Citation Nr: 1300936 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 05-29 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for glaucoma, to include as secondary to herbicide exposure and the service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T.S. Willie, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to March 1966. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This issue was remanded by the Board for additional development in January 2009, September 2010 and May 2012. FINDINGS OF FACT 1. Glaucoma was initially demonstrated many years after service discharge and has not been shown by competent clinical, or competent and credible lay evidence to be causally related to the Veteran's active service, to include exposure to any herbicides while serving in Vietnam. 2. Glaucoma was not caused by and/or permanently made worse by the service connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for glaucoma, to include as due to exposure to herbicides and secondary to the service connected diabetes mellitus, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310, 3.313 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in April 2005, January 2009, and September 2010, VA advised the Veteran of the information and evidence needed to substantiate a claim, to include on a secondary basis. These letters provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. The appeal was most recently readjudicated in the November 2012 supplemental statement of the case. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records and identified private medical records. Records were requested from the Social Security Administration (SSA), but response received indicates that the Veteran never filed for disability benefits. Pursuant to the May 2012 remand, the VA addendum opinion was obtained. On review, the opinion is adequate and substantially complies with the remand directive. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). ANALYSIS The Veteran appeals the denial of service connection for glaucoma. Service connection is warranted where the evidence of record establishes 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 thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.310(a) of VA regulations, 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); see also 38 C.F.R. § 3.310(b). Initially, the Veteran contends that his glaucoma is a result of his exposure to Agent Orange in Vietnam. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era. See 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a) (6) (iii). In addition, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a) (6) (iv). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases, such as prostate cancer, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a) (6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Thus, a presumption of service connection arises for a Vietnam veteran (presumed exposed to Agent Orange) who develops one of these conditions. VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994); see also 61 Fed. Reg. 57586 - 57589 (1996). Considering the record in light of the above-noted legal authority, the Board finds that service connection for glaucoma, to include as due to exposure to herbicides, is not warranted. In this case, the Veteran's DD 214 clearly reflects service in Vietnam, thus he is presumed to have been exposed to Agent Orange during such service, for the purpose of this discussion. The record, however, does not establish that the Veteran has been diagnosed with a disability listed as one of the diseases associated with herbicide exposure under 38 C.F.R. § 3.309(e). In this regard, glaucoma is not one of the disabilities that can be presumed to be the result of Agent Orange exposure. See 38 C.F.R. § 3.309(e). Because the disability for which the Veteran is claiming service connection based on exposure to herbicide is not listed under 38 C.F.R. § 3.309(e), the Veteran is not entitled to service connection for this disability on a presumptive basis stemming from his exposure to herbicides in service. The regulations governing presumptive service connection for herbicide exposure, however, do not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (1994). Accordingly, the Board will proceed to evaluate the Veteran's claim under the provisions governing direct service connection, 38 U.S.C.A. § 1110 and 38 C.F.R. §§ 3.303. Service treatment records are negative for complaints, symptoms, findings or diagnosis of glaucoma. Post-service medical evidence reflects that the Veteran was diagnosed with glaucoma in 1988. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, there is no competent evidence or opinion that the Veteran's diagnosed glaucoma is related to his military service, to include Agent Orange exposure, and neither the Veteran nor his representative has presented, identified, or even alluded to the existence of any such opinion. Rather, the VA examiner opined in November 2011 that the Veteran's glaucoma was likely family history related. He further elaborated in June 2012 that family history of glaucoma in and of itself is a risk factor for developing glaucoma and that age is a risk factor. He opined that the Veteran did not have any exacerbating factor while in service that would have lead to glaucoma. He noted that it appeared to be symmetric changes in the cup to disk ratio in both eyes and if it was trauma related it is typically seen in one eye versus the other. The Board has reviewed all service treatment records, all VA medical records from 2005 to present, as well as private medical records from Dr. B, Dr. C, Dr. W, and Dr. S. These records do not include any opinion linking glaucoma to service. While there is evidence of current glaucoma; without competent evidence linking a current disability to service, service connection for glaucoma on a direct basis is denied. The Board also finds that service connection for glaucoma as secondary to the service connected diabetes mellitus is not warranted. In this regard, the June 2012 VA examiner opined that the Veteran's diabetes is not related to his glaucoma because diabetes does not in and of itself cause glaucoma. The record is devoid of any showing of the contrary. On review, the claims folder simply does not contain competent evidence relating glaucoma to active military service or events therein, to include herbicide exposure. There is also no competent evidence indicating that such is proximately due to or aggravated by service-connected disability. Specifically, the most recent examiner found the glaucoma unrelated to diabetes, and more likely related to family history or age. In making this determination, the Board acknowledges the Veteran's contentions, but notes that as a lay person, he is not competent to render an etiology opinion on a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Under these circumstances, the Board finds that the claim for service connection for glaucoma, to include as secondary to service-connected diabetes mellitus must be denied. In reaching the conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the competent and probative evidence does not support a finding of service connection for glaucoma, on a direct or secondary basis, 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 glaucoma is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs