Citation Nr: 1323281 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 05-06 377A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for glaucoma, including as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from February 1964 to January 1966 and from July 1977 to January 1987, including combat service in the Republic of Vietnam and his decorations include the Purple Heart Medal and the Combat Infantryman Badge. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied service connection for glaucoma. This case was previously before the Board in May 2009 and December 2010, at which time it was remanded for further development. Moreover, in July 2012 the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The opinion was received in December 2012. Thereafter, the Board requested clarification of the December 2012 VHA opinion, and such clarification was provided in February 2013. In March 2013, the Board informed the Veteran that it had requested a specialist's opinion in conjunction with his appeal, provided him a copy of that opinion and indicated that he was entitled to submit additional evidence or argument within 60 days of the date of that letter. A response was received from the Veteran in April 2013 and from his accredited representative in May 2013. FINDINGS OF FACT The competent medical and other evidence of record reflects the Veteran's glaucoma has been aggravated by his service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for a grant of service connection for glaucoma, as secondary to service-connected diabetes mellitus, are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012), 3.310 (2006); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS For the reasons stated below, the Board finds that service connection is warranted for the Veteran's glaucoma. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Board notes that it has thoroughly reviewed the record in conjunction with this case. 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 submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that 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). 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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, 1376-77. 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). Moreover, the United States Court of Appeals for Veterans Claims (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). 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 v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran essentially contends that his glaucoma developed as a result of active service, and/or as secondary to his service-connected diabetes mellitus. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may be granted for disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran filed this claim in July 2003. Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to codify the Court's holding in Allen, which relates to secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service-connected disability. See 71 Fed. Reg. 52744 (2006). The amendment essentially requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. The amendment to 38 C.F.R. § 3.310 is not liberalizing and the Board will apply the criteria set forth in the former regulation. Vision loss - a refractive error of the eye - is one of the specific conditions that VA does not grant service connection for, as it is not considered a disability for VA purposes. See 38 C.F.R. §§ 3.303(c), 4.9. Such a condition is part of a life-long defect, and is normally a static condition which is incapable of improvement or deterioration. See VAOGCPREC 67-90 (1990). Therefore, while the Veteran is competent to describe vision problems, the Board finds that competent medical evidence is necessary to determine whether he has an acquired eye disorder, and, if so, whether such is due to his active service and/or as secondary to a service-connected disability. The record reflects there are multiple findings in the competent medical evidence on file regarding the nature and etiology of the Veteran's vision problems. For example, his service treatment records show that in September 1964 an ophthalmologic examination revealed that the Veteran needed glasses. An April 1976 service treatment record reflects that the Veteran had a two-day history of irritation of the right eye and that the examination revealed that he had a small foreign body. The physician reported that attempts to remove with irrigation and needle were unsuccessful; the diagnosis was foreign body right eye. An entry dated later that same day shows that the examiner reported that the Veteran had an object enter his right eye near the site of "fire previous day in the field." A September 1976 service treatment record indicates that the Veteran complained of reduced distance vision and that the examiner reported that the Veteran's maculas were "very red" bilaterally. The provisional diagnosis was rule out macular hemorrhages. The examination revealed a hyperplastic lesion in the choroidal vessels. The impression was hyperplastic scar of the right eye of questionable etiology and that it was unclear whether it was hyperplasia versus old trauma. A July 1983 service treatment record states that the Veteran had probable solar burns in both eyes. The examiner indicated that the Veteran had a small lesion in his central macula in the right eye that was very darkly pigmented. The examiner noted that the Veteran's left eye also had the same pigmentation. An October 2003 VA eye examination report states that the Veteran was diagnosed as having glaucoma in 2001 and that he treated the condition with Xalatan ophthalmic drops. Following the examination, the physician diagnosed the Veteran as having glaucoma, myopia and presbyopia. The November 2009 VA examiner noted that the Veteran had three to four eye examinations during service, the first of which was provided due to complaints of decreased vision and a need for glasses. The VA examiner also stated, however, that an in-service treatment record noted the Veteran had a change in the right eye on the macula, and questionably a scar or an "RPE" hyperplastic lesion with possibly some changes to it. In concluding that it was less than likely that the Veteran's glaucoma was related to service, noting no in-service trauma, it was noted that the in-service changes/findings may represent the development of glaucoma during service. The January 2011 VA examiner stated that the Veteran's glaucoma was not incurred or aggravated during service noting that it was primary open-angle glaucoma consistent with age. The examiner added that the loss of neural retinal rim is consistent with the Veteran's history of having been diagnosed approximately 25 years earlier. In a November 2011 addendum to a VA examination report, the physician indicated that he agreed with the impressions offered by the November 2009 VA examiner. In the December 2012 VHA opinion, the examiner stated, in pertinent part, that none of the eye conditions the Veteran suffered in service were at least as likely as not the cause of nor did they aggravate his glaucoma. Hence, there was no direct service connection. In view of the foregoing, the Board finds that the preponderance of the competent medical evidence is against a finding that the Veteran's glaucoma was incurred in or otherwise the result of his active service. Simply put, as detailed above, all of the competent medical care personnel who have addressed this claim have promulgated opinions against direct service connection. With respect to the issue of secondary service connection, however, the Board notes that while the VHA opinions of December 2012 and February 2013 contain opinions against the glaucoma being caused by the service-connected diabetes mellitus, the examiner did find that the glaucoma was aggravated by the diabetes. Specifically, in the February 2013 opinion, the examiner states that it is just as likely as not (50/50) that the Veteran's diabetes aggravated his glaucoma, noting that diabetes was a risk factor in the development of glaucoma as well as an aggravating factor in glaucoma. Moreover, as discussed above, because this claim has been pending since July 2003 the revised criteria set forth in 38 C.F.R. § 3.310 do not apply and a baseline level of disability is not required. The examiner who promulgated the December 2012 and February 2013 VHA opinions is presumed to be competent to provide such opinions, and is shown to be aware of the Veteran's medical history from review of his VA claims folder. Further, no competent medical evidence is of record which refutes the finding of secondary aggravation in the February 2013 VHA opinion. Moreover, in Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Further, in Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. See also 38 C.F.R. § 3.102. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for glaucoma on the basis of secondary aggravation by his service-connected diabetes mellitus. See Allen. ORDER Service connection for glaucoma, as secondary to service-connected diabetes mellitus, is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs