Citation Nr: 1319276 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 09-10 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for open angle glaucoma, to include as secondary to service-connected headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran had active service in the United States Navy from February 1963 to April 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In May 2010 and April 2012, the Veteran testified at a Travel Board hearing at the RO and a video hearing at the RO, respectively, before the undersigned. The transcripts of both hearings are of record. In July 2010 and July 2012, the Board remanded the above stated issue for further development. That development having been achieved, the issue now returns for appellate review. Subsequent to the aforementioned remands, the Veteran submitted additional evidence in support of his claim, along with an appropriate waiver of RO consideration. Therefore, the Board may proceed. See 38 C.F.R. § 20.1304(c) (2012) (any pertinent evidence accepted directly at the Board must be referred to the agency of original jurisdiction (AOJ) for initial review unless this procedural right is waived by the appellant). A review of the Virtual VA paperless claims processing system was conducted. FINDING OF FACT The competent and credible evidence demonstrates that the Veteran has open angle glaucoma that is aggravated by his service-connected headache disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for open angle glaucoma, as secondary to service-connected headaches, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision herein to grant service connection for open angle glaucoma, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2008)) and the implementing regulations. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. However, the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). 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). Alternatively, service connection can be granted on a secondary basis. For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of a service-connected disease or injury or that a service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). With regard to the issue of secondary service connection, the Board notes that in 2006 VA amended 38 C.F.R. § 3.310, the regulation concerning secondary service connection. The intent of the amendment was to conform to the regulation in Allen v. Brown, 7 Vet. App. 439 (1995), the Court decision that clarified the circumstances under which a Veteran may be compensated for an increase in the severity of an otherwise nonservice-connected condition caused by aggravation from a service-connected condition. See 71 Fed. Reg. 52,744 (September 7, 2006). In this regard, 38 C.F.R. § 3.310 was changed to note that aggravation will not be conceded unless the baseline level of severity, of the non-service connected disability, is established by medical evidence. The level of aggravation will be determined by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. That revised regulation, as noted above, implemented the holding in Allen for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service-connected disability. See Allen at 448; 71 Fed. Reg. 52744 (2011). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, at 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Upon weighing the evidence, if there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. 498, at 511, aff'd per curiam, 78 F.3d 604. The Veteran contends that he has various ocular disorders that began during active duty service when he was treated for refractive errors and vision problems. Alternatively, he contends that his ocular conditions are secondary to or aggravated by his service-connected headaches. Initially, the Board notes that the Veteran is currently diagnosed with various eye disorders including primary open angle glaucoma, ocular hypertension, cataract, pterygium, and dry eye syndrome. See December 2011 VA examination report, pg. 2. Therefore, the Board finds that the Veteran has a current disability as required by 38 C.F.R. § 3.303. The Veteran's service treatment records indicated that his vision was normal upon entry into active duty service as noted on his February 1963 entrance examination. The Veteran was seen by an ophthalmologist in June 1963 with a complaint of diplopia (double vision) while reading. He was referred for accommodation and refraction where he was fitted for reading glasses. His April 1965 separation examination noted his vision was normal. The Veteran was afforded a VA examination in December 2011. The examiner noted that the Veteran was diagnosed with ocular hypertension in 2007 and primary open angle glaucoma in August 2009. It was further noted that the Veteran was seeing a private ophthalmologist, Dr. M., for his eye conditions. He further noted that the Veteran was also diagnosed with cataracts, pterygium, and dry eye syndrome. The Veteran reported his current ocular symptoms as blurry, hazy vision both distance and near that was greater in the left eye than in the right. After a thorough physical examination the examiner opined that the Veteran's current eye conditions, including primary open angle glaucoma, ocular hypertension, cataract, pterygium, and dry eye syndrome did not have their clinical onset during the Veteran's active duty service, nor were they related to any in-service disease, event, or injury. While the Veteran did have diplopia (double vision) at near while in service, he was refracted and provided with glasses to correct his symptoms. There was no other documented eye condition while the Veteran was in service. Finally, the examiner noted that the Veteran's vision had continued to get worse after service as a result of his refractive condition which required updates on his glasses. Because the opinion provided only addressed direct service connection and not secondary service connection, the issue was remanded for another examination. The Veteran was afforded another VA examination in August 2012. The examiner noted the Veteran was diagnosed with dry eye syndrome, cataracts, ocular hypertension, primary open angle glaucoma, pterygium, and pseudophakia. The examiner noted that the Veteran was initially diagnosed with ocular hypertension and then subsequently open angle glaucoma. After a thorough physical examination the VA examiner opined that the Veteran's eye conditions were not caused by, or aggravated by his service-connected headache disorder. As rationale, the examiner noted a September 1993 medical study in the Investigative Ophthalmology of Visual Science Journal, titled, "Migraine Headache and Its Association with Open Angle Glaucoma: The Beaver Dam Eye Study," which concluded that in this population study there was no evidence of a relationship between open angle glaucoma and migraine headaches. There was no rationale provided with regard to the Veteran's other eye conditions. The Veteran provided a letter from his treating ophthalmologist, Dr. M., dated August 2012 which described the Veteran's current eye conditions and noted that the Veteran's open angle glaucoma was currently controlled, but that he was bothered by irritation due to dry eyes and ocular surface disease. Dr. M. then noted that it was extremely difficult to determine with accuracy how much of the Veteran's symptoms are aggravated by his service-connected headache disorder, but it was certainly impacting his condition. Therefore, Dr. M. opined that it was reasonable to consider that there was a 50 percent or greater probability that the Veteran's ocular conditions could be aggravated by this service-connected headache disorder. As noted above, 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. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). 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. With consideration of the above, the Board notes that the evidence is at least in equipoise with regard to whether the Veteran's open angle glaucoma is secondarily related to or aggravated by his service-connected headache disorder. The Veteran's private treating ophthalmologist stated that the Veteran's service-connected headaches were certainly impacting his ocular conditions and gave a greater than 50 percent probability that the Veteran's ocular conditions were aggravated by his headaches, providing a positive opinion with regard to aggravation. The Board acknowledges the August 2012 VA examiner's opinion that the Veteran's eye conditions were not caused by, or aggravated by his service-connected headache disorder. While the examiner did cite a medical study to support his opinion, the report was general in nature, noting only that in the particular population reviewed, there was no correlation. The Court has held that medical opinions that are speculative, general, or inconclusive in nature cannot support a claim. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The Board notes the discrepancy in the opinions with regard to whether the Veteran's ocular conditions are aggravated by his service-connected headache disorder. As held by the Court, "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 the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases). Dr. M.'s opinion is based on a thorough medical evaluation and years treating the Veteran for his various eye conditions. With regard to whether the Veteran's headaches aggravate his open angle glaucoma, the Board notes that the evidence is at least in equipoise and as such must grant the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In consideration of all the above, the Board finds that the Veteran does have a current diagnosis of open angle glaucoma, and the evidence is in relative equipoise with regard to the issue of whether the Veteran's current diagnosis is aggravated by his service-connected headache disorder. Given the benefit of the doubt rule, the Veteran's claim must be granted. Gilbert at 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for open angle glaucoma is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs