Citation Nr: 1328228 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 08-00 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a bilateral eye disorder, including glaucoma. 2. Whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for right knee patellar joint disease; and if so, whether service connection is warranted. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Nathaniel J. Doan, Counsel INTRODUCTION The Veteran had active military service from July 1977 to July 1980 in the United States Army, and from June 1981 to November 2001 in the United States Air Force. The issue of entitlement to service connection for a bilateral eye disorder, including glaucoma, comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision from the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied the benefit sought on appeal. The Veteran timely perfected his appeal in September 2009. This claim was previously denied by the Board in July 2011. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In January 2012, the Court granted a joint motion for remand agreed upon by the Veteran and the Secretary of VA. The portion of the Board's July 2011 decision pertaining to the claim of entitlement to service connection for a bilateral eye disorder was vacated, and the claim was remanded back to the Board for additional development. The remaining issues discussed in the Board's July 2011 decision were left intact. With respect to whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for right knee patellar joint disease, the RO issued a July 2012 rating decision denying this claim. As discussed below, the Veteran submitted an April 2013 Notice of Disagreement (NOD) with this rating decision, necessitating that the RO issue a Statement of the Case (SOC). Manlincon v. West, 12 Vet. App. 238 (1999). The issue of whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for right knee patellar joint disease 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. The Veteran will be notified if any further action on his part is required. FINDING OF FACT The Veteran currently has glaucoma that first developed in service. CONCLUSION OF LAW The criteria for entitlement for service connection for a bilateral eye disorder, diagnosed as glaucoma, is warranted. See 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that he has a bilateral eye disability that began in service. As discussed below, the Board finds that the preponderance of the evidence indicates that the current diagnosis of his acquired bilateral eye disorder is primary open angle glaucoma and that his glaucoma began in service. As the Veteran has a bilateral acquired eye disorder that began in service, service connection is warranted. Below, the Board focuses on the evidence that forms the basis of this grant of service connection. I. The Veterans Claims Assistance Act of 2000 (VCAA) Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations, as set forth under the VCAA, have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). In this appeal, however, the Board grants service connection for the diagnosed acquired bilateral eye disorder. Since this decision constitutes a complete grant of the benefit addressed on the merits in this instant decision, the Veteran cannot be prejudiced by any possible defect in VA's VCAA obligations. Therefore, the Board finds that a discussion of the VA's "duty to notify" and "duty to assist" obligations is unnecessary. II. The Merits of the Claim The Veteran seeks service connection for a bilateral eye disability. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. See 38 C.F.R. § 3.303(d) (2012). Regarding evidence from the Veteran's periods of service, the service treatment records include a September 2001 treatment record in which a clinician suspected that the Veteran had glaucoma. Shortly thereafter, in November 2001, the Veteran separated from service. There is no earlier dated lay or medical evidence that the Veteran was suspected of having glaucoma. In large part, earlier denials of this claim, to include the July 2011 Board decision, were based on a lack of a consistently diagnosed acquired bilateral eye disorder, to include glaucoma, after the Veteran separated from service. Other diagnoses of the eyes represented refractive errors, and, by law, are not for service connection. See 38 C.F.R. § 3.303(c) (2012). When the issue was again before the Board pursuant to the Court's vacatur of the July 2011 denial, the Board noted current conflicting evidence regarding whether the Veteran had a diagnosis of glaucoma. The Board remanded the appeal in part to obtain a VA examination that reviewed the evidence of record and determined whether the Veteran had a current bilateral eye disorder, to include glaucoma, that was related to service. At the time, the claims file did not contain such a comprehensive medical opinion that addressed the question before the Board. This examination was provided in February 2013. The examiner noted the in-service finding of "suspected glaucoma" in 2001. The examiner found that the Veteran currently had bilateral glaucoma that required continuous medication for treatment. Regarding the etiology of the disability, the Board is cognizant that examiner opined that the diagnosis of primary open angle glaucoma was less likely than not incurred or caused by the claimed in-service injury, event, or illness. As rationale, however, the examiner remarked that glaucoma was more common in African Americans, those with a family history, and with increasing age, and that the Veteran had all of these factors. Further, the examiner summarized that the Veteran's glaucoma was not due to service but remarked that it was diagnosed during service. She further remarked that the disease had not progressed since the initial diagnosis during service in 2001. After this review, the preponderance of evidence of record shows that the Veteran's previously diagnosed acquired bilateral eye disorder is primary open angle glaucoma. Although the examiner phrased her opinion in the negative, looking closely at the narrative and rationale she provided, her negative opinion was based on a finding that the Veteran's service did not cause the disability and the disability had not progressed since it was diagnosed during service. Within this opinion, however, she remarked that the Veteran's current diagnosis is a continuation of the same disease found in 2001 while the Veteran was in service and, in short, opined that the finding of suspected glaucoma represented the same diagnosis as the currently diagnosed primary open angle glaucoma. See February 2013 VA examination, page 22 ("In summary, the [V]eteran's [primary open angle glaucoma] is not due to military service but was diagnosed during service."). It is not necessary that service caused the disability. Here, the Veteran has a current diagnosis of glaucoma and the evidence shows that the disability was first diagnosed during service. As such, service connection for a bilateral eye disorder, diagnosed as glaucoma, is warranted. See 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012); Gilbert, 1 Vet. App. at 57. As such, the appeal is granted. ORDER Service connection for a bilateral eye disorder, diagnosed as glaucoma, is granted. REMAND Regarding whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for right knee patellar joint disease, as noted in the Introduction, the RO issued a July 2012 rating decision denying this claim. In August 2012, the Veteran submitted an NOD to this rating decision. To date, the RO has not responded to this NOD with an SOC addressing this issue. The Board finds that this issue must be remanded, so that a SOC can be issued. Manlincon v. West, 12 Vet. App. 238 (1999). Upon remand, the RO is directed to issue this SOC. Accordingly, the case is REMANDED for the following actions: After any additional development that may be indicated, the issue of whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for right knee patellar joint disease should be reviewed. If the benefit sought is not granted, the Veteran should be furnished a statement of the case regarding the denied benefit and advised of the appropriate time limits to perfect his appeal. These issues should only be returned to the Board if an appeal is perfected. The Veteran need take no action until otherwise notified. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the AMC/RO. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). The purpose of this remand is to preserve the Veteran's due process rights. No inference should be drawn as to the outcome of these matters by the actions herein requested. ______________________________________________ K. A. KENNERLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs