Citation Nr: 1301281 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 07-17 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for bilateral glaucoma, to include as secondary to service connected diabetes mellitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to provide the Veteran with VCAA notice and to afford the Veteran a VA medical examination. The action specified in the April 2011 Remand has been completed, and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's bilateral glaucoma did not have its onset in service and was not caused or permanently aggravated by the Veteran's active military service, to include the Veteran's service connected diabetes mellitus or exposure to Agent Orange. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral glaucoma have not been met. 38 U.S.C.A. §§ 1110, 1112 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted 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) (2012). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2012). Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310 (2012). In cases of aggravation of a veteran's non-service-connected disability by a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322 (2012). VA regulations also provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin's disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309(e) (2012). A veteran, who during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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 service. 39 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). The Veteran is seeking entitlement to service connection for bilateral glaucoma. There is no evidence of this disability in the Veteran's service treatment records and it does not appear that the Veteran is claiming that his glaucoma had onset in service. However, he has argued that his glaucoma was caused or permanently aggravated by his service connected diabetes mellitus or that it was caused by exposure to Agent Orange. In support of his claim, the Veteran has submitted a December 2005 letter from Dr. R.B., his eye surgeon, who notes that "[the Veteran] was exposed to Agent Orange during his Vietnam tour and I believe he had multiple sequelae to that exposure. Of note, from an eye point of view is that he developed chronic iritis in both eyes which exacerbated a diabetic condition and led to severe secondary glaucoma." During the development of the instant claim, the Veteran was provided a VA examination in October 2005, but there was no opinion as to whether the Veteran's glaucoma was related to service or to his service-connected diabetes mellitus. However, a later addendum opinion in December 2005 indicated that the Veteran's bilateral glaucoma was not caused or aggravated by his diabetes. An April 2006 addendum opinion noted that a review of the Veteran's records showed a history of chronic uveitis with subsequent development of uveitic glaucoma, but that there is no known correlation between Agent Orange and uveitis and uveitic glaucoma. The examiner further concluded that the Veteran's diabetes mellitus did not cause his uveitis or glaucoma. Unfortunately, as noted by the Veteran's representative in his March 2011 Informal Hearing Presentation, the addendum opinions are single sentences which offer no rationale for why the Veteran's glaucoma was not related to, or aggravated by, his service-connected diabetes and do not indicate that any medical records were reviewed in coming to these conclusions. Furthermore, the Veteran's representative provided a website which stated that glaucoma can be a common complication of diabetes. In May 2011, the Veteran was afforded another VA examination. The Veteran had bilateral uveitic glaucoma, with a history of vision loss and multiple eye surgeries. He reported no vision in his right eye, as well as increased ocular pressure, and blurred vision when his blood sugars go up. The Veteran was diagnosed with advanced glaucoma, as well as neovascularized opacified cornea of the right eye, and pseudoaphakia. The examiner reported that glaucoma has not been scientifically linked to diabetes and therefore, she concluded that the Veteran's disability was less likely than not caused or exacerbated by the Veteran's service connection diabetes mellitus. She also opined that the Veteran's neovascularized opacified cornea was most likely that result of continued ocular inflammation associated with glaucoma and ocular treatments and that his pseudoaphakia is the result of cataract extraction. However, the examiner did note that the Veteran's service connected diabetes mellitus does effect the Veteran's ability to heal following ocular procedures. In an April 2012 addendum, the examiner explained that "there is no current evidence to support the development of glaucoma from service related activities. It is therefore less likely than not that [the Veteran's] glaucoma was caused by or related to his service activity." She further clarified that there was no medical evidence showing that diabetes mellitus worsens glaucoma. Therefore, she concluded that it is less likely than not that the Veteran's glaucoma was permanently aggravated by his service connected diabetes mellitus. She again noted that the Veteran's ability to heal following ocular procedure would be affected, and stated that the Veteran's diabetes mellitus "did impact his present condition, the loss of vision, and an opacified cornea." However, in an August 2012 addendum, she made it clear that while the Veteran's diabetes mellitus would impact the Veteran's ability to heal following an injury or surgical procedure, it would not permanently aggravate his condition. Based on all the above evidence, the Board finds that entitlement to service connection for bilateral glaucoma, or any other eye disability, is not warranted. There is no evidence that the Veteran's glaucoma had onset in service, and glaucoma is not one of the diseases for which service connection can be granted on a presumptive basis due to herbicide exposure. Additionally, the Board finds that the preponderance of the evidence is against a finding that the Veteran's glaucoma was caused or permanently aggravated by the Veteran's active military service, including his exposure to Agent Orange and his service connected diabetes mellitus. While the Veteran's eye surgeon, Dr. R.B., suggests in a December 2005 letter that the Veteran's glaucoma was caused or permanently aggravated by his in service exposure to Agent Orange, he does not provide any rationale for this opinion, such as referral to a journal article or medical text documenting a relationship between exposure to Agent Orange. A medical opinion that contains only data and conclusions is accorded no weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). All the VA examiners who have addressed the issue have concluded that it is less likely than not that the Veteran's bilateral glaucoma was caused or permanently aggravated by the Veteran's Agent Orange exposure or by his service connected diabetes mellitus. Both Dr. T.F., the VA optometrist who completed the April 2006 addendum, and Dr. Dr. E.G., the VA optometrist who completed the May 2011 examination and subsequent addendums, noted the absence of any known scientific relationship between glaucoma and Agent Orange or diabetes mellitus as a rationale for their conclusions. While the May 2011 VA examiner did note that the Veteran's diabetes mellitus makes him slower to heal and increases his risk of surgical complications, which could affect the Veteran following an ocular procedure, she was clear that his diabetes mellitus does not permanently worsen his glaucoma. In cases such as this, where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the U.S. Court of Appeals for Veterans Claims (Court) stated: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the Board finds that the opinions of the VA examiners have greater weight, as a detailed rational for the May 2011 VA examiner's conclusions was provided. In contrast, the Veteran's private physician offered no rationale for his conclusions. The Board has also considered the lay testimony of the Veteran, including his claims that when his blood sugar goes up, his vision blurs. However, the Veteran is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has glaucoma due to his alleged herbicide exposure in service or as secondary to his service connected diabetes mellitus is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. Finally, the Board has considered whether service connection could be granted for any other eye disability. According to the Veteran's May 2011 VA examination, in addition to his glaucoma, the Veteran also suffers from a neovascularized opacified cornea of the right eye and pseudophakia. However, the VA examiner opined that the neovascularized opacified cornea is most likely the result of continued ocular inflammation associated with the Veteran's glaucoma (which the Board has determined is not service connected)while his pseudophakia is the result of cataract extraction and is not caused or permanently aggravated by the Veteran's diabetes mellitus. Accordingly, for all the above reasons, entitlement to service connection for bilateral glaucoma is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by letters sent to the Veteran in June 2005, May 2006, and April 2011. These letters informed the Veteran of what evidence was required to substantiate his claim, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. However, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) 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 an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of a letter sent to the appellant in May 2006 and April 2011. Although the notice letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of her or his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a supplemental statement of the case issued in October 2011 after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records and records from the Social Security Administration (SSA). The Veteran submitted private treatment records. The appellant was afforded a VA medical examination in October 2005, with addendum opinions in December 2005 and April 2006 and another VA examination in May 2011, with addendum opinions in April 2012 and August 2012. The May 2011 examination and addendums are adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinions rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for bilateral glaucoma, to include as secondary to service connected diabetes mellitus is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs