Citation Nr: 1302145 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 08-27 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for glaucoma. 2. Entitlement to service connection for numbness of the bilateral lower extremities, to include as secondary to service-connected degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from November 1975 to November 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In October 2010, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the Veteran's claims file. The issue of service connection for tinnitus and a rating in excess of 10 percent for a lumbar spine have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of service connection for numbness of the bilateral lower extremities is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The competent and credible evidence of record is in equipoise as to whether glaucoma is related to the Veteran's military service. CONCLUSION OF LAW Resolving the benefit of the doubt in the Veteran's favor, glaucoma was incurred in active duty military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Since the Board is granting service connection for glaucoma, his claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Applicable laws and regulations The Veteran contends that service connection is warranted for his currently diagnosed glaucoma. Service connection may be granted for a 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(a). In order to establish service connection or service-connected aggravation for a present disability, the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d at 1163, 1166-67 (Fed. Cir. 2004). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Analysis The appellant claims that his currently diagnosed glaucoma began during his military service. See October 2010 Board hearing. As noted above, in order to establish service connection, the veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d at 1163, 1166-67 (Fed. Cir. 2004). With respect to Shedden element one, the Board notes that the Veteran has been diagnosed with glaucoma. See February 2010 VA treatment record. Therefore, the Board finds that a current disability is shown by the record. Shedden element (1) is therefore satisfied. With respect to Shedden element (2), in-service incurrence or aggravation of a disease or injury, the service treatment record show that the Veteran was diagnosed with "glaucoma suspect" in May 1990 during an Optometry examination. As such, the Board finds that the record indicates possible symptoms of the disease of glaucoma during service, and that Shedden element (2) is accordingly satisfied. With respect to crucial Shedden element (3), a causal relationship between the present disability and the disease or injury incurred or aggravated during service, resolving all doubt in the Veteran's favor, the evidence of record shows that the Veteran's current diagnosis of glaucoma was incurred during the Veteran's military service. In an October 2007 VA examination report, a VA physician diagnosed the Veteran glaucoma suspect on the basis of asymmetric cupping. The physician did not provide an opinion as to whether any current disorder was related to the Veteran military service, but the examiner noted that the Veteran had been diagnosed with "glaucoma suspect" and followed since early 1990's while still on active duty. The examiner also noted that the Veteran had had minor ocular injury in the military, including multiple corneal foreign bodies and corneal abrasion. Although no opinion was provided in the October 2007 VA examination report, there are two opinions, dicussed below, included in the Veteran's claims file which explain whether a causal relationship exists between the Veteran's military service and his current disability. A February 2010 VA treatment record notes an opinion by the treating ophthalmologist that the Veteran had long term glaucoma that may have occurred in the military as the Veteran had complaints in service with eye problems. This ophthalmologist's opinion is speculative in nature as he stated that glaucoma "may have" occurred during the military service. For this reason, the Board affords the opinion little probative weight. In an April 2011 VA examination report, a VA optometrist opined that the Veteran's glaucoma was not caused by his military service. She explained that there was no direct cause that could be attributed to active duty service. Despite this, the examiner noted that the Veteran was diagnosed while on active duty as a glaucoma suspect which has progressed to glaucoma. Even though the examiner stated that there was no direct cause, the examiner appears to believe that there is a link between the Veteran's diagnosis of glaucoma suspect during service and his current diagnosis. For this reason and resolving all doubt in the Veteran's favor, the Board finds the examiner's opinion to be in favor of the Veteran's claim that his current glaucoma began during service. In this case, there are no conflicting medical opinions as to whether the Veteran's glaucoma is related to his military service. As indicated above, the April 2011 examiner found that the Veteran's currently diagnosed glaucoma was not related to the Veteran's military service because there was no direct evidence, but she clarified that his diagnoses of glaucoma suspect noted in service had progressed to glaucoma. In addition, the Board finds the Veteran's assertions to be credible. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (BVA has a duty to assess the credibility and weight of the evidence); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Accordingly, the benefit-of-the-doubt rule is applicable in this case, and a relationship between the Veteran's currently diagnosed glaucoma and his active military service is established. Shedden element (3) is therefore met, and the benefit sought on appeal is allowed. ORDER Entitlement to service connection for glaucoma is granted. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that the issues of entitlement to service connection for numbness of the bilateral lower extremities must be remanded for further evidentiary development. The United States Court of Appeals for Veterans Claims (Court) has determined that a remand by the Board confers upon a claimant, as a matter of law, the right to compliance with remand orders. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). In the January 2011 remand, the Board stipulated that outstanding VA medical treatment records from Central Texas VA Healthcare System should be obtained and associated with the claims file. Specifically, the report and results associated with a July 2009 EMG evaluation was not associated with the claims file. The Board emphasized that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of the VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Board acknowledges that Appeals Management Center obtained a July 21, 2009 EMG/NCV Consult Results. The document notes that the report itself was scanned into Vista Imaging Display. The record notes that it was a "normal study with no electrodiagnostic evidence to support a left cervical radiculopathy." The report also noted tendinitis. As the EMG was originally scheduled to investigate numbness of the Veteran's upper extremities, these results focus on the Veteran's upper extremities. Prior to the July 2009 EMG, the Veteran requested that the EMG also investigate the numbness he was having in his lower extremities. A July 15, 2009 VA record appears to show that an EMG was also ordered for the lower extremities, but without being able view the actual EMG report, it is unclear whether the lower extremities were evaluated and whether the results were normal for the lower extremities as well. For these reasons, the Board finds that the claim must be remanded back so that the July 2009 EMG report can be associated with the claims file or Virtual VA. The April 2011 VA examiner mentioned several radiology reports, a EMG report and treatment records in the examination report but did not mention the July 2009 EMG report. It appears that the examiner may not have had an opportunity to review the EMG report. Therefore, after associating the July 2009 EMG report with the claims file, the claims file should be returned to the April 2011 examiner for an addendum opinion. While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED to the Veterans Benefits Administration (VBA) for the following action: 1. The RO/AMC should contact the Veteran and request information regarding any additional treatment he may have received for his lower extremity numbness. If, after making reasonable efforts to obtain named non-VA records the RO/AMC is unable to secure same, the RO/AMC must notify the Veteran and (a) identify the specific records the RO/AMC is unable to obtain; (b) briefly explain the efforts that the RO/AMC made to obtain those records; (c) describe any further action to be taken by the RO/AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. The RO/AMC should send a duty-to-inform notice to the Veteran pursuant to the Veterans Claims Assistance Act. The notice letter must provide information about the type of evidence necessary to establish service connection for numbness of lower extremities, on a secondary basis (to include as secondary to degenerative changes of the lumbar spine). 3. The RO/AMC should obtain all pertinent VA records, including the July 2009 EMG report that was scanned into Vista Imaging Display and associated it with the claims file or Virtual VA. 4. After all of the above has been undertaken, the RO/AMC should then request an addendum with the April 2011 examiner. The examiner should review all newly received VA records including the July 2009 EMG and specifically comment on the July 2009 EMG report. The examiner should provide an opinion, with supporting rationale, as to whether it is as likely as not that any lower extremity numbness disability had its onset in, or is otherwise related to the Veteran's active duty military service. The examiner is also asked to opine as to whether it is as likely as not that any current lower extremity numbness disability is due to his service-connected degenerative disc disease of the lumbar spine. Please provide a complete explanation for the opinion. The examiner is also asked to opine as to whether it is as likely as not that any current lower extremity numbness disability is aggravated (i.e., worsened) beyond the natural progression by his service-connected degenerative changes of the lumbar spine. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's numbness in lower extremity disabilities found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected degenerative changes of the lumbar spine disability. Please provide a complete explanation for the opinion. 5. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the RO/AMC should readjudicate the Veteran's service connection claim of numbness in the lower extremities. If the claim is denied, in whole or in part, RO/AMC should provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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. 2011). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs