Citation Nr: 1318511	
Decision Date: 06/06/13    Archive Date: 06/11/13

DOCKET NO.  04-38 945	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for an eye disorder, claimed as secondary to service-connected diabetes mellitus.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Christine C. Kung, Counsel


INTRODUCTION

The Veteran served on active duty from January 1956 to January 1976.

This matter comes on appeal before the Board of Veterans' Appeals (Board) from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

In August 2009, the Board denied the claim.  The Veteran appealed to the Veterans Claims Court.  In July 2010, the Court Clerk granted a Joint Motion for Remand (JMR) which vacated the Board's decision and remanded the appeal for action consistent with the JMR.  

Of note, the Board remanded the issue in December 2007, December 2010, and November 2012, obtained VA examination reports in November 2002, August 2008, and January 2011, a VHA report in June 2009, and two addendum medical opinions in April 2012 and November 2012.  Therefore, the claim is again ready for adjudication. 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  Neither glaucoma nor cataracts were noted during active duty or for many years thereafter.  

2.  The Veteran's glaucoma and cataracts are not related to service or to service-connected diabetes mellitus.  


CONCLUSION OF LAW

An eye disorder was not incurred in or aggravated by active duty, and is not proximately due to service-connected disability.  38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  

Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes.  For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.

Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  In this case, continuity of symptoms is required.  The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013).

In this case, the Veteran has been diagnosed with glaucoma and cataracts.  These are not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply.  

Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service.  Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  

While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  In this case, as above, neither glaucoma nor cataracts are listed in 38 C.F.R. §§ 3.307, 3.309(a); therefore, the one-year presumption does not apply.  

Finally, service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  This has been interpreted as a three-element test based on nexus: (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 in or aggravated by service.  See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).  

In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310.  Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated.  Allen v. Brown, 7 Vet. App. 439 (1995).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  Id.  

The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006.  Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected.  As the claim has been on appeal since 2004, the amendment is not applicable to the current claim. 

In this decision, the Board has considered the lay evidence as it pertains to the issue.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  

"Competent medical evidence" means that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  

A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation).  

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").  

In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).  

With respect to evaluating the medical evidence, generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file.  Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  

Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

Medical evidence that is speculative, general or inconclusive in nature cannot support a claim.  Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996).  A physician's statement framed in terms such as "may" or "could" is not probative.  See Warren v. Brown, 6 Vet. App. 4, 6 (1993).

A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board has reviewed all of the evidence in the Veteran's 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 the claim.  

The Veteran has been service-connected for diabetes mellitus since a rating decision in February 2003, although the disorder itself has been manifest since at least as early as October 1996.  When he submitted a claim for entitlement to service connection for an eye disorder in March 2002, he asserted that it was a secondary result of his service-connected diabetes mellitus.  As his diabetes is now service-connected, the Board will consider the eye disorder claim on both a direct and secondary basis.

As the Veteran primarily attributes his eye disorder to his diabetes mellitus, the Board considers this aspect first.  In this case, the treatment records reflect that he has been regularly treated for cataracts and chronic open angle glaucoma (COAG) with damage to the optic nerve in the left eye since at least October 1995.  However, none of these treatment records attribute either of his eye disorders to diabetes mellitus.  

In November 2002, the Veteran underwent a VA examination and was diagnosed with COAG in both eyes and a cataract in the right eye; however, no evidence of diabetic retinopathy was observed.  At that time, the examiner did not offer an opinion as to whether either of these disorders was due to diabetes mellitus.  

Pursuant to a December 2007 remand, the Veteran underwent a second VA examination in August 2008.  There, the examiner diagnosed cataracts and refractive error with blurry vision; otherwise, the eye examination was substantially normal.  The examiner opined that it was less likely than not that blurry vision was a result of diabetes.  Rather, the examiner attributed the complaints of blurry vision to a shift in eyeglasses prescription.  

The examiner acknowledged that diabetes mellitus was thought to have some association with advancing cataracts, "this theory has been unproven to this point."  Based on the JMR, the Board sought further clarification on the theory of aggravation between cataracts and diabetes mellitus.  Significantly, in the most recent medical addendum, the examiner noted:

Cataracts appear to have first been noted around 2001 and appear to be typical age-related variety.  There do not appear to be any documented findings that indicate the patient's cataracts are anything other than typical, age-related findings and they appear to have matured at a typical pace, although this can vary greatly.  So I would confirm the original conclusion that it is less likely than not that the cataracts are related to the diabetes mellitus.

While the examiner did not specifically use the specific language that cataracts were not aggravated by diabetes, a reasonable reading of the opinion is that the Veteran's cataracts are not related to anything but age.  

As to glaucoma, in June 2009, an eye specialist provided the opinion that was "very unlikely" that glaucoma was due to diabetes mellitus.  In arriving at this opinion, the specialist noted that the Veteran showed no notable glaucoma progression from 1997 to 2002, his pressure readings were well controlled, and an MRI ruled out any orbital or optic nerve lesions.  While the specialist pointed out that diabetes can cause one type of glaucoma (known as neovascular glaucoma), the clinical records did not indicate any evidence of this disorder.  

A reasonable reading of this opinion is that the type of glaucoma that the Veteran has been diagnosed with (COAG) is not attributable to diabetes mellitus.

This opinion is further supported by addendum opinions in April 2012 and November 2012 from an optometrist and physician, respectively.  Both note that some research has shown that diabetes is protective for glaucoma because of the lack of vascular changes in the retinal blood vessels minimizes the potential for diabetes-related complications.   

These opinions support the proposition that not only is glaucoma not aggravated by service-connected diabetes but that diabetes may actually help protect against glaucoma.  This is the exact opposite of the Veteran's contentions in support of the claim.

The Board finds that the VA examinations and the specialist's opinions are adequate for evaluation purposes.  Specifically, the examiners reviewed the claims file, interviewed the Veteran, and conducted a physical examination.  While the specialist did not examine the Veteran herself, the record (which she reviewed) was sufficient for her to provide an adequate opinion.  

There is no indication that the examiners/reviewer was not fully aware of the Veteran's past medical history or that they misstated any relevant fact.  Therefore, the Board finds the opinions from the VA examiners and the eye specialist to be of great probative value.

The Board has also considered the statements by the Veteran asserting that his eye disorders are related to his service-connected diabetes mellitus.  In this case, he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses.  See Layno, 6 Vet. App. at 470.  However, conditions such as cataracts and glaucoma are not disorders that a lay person can provide competent evidence on questions of etiology or diagnosis.  See Robinson v. Shinseki, 557 F.3d 1355 (2009).  

On the other hand, competent evidence has been provided by the multiple medical personnel who have examined or treated the Veteran during the current appeal and by service records obtained and associated with the claims file.  Not a single examiner or reviewer has remotely suggested that glaucoma or cataracts were due to or aggravated by diabetes.  The Board attaches greater probative weight to the clinical findings than to his statements.  See Cartright, 2 Vet. App. at 25.  Therefore, the evidence does not indicate that the Veteran's eye disorders were secondary to or aggravated by service-connected diabetes mellitus.  

Next, the Board will consider whether the Veteran's eye disorders are attributable to active duty service on a direct basis.  On this matter, the service treatment records indicate that, in August 1969, he complained of slight pain in his left eye; however, no follow-up treatment was noted.  Next, in December 1971, an eye examination revealed corneal abrasions, leading to a diagnosis of herpetic corneal keratitis.  COAG or cataracts, however, were not noted at that time.  

In any event, a physical examination in May 1972 indicated that this corneal eye disorder had resolved with no complications or sequelae.  Finally, another physical examination in May 1975, the most recent prior to the Veteran's retirement the following year, did not note any eye-related disorders.  

Next, post-service evidence does not indicate the presence of an eye disorder until October 1995.  The Board emphasizes the multi-year gap between discharge from active duty service (1976) and the first indications of an eye disorder in 1995 (a 19 year gap).  Moreover, the evidence does not attribute the Veteran's eye disorders to active duty.  Significantly, no treating or examining health care professional has ever established or suggested such a relationship and the Veteran has ever asserted one.  Therefore, the evidence does not support a finding of medical nexus.

In sum, in the absence of any complaints during service or for many years thereafter, and no nexus between current complaints and active duty, the evidence does not support a grant of service connection on a direct basis.  

In light of the above discussion on secondary, aggravation, and direct theories of entitlement, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved.  As such, the appeal is denied.

Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and medical or lay 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies.  See 38 U.S.C.A. § 7261(b)(2) (West 2002).  In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

Here, the VCAA duty to notify was substantially satisfied by way of a letter sent to the Veteran in June 2002 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter.  The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  

The June 2002 letter did not provide notice of secondary service connection regulations contained in 38 C.F.R. § 3.310 (2008), as he was not service connected for any disorder at the time of his original claim.  However, the Board concludes that the Veteran was not prejudiced by this notice defect.  Specifically, he was subsequently informed of what was required to support a claim for an eye disorder to include as secondary to his service-connected diabetes mellitus.  

Moreover, his statements in his February 2004 notice of disagreement indicate that he understood what he was required to show to support this claim.  Thereafter, the claim was readjudicated in September 2004 and February 2009.  Therefore, the Board concludes that he was not prejudiced by the lack of this notice in the June 2002 letter.

With respect to the Dingess requirements, the Veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal.  However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claim for service connection.  Any questions as to the appropriate disability rating or effective date to be assigned are moot.  

Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  
 
Next, VA has a duty to assist a veteran in the development of the claim.  This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2008). 

In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  

With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  First, the RO has obtained VA outpatient treatment records and service treatment records.  Moreover, the Veteran submitted private treatment records.    

Next, specific VA medical opinions pertinent to the issue on appeal were obtained in November 2002, August 2008, January 2011, April 2012, and November 2012.  Additionally, an eye expert submitted an additional opinion in June 2009.  Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim.  

Significantly, neither the Veteran nor his 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 is required to fulfill VA's duty to assist 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).  Of note, due process notice was not challenged as part of the July 2010 JMR.


ORDER

Service connection for an eye disorder, claimed as secondary to service-connected diabetes mellitus, is denied.



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs