 
nerve appearance and no visual field.

The VA physician also indicated with regard to the tactile 
tension test which had been performed in service that tactile 
tension is an "unaccepted, unscientific attempt at 
estimating the eye pressure," that the method "does not at 
all correlate with the true intraocular pressure that is 
measured through tonometry," and without a specific 
reference to optic nerve appearance, macula, retina or bloods 
vessels, "the extent and thoroughness of the fundoscopic 
exam cannot be determined," nor could any clinical 
conclusions be drawn about the health of the eye.

A letter from Dr. Ozment, dated June 11, 1996, repeated the 
opinion rendered in May 1993:  "It would be difficult to say 
whether or not the symptoms he had years ago were the 
beginning of his glaucoma.  It is certainly possible that his 
glaucoma began at that time."

On remand from the Court, the veteran has provided a medical 
opinion from a private physician, Craig N. Bash, M.D.  In a 
November 1999 letter, the veteran has waived his right to 
have the RO review this evidence in the first instance.  
38 U.S.C.A. § 20.1304(c) (1999).  Dr. Bash noted that he 
reviewed the veteran's service medical records and other 
pertinent medical records in the claims file.  He stated that 
he agreed with the veteran's current diagnosis of glaucoma, 
and he rendered the following opinion as to the origin of the 
disease:

It is likely that this patient's in 
service extensive eye troubles were the 
first symptoms of his glaucoma and [] his 
"conjunctivitis"/inflammatory process 
was the ocular disorder that caused his 
secondary angle closure glaucoma because 
this patient does not have any radiologic 
imaging documented congenital anomalies 
to cause the glaucoma, other predisposing 
factors or a documented family history.

Dr. Bash provided a detailed rationale for his opinion, 
noting the findings of other doctors from the medical reports 
of record in the context of an explanation and discussion of 
the nature of the disease which included quotations from 
medical texts.  For example, Dr. Bash explained how the 
diagnosis of POAG "does not preclude open angle glaucoma 
which is secondary to inflammation (conjunctivitis) so called 
angle closure glaucoma because as Ritch stated above the 
angle may appear normal."

The Board notes that none of the evidence in this case 
satisfactorily proves or disproves the claim that the eye 
disorder for which the veteran was treated in service was the 
early signs, symptoms, or stages of glaucoma first diagnosed 
in 1984.  See 38 C.F.R. § 3.102 (1999) (Defining reasonable 
doubt as existing "because of an approximate balance of 
positive and negative evidence which does not satisfactorily 
prove or disprove the claim.").  As noted in the medical 
reports of record, the kind of test performed in service, the 
"tactile tension" test, is an "unaccepted, unscientific 
attempt at estimating the eye pressure" and does not serve 
to prove the presence of "true intraocular pressure that is 
measured through tonometry" or to disprove the presence of 
such intraocular pressure.  Tonometry was not conducted in 
service.  However, some of the medical evidence of record, 
especially when read in the context of Dr. Bash's detailed 
medical opinion, shows that glaucoma is a "slowly 
progressive condition and it usually takes years for the 
elevated pressure to affect the optic nerve", which had been 
affected by the time of the veteran's diagnosis in 1984, and 
this evidence undermines the negative evidence presented by 
the long gap of time between service and diagnosis as being 
indicative of an onset of the disease necessarily or probably 
many years after service.  Moreover, the medical evidence of 
record rules out causes other than infection and inflammation 
as being relevant or pertinent factors to the development of 
glaucoma in this particular case.  Finally, in Dr. Bash's 
opinion, in-service right eye inflammatory process was a 
"likely" cause of the veteran's glaucoma.  Thus, the Board 
concludes that, while there is still doubt as to whether 
glaucoma originated in service, the chance that it did is 
"within the range of probability as distinguished from pure 
speculation or remote possibility."  38 C.F.R. § 3.102 
(1999).  Thus, in accordance with the law, reasonable doubt 
must be resolved in favor of the veteran in this case, and 
therefore the Board concludes that service connection is 
warranted for glaucoma.  38 U.S.C.A. § 5107(b) (West 1991); 
38 C.F.R. § 3.102 (1999).  


ORDER

Service connection for glaucoma is granted.



		
	BETTINA S. CALLAWAY
	Member, Board of Veterans' Appeals