Citation Nr: 1304541 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 05-14 297 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for glaucoma of the left eye. 2. Entitlement to service connection for loss of vision of the left eye, to include anisometropia (unequal refractive power of the eyes). 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Nebraska Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Diliberto, Counsel INTRODUCTION The Veteran had active service from July 1979 to July 1982. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, that denied the benefits sought on appeal. The Veteran appealed that decision and the case was referred to the Board for appellate review. In July 2006 the Veteran testified at a Travel Board hearing before an Acting Veterans Law Judge. Unfortunately, a transcript of that hearing could not be produced. The Veteran was afforded a videoconference hearing in March 2007. A transcript from those proceedings is of record and has been associated with the claims file. The Acting Veterans Law Judge who conducted the hearings is no longer with the Board. The Veteran was afforded the opportunity to testify at an additional hearing in accordance with 38 C.F.R. § 20.707, but he declined. The Veteran's claim first came before the Board in May 2007, at which time entitlement to service connection for the issues on appeal was denied. The Veteran appealed the May 2007 Board determination to the United States Court of Appeals for Veterans Claims (Court). In May 2008 the Court issued an order granting the parties' Joint Motion for Remand (Joint Motion), vacating the Board's decision and remanding the case back to the Board for compliance with the Joint Motion. Accordingly, the claim came before the Board again in June 2008, at which time it was remanded for additional development. In April 2010 the Board issued another decision denying the Veteran's claims. The Veteran once again appealed that determination to the Court, which, in October 2011, issued a single-judge Memorandum Decision vacating the Board's determination and remanding the claim to the Board for further development and adjudication. Most recently, the Veteran's claim was before the Board in March 2012. At that time, the Board once again remanded the Veteran's claims for additional development. The requested development on the issues decided in this decision has now been completed, and no further action is necessary to comply with the Board's remand directives on those issues. Stegall v. West, 11 Vet. App. 268 (1998). However, the issues of entitlement to service connection for bilateral hearing loss and tinnitus still require further development. Accordingly, those issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if additional actionis required on his part. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran does not have glaucoma of the left eye that began in service or has been shown to be causally or etiologically related to service. 2. The Veteran does not have loss of vision of the left eye, to include anisometropia, that began in service or has been shown to be causally or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for glaucoma of the left eye have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for service connection loss of vision of the left eye, to include anisometropia, have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has claimed entitlement to service connection for glaucoma of the left eye and loss of vision of the left eye, to include anisometropia (unequal refractive power of the eyes). In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). If there is no showing of a resulting chronic disability during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). To prove service connection, the record must contain: (1) evidence of a current disability, (2) evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of injury or disease, and (3) evidence of a nexus or relationship between the current disability and the in-service disease or injury. Coburn v. Nicholson, 10 Vet. App. 427 (2006); Disabled American Veterans v. Secretary of Veterans Affairs, 419 F.3d 1317 (Fed. Cir. 2005). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must assess the credibility and weight of all the 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. Masors v. Derwinski, 2 Vet. App. 181 (1992). 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. The Veteran first claimed entitlement to service connection for the disabilities currently at issue in September 2002. In a March 2005 rating decision the RO denied entitlement to service connection for those conditions. The Veteran submitted a Notice of Disagreement (NOD) in April 2005. The RO issued a Statement of the Case (SOC) in May 2005 and the Veteran filed a Substantive Appeal (VA Form 9) in June 2005. The Veteran's claim first came before the Board in May 2007, at which time it was denied. The Veteran appealed the May 2007 Board determination to the Court. In May 2008 the Court issued an order granting the parties' Joint Motion for Remand (Joint Motion), vacating the Board's decision and remanding the case back to the Board for compliance with the Joint Motion. Accordingly, the claim came before the Board again in June 2008, at which time it was remanded for additional development. In April 2010 the Board issued another decision denying entitlement to service connection for the claimed disabilities. The Veteran once again appealed that determination to the Court, which, in October 2011, issued a single-judge Memorandum Decision vacating the Board's determination and remanding the claim to the Board for further development and adjudication. Most recently, the Veteran's claim was before the Board in March 2012. At that time, the Board once again remanded the Veteran's claim for additional development. The requested development on the claims of entitlement to service connection for left eye glaucoma and left eye vision loss has now been completed, and no further action is necessary to comply with the Board's remand directives on those issues. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, those issues are properly before the Board for appellate review. The relevant evidence of record on the Veteran's claims of entitlement to service connection for glaucoma of the left eye and loss of vision of the left eye includes service treatment records, VA treatment records, VA examination reports, private treatment records, records from the Social Security Administration and both written and oral statements from the Veteran. The Veteran's service treatment records are entirely negative for any findings, treatment or diagnoses related to glaucoma or any other type of eye disorder. Those records do indicate that the Veteran had 20/20 corrected vision in both eyes. It was observed that the Veteran's left eye was becoming nearsighted and that there was a difference in the visual acuity between the eyes without correction. Anisometropia of the left eye was diagnosed. Though undated, a dilated fundus examination indicating that the Veteran was 21 years old revealed normal external and internal findings. There was no evidence of trauma or injury to the eye and no reports of uveitis, glaucoma or cataract. VA treatment records dating back to March 1985 show treatment for left eye pain and redness; this was diagnosed as chronic untreated iritis. In May and June of 1985 the Veteran was noted as having been seen for follow-up of that condition, with additional findings of vascularization of the cornea and bilateral uveitis. Records from July 1985 indicate that the Veteran reported having sudden onset left eye pain dating back approximately 6 months. He was diagnosed with uveitis, granulomous in nature. It was also noted that the Veteran had marked synechia and scarring in the left eye. Notable debris was present in the anterior vitreous of the left eye. Private treatment records from June 1998 indicate that the Veteran had cataract surgery 13 years earlier. The Veteran reported a history of uveitis and swelling in the left eye for 15 years. Examination revealed visual acuity in the left eye such that the Veteran was only able to count fingers at 1 foot. Anterior segment exam showed that the cornea had pigmentary debris in the periphery of the left eye with peripheral anterior synechiae. No cell in the left eye was noted and the iris had some posterior synechiae to the anterior hyaloids face. The left eye was aphakic. Dilated exam of the fundus revealed a poor view of the optic nerve secondary to vitreous haze. B scan showed vitreous debris with no evidence of retinal detachment. The evaluating provider's impression was a history of uveitis with vitreous debris and aphakia. Subsequent private treatment records indicate that the Veteran was being followed for glaucoma of the left eye. In his September 2002 claim the Veteran stated that his glaucoma began in April 1986. In January 2005 the Veteran was afforded a VA examination in support of his claim. During that examination the Veteran stated that he had cataract surgery in the 1980s. He reported that his left vision is such that he is only able to see gross lights and shapes. Physical examination revealed right eye vision correctable to 20/20 for both near and far vision. The left eye was limited to light perception for both near and far vision. The left cornea had near complete opacification with minimal iris details visible. The iris on the left appeared irregular with several areas of what appeared to be lens remnants. There was no view of the fundus of the left eye. The examiner's assessment was legal blindness in the left eye secondary to cataract surgery and increased inflammation and intraocular pressure following the cataract surgery. In March 2007 the Veteran testified at a hearing before an Acting Veterans Law Judge. During that hearing the Veteran reported that he had a decrease in vision during service and that he went to see a physician for problems with his left eye approximately eight to nine months after being released from active service. He reported being told that he had swelling in the back of his eye and that he had to have surgery approximately two to three years after being released from active service. He also stated that he requires constant treatment to stop his glaucoma from spreading to his right eye. The Veteran was afforded an additional VA examination in support of his claims in October 2008. The examiner noted private treatment records from 1998 which indicated that the Veteran had persistent panuveitis in the left eye that required a subtenon injection of kenalog. The examiner observed that the Veteran's glaucoma had its onset in 2000, that the Veteran has been on glaucoma drops since that time and that the condition has been stable. Physical examination revealed that vision in the left eye was limited to light perception. A scotoma was noted, but the examiner was unable to do visual field testing due to the Veteran's vision limitation. The examiner assessed the Veteran with corneal opacification of the left eye, primary open angle glaucoma of the right eye, a mild age-related nuclear sclerotic cataract of the right eye, aphakis of the left eye and a history of non-granulomous uveitis of the left eye. The examiner stated that a determination as to the etiology of the Veteran's uveitis and cataract could not be made based on the available records. He did state that the Veteran's cataract is more likely than not related to his history of uveitis. The examiner also found that it was not unlikely that the Veteran did have glaucoma in the left eye at some point due to either chronic steroid use or aphakia. The examiner concluded by stating that she could not adequate state whether the diagnosed disabilities began during service or were a consequence of service. In a June 2009 addendum the examiner indicated having reviewed newly obtained treatment records. She noted that those records document a bilateral granulomous uveitis first diagnosed in July 1985, with symptoms first occurring in January 1985. She observed that no etiology was found at that time, but that the Veteran had undergone topical prednisolone forte drops and subtenons injections of kenalog due to persistent inflammation. She again found that she could not adequately state whether the diagnosed disability began during service or was a consequence of service. The Veteran's most recent VA examination was performed in April 2012. In her report the examiner noted that the Veteran had been diagnosed with status post enucleation OS, primary open angle glaucoma OD and nuclear sclerotic cataract OD. A history of corneal opacification and aphakia related to a history of non-granulomatous uveitis OS prior to enucleation was also noted. The examiner observed that since the October 2008 VA examination the Veteran had had his left eye enucleated as it was blind and painful. Physical examination of the right eye revealed corrected vision of 20/40 or better for both distance and near vision. The examiner diagnosed the Veteran with a right eye cataract and open-angle glaucoma of the right eye without decrease in visual acuity or other visual impairment. She noted that the cataract was age-related and not visually significant. The examiner found that the Veteran's left eye glaucoma and left eye vision loss were less likely than not incurred in or caused by the claimed in-service injury, event or illness. In so finding, the examiner noted that an in-service ocular examination was normal and that there were no reports of trauma or injury to the eye and no evidence of uveitis, glaucoma or cataract in service. Noting the Veteran's in-service finding of anisometropia, the examiner indicated that this was a refractive error that has no association with any other ocular condition demonstrated by the Veteran, including uveitis, glaucoma and cataracts. In reviewing the evidence of record, the examiner noted that the Veteran's uveitis from 1985 was found to be idiopathic. She stated that the Veteran's uveitis likely eventually led to the development of a cataract which was removed in 1987. The examiner also stated that the Veteran's glaucoma, diagnosed in 2000, was likely due to either the uveitis, chronic steroid use, aphakia or a combination of all three. Nevertheless, the examiner stated that each of those causes was less likely than not a result of the Veteran's period of service and was less likely than not aggravated during the Veteran's service. Records received from the Social Security Administration show treatment for glaucoma, uveitis and aphakia consistent with those records discussed above. None of those records relate to the etiology of those conditions. After a thorough review of the entirety of the evidence of record, the Board finds that there is a preponderance of evidence against the Veteran's claims, and that entitlement to service connection for glaucoma of the left eye and loss of the vision of the left eye, to include anisometropia, is not warranted. To establish service connection for the claimed disability on a direct basis, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the two. Although the evidence of record reveals that the Veteran had left eye glaucoma prior to the enucleation of that eye, the claim fails because of the lack of evidence of a nexus between the disabilities present prior to loss of the left eye and an in-service incurrence or injury. In so finding, the Board cites the numerous VA examinations of record, most notably the examination performed in April 2012. Specifically, the Board noted that the examiner who conducted that examination considered the entirety of the evidence of record, including service treatment records reflecting that the Veteran had a refractive error that warranted the prescription of military glasses. The examiner noted that this refractive error, diagnosed as anisometropia, had no relation to the Veteran's glaucoma, uveitis or cataract. The report included a thorough review of the evidence and a well-reasoned medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The Board has considered the Veteran's assertions and acknowledges that he is competent to testify as to symptoms which are non-medical in nature or which come to him through his senses, such as the occurrence of an event or injury in service. However, individuals without training are not competent to provide evidence as to more complex medical questions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is not shown to have medical training and expertise, and so cannot provide a competent opinion on a matter as complex as the existence of a specific disability affecting his eye or the etiology of any such condition. Even according the Veteran's assertions some probative value, they are outweighed by the objective medical evidence provided by trained medical professionals indicating that the Veteran's left eye disabilities are not related to his period of service or any injury or event therein. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA. 38 U.S.C.A. § 5107(a) (West 2002). The Veteran was clearly advised of the need to submit medical evidence of the existence of the disabilities claimed and a relationship between those disabilities and the Veteran's period of service. The most persuasive and probative evidence of record fails to demonstrate that the Veteran's left eye disabilities are related to his period of service or any injury or event therein. In sum, the Board finds that there is a preponderance of evidence against a grant of service connection for glaucoma of the left eye or left eye vision loss. As there is a preponderance of evidence against the claims they must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duty to Assist The Board is required to ensure that the VA's duty to notify and duty to assist obligations have been satisfied. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was met by letters from the RO to the Veteran dated in October 2004 and October 2006. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required, as indicated under the facts and circumstances of this case. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). In addition, the Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal and has not argued that any errors or deficiencies in the accomplishment of the duty to notify or the duty to assist have prejudiced the Veteran in the adjudication of his appeal. The Veteran has been afforded several VA examinations on the issues under review during the course of his appeal. The Board observes that the Court, in its October 2011 single-judge Memorandum Decision, found that earlier VA examinations had failed to adequately discuss the Veteran's service treatment records. The report from the most recent VA examination, performed in April 2012, show that the examiner thoroughly reviewed the Veteran's medical records, recorded his current complaints, conducted appropriate physical examinations and rendered diagnoses and opinions consistent with the remainder of the evidence of record and pertinent to the rating criteria. Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). According, VA has met the duty to assist. ORDER Entitlement to service connection for glaucoma of the left eye is denied. Entitlement to service connection for loss of vision of the left eye, to include anisometropia (unequal refractive power of the eyes), is denied. REMAND The Veteran has also claimed entitlement to service connection for bilateral hearing loss and tinnitus. Unfortunately, these claims must again be remanded. Although the Board sincerely regrets the additional delay, adjudication cannot proceed without further development. As a preliminary matter, the Board notes that with respect to hearing loss, VA has specifically defined what is meant by a "disability" for the purposes of service connection. See 38 C.F.R. § 3.385 (2012). "[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent." The Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in its October 2011 single-judge Memorandum Decision, found that the VA examinations performed prior to that time had failed to adequately take into consideration the Court's decision in Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In Hensley, the Court determined that normal hearing at separation does not preclude service connection for a current hearing disability. Moreover, the Court noted that the Board had failed to ensure compliance with its June 2008 remand order. The Court has held that the Board is obligated by law to ensure that the RO complies with its directives; and where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In June 2008 the Board remanded the claims for a new VA audiological examination to determine the etiology of the Veteran's bilateral hearing loss and tinnitus. The Board directed the examiner to "specifically comment on the service medical records" and the Veteran's "complaints of in-service exposure to loud noise from artillery and explosions" and to provide a "complete rationale" for any opinions offered. The examination report obtained did not fulfill those requests. In March 2012 the Board again remanded the Veteran's claims, requesting that a VA examination be performed and that the examiner should elicit a personal history concerning the Veteran's hearing loss and tinnitus symptomatology and treatment and note that the Veteran's personal statements have been considered. The examiner was also instructed to specifically comment on the service treatment records and take into consideration the Veteran's complaints of having been exposed to acoustic trauma in the form of loud noise from artillery and explosions in service during his military occupational specialty as a rifleman, noting that the Board had found those assertions to be credible. The resultant VA examination, performed in April 2012, was inadequate. Specifically, the Board notes that the examiner did not indicate having taken into consideration the Veteran's complaints of having been exposed to acoustic trauma in service. While the examiner did record these assertions, she did not comment on their relevance or significance. The examiner's opinion, as evidenced by a June 2012 addendum to the examination report, appears to be based entirely on the lack of demonstrated hearing loss at separation from service. Such a finding is in direct conflict with the Court's determination in Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As noted above, in Hensley, the Court determined that normal hearing at separation does not preclude service connection for a current hearing disability. The examiner also appears to have based her conclusion that the Veteran's hearing loss was less likely than not caused by or a result of military noise exposure primarily on a finding that the Veteran does not currently demonstrate a hearing loss disability for VA compensation purposes. While the existence of a current disability is the cornerstone of a claim for VA disability compensation, the Court has held that this requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolved prior to the Secretary's adjudication of the claim. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board acknowledges that a hearing loss disability as defined for VA compensation purposes was not demonstrated during the April 2012 VA examination. However, findings referenced in the VA examination from January 2005 are sufficient to constitute a hearing loss disability. The Board is unable to reconcile these findings without further development of the record. Accordingly, the RO/AMC should schedule the Veteran for another VA examination in support of his claims. The Board requests that the examination be scheduled with a different examiner, if possible. The case is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA audiological examination in support of his claims of entitlement to service connection for bilateral hearing loss and tinnitus. The examination should be scheduled with a different examiner than the one who performed the January 2005 and April 2012 examinations, if possible. All indicated tests and studies should be conducted and the claims file should be made available to the examiner for review in connection with the examination. A complete and detailed history should be obtained from the Veteran and recorded in the examination report. After completion of the examination and a thorough review of the record, the examiner should state whether or not the Veteran has a bilateral hearing loss disability for the purposes of VA compensation. The examiner should also state whether or not the Veteran has demonstrated a bilateral hearing loss disability for VA compensation purposes at any time during the course of the appeal. In so stating, the examiner must comment on the January 2005 VA examination, the April 2012 VA examination and any other pertinent evidence of record. For any bilateral hearing loss disability shown during the period on appeal, including tinnitus, the examiner should state whether it is at least as likely as not (i.e., a 50 percent chance or greater) that any such disorder is causally related to service or, for sensorineural hearing loss, developed within one year of separation from service. The examiner should also stated whether it is at least as likely as not that any such disorder was otherwise caused or aggravated by the Veteran's period of service. A complete rationale for all opinion expressed, as well as a discussion of the medical principles involved, must be provided. The RO/AMC should ensure that the examiner report complies with this remand and the questions presented in the RO/AMC's examination request. Specifically, the rationale must include a discussion of the Veteran's service treatment records and the Veteran's complaints of having been exposed to acoustic trauma in the form of loud noise from artillery explosions in service during his military occupational specialty as a rifleman. If the report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. 2. When the requested development has been completed the case should again be reviewed by the RO, to include consideration of any additional evidence submitted. If the benefits sought are not granted the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs