Citation Nr: 1328924	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  06-29 123	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

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


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Hal Smith, Counsel


INTRODUCTION

The Veteran served on active duty from February 1971 to January 1973.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA).  The issue has been classified as on the title page of this decision as this best represents the claim that is currently before the Board.  

In May 2009, a video conference hearing was held before a Veterans Law Judge (VLJ), and a transcript of the hearing testimony is in the claims file.  In May 2013, the Veteran was notified that the VLJ who conducted the hearing was no longer employed by the Board.  Although he was offered an additional hearing before the Board, he chose not to respond.  Thus, the Board will assume that he does not want another hearing and render a decision on the available record.  

The appeal initially included the claim for service connection for a heart disorder, to include atrial fibrillation.  During the appeal process, the claim for service connection for ischemic heart disease, to include myocardial infarction, as a residual of Agent Orange (AO) exposure, was granted.  See the December 2011 rating decision.  As subsequently explained to the Veteran in a December 2012 Supplemental Statement of the Case (SSOC), ischemic heart disease and atrial fibrillation are both disorders of the heart, and in accordance with VA regulations, the evaluation of the same disability under various diagnoses is to be avoided as this would constitute pyramiding.  38 U.S.C.A. §§ 7104, 7105 (2012); 38 C.F.R. § 3.14 (2012).  As service connection has already been granted for cardiac disease, the claim is considered moot, and will not be further addressed here.  

The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder."  It is specifically noted that VA medical records dated thru May 2013 were added electronically to Virtual VA after the December 2012 SOC.  These records were added without a waiver of RO review.  However, they are either cumulative of evidence previously on file or refer to issues not currently on appeal.  Consequently, as this evidence is not "pertinent," this case does not need to be remanded for RO review.  See 38 C.F.R. § 20.1304 (2012).  


FINDING OF FACT

The Veteran's is noted to have "glaucoma suspect" which is not a diagnosis of glaucoma.  He has a eye condition called "anatomically narrow angles" which is a congenital defect that is unrelated to service and is not related to any injury or disease from active duty, to include service-connected diabetes mellitus.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for an eye disorder, claimed to be glaucoma, have not been met.  §§ 1101, 1110, 1112, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim.

First, VA has a duty under the VCAA to notify a Claimant and any designated representative of the information and evidence needed to substantiate a claim.  In this regard, letters to the Veteran from the RO (to include letters in April 2005, May 2005, July 2006, and October 2012) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence.  Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) informing the Veteran about the information and evidence he was expected to provide; and (4) requesting the Veteran to provide any information or evidence in his possession that pertained to the claims.

Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2012).  The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements from the Veteran and his representative.  There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran.  

The Veteran was provided an opportunity to set forth his contentions during a video hearing in May 2009 before a VLJ who as mentioned, is no longer employed with the Board.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Bryant, supra.  

During the 2009 video hearing, in relevant part, the presiding VLJ identified the present issue on appeal, and the testimony of the Veteran, to include the questions posed by his accredited representative, focused on the elements necessary to substantiate the current appellate claim; i.e., the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing.  As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied.  

Next, specific VA medical examination and opinion pertinent to the issue on appeal was obtained in May 2012 to assess the etiology of his disability.  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds the above VA examination report to be thorough and adequate upon which to base a decision with regard to the Veteran's claim.  The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate whether service connection is warranted for the Veteran's disability under the applicable laws and regulations.  See 38 C.F.R. § 3.327(a) (2012); Caffrey v. Brown, 6 Vet. App. 377 (1994).  Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim.  

Service Connection

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012).  

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) (2012).  

Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 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.  38 C.F.R. § 3.303(b) (2012).  

This rule does not mean that any manifestations in service will permit service connection.  To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic".  When the disease entity is established, there is no requirement of evidentiary showing of continuity.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2012).  However, since the Veteran is not currently diagnosed with an eye disorder that is recognized as chronic under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) is not for application.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999).  

Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  Additionally, when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  Allen v. Brown, 7 Vet. App. 439 (1995).  38 C.F.R. § 3.310 (2012).  

Generally, congenital or developmental defects or conditions are not considered to be diseases or injuries within the meaning of applicable legislation providing VA disability compensation benefits.  38 C.F.R. § 3.303(c) (2012).  

A congenital disease is capable of improving or deteriorating whereas a congenital defect is "more or less statutory in nature."  VAOPGCPREC 82-90 (July 18, 1990).  Service connection may be established for a disease of congenital origin.  Indeed, a congenital disease can be incurred or aggravated in service in that it first manifests during service or preexisted service but progresses beyond its natural progression during service.  VAOPGCPREC 67-90 (July 18, 1990).  A congenital defect is not a disability for which service connection can be granted.  38 C.F.R. §§ 3.303(c); 4.9 (2012).  However, if the defect was aggravated such that a superimposed disease or injury occurred during service, service connection may be established for the resultant disability.  VAOPGCPREC 82-90.  The presumption of soundness applies to a congenital disease but not to a congenital defect.  Quirin v. Shinseki, 22 Vet. App 390 (2009).  

Relevantly, 38 U.S.C.A. 1154(a) (West 2002 & Supp. 2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Although medical evidence may be required to support a claim in instances were specialized knowledge is required, lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (a lay persons is competent to testify to pain and visible flatness of the feet).  

The Federal Circuit Court has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a disability when (1) a 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 profession."  Jandreau, 492 F.3d at 1377; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.").  

It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others.  Evans v. West, 12 Vet. App. 22, 30 (1998).  The Board cannot make its own independent medical determination, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another.  Evans; Rucker v. Brown, 10 Vet. App. 67, 74 (1997).  

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.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  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.

Background and Analysis

The preponderance of the evidence of record indicates that the Veteran does not currently have glaucoma.  It has not been diagnosed since the claim was filed in March 2005.  

In explanation, as noted in the Board's recent remand decision in June 2011, "glaucoma suspect" was reported on numerous occasions, to include March 2005 and July 2006.  Additional examination was requested to determine if the Veteran had glaucoma, and, if so, estimate when the condition began, and if it was at least as likely as not that the disorder was caused directly by or arose during active service.  Moreover, if present, the examiner was to determine whether the condition was secondary to or aggravated by service-connected diabetes.  As a result of the Board remand, an additional eye examination was conducted in May 2012.  

Review of the May 2012 report reflects that the examiner noted that the only recognized complication that the Veteran had as a result of his diabetes was peripheral neuropathy (PN).  (The Board notes that service connection was recently established for PN of the upper and lower extremities in a May 2013 rating decision.)  Based on review of the claims file and examination of the Veteran, the examiner noted that the Veteran claimed that he had glaucoma.  He pointed out that this condition was one where intraocular pressure (IOP) in the eyes was increased.  Most commonly, if this elevated pressure was not reduced, one would begin to lose peripheral vision.  The examiner further noted that some patients were found to have increased IOP, but that it was not high enough to cause a problem (e.g., optic nerve end damage).  Such patients were referred to as "glaucoma suspects."  Since they might ultimately develop glaucoma, they needed to have their IOP checked regularly to monitor the pressure.  If the pressure continued to increase, and they began to develop optic nerve damage, they might reach the level at which glaucoma was diagnosed.  The examiner noted that the Veteran here was a glaucoma suspect.  His IOP pressures were variable.  He further noted that diabetes could cause vision problems in the form of diabetic retinopathy, but the Veteran did not have this condition.  It was also noted that diabetes did not cause or aggravate glaucoma.  

In additional report later in May 2012, the same examiner again noted that the Veteran was a glaucoma suspect.  The examiner further noted that the suspicion was for "narrow angle glaucoma suspect" and that this condition was not related to diabetes but was simply how the Veteran's eye was "structurally put together."  Again, he noted that there was no confirmed diagnosis of glaucoma.  

In a July 2012 addendum report, the same examiner noted that the Veteran had anatomically narrow angles.  There was no definitive diagnosis of glaucoma.  He was treated prophylactically by a procedure known as a laser peripheral irridotomy which essentially was a burning of a hole in the iris.  This allowed fluid an extra route of escape lessening the chance of a catastrophic eye pressure increase.  Again, the examiner noted that this was anatomical and unrelated to diabetes.  

Since the preponderance of the evidence indicates that the Veteran's current eye disorder is a "glaucoma suspect" and that he does not have glaucoma, service connection cannot be granted for this condition.  Service connection cannot be granted for a "glaucoma suspect" as it is not a disease, injury, or disability.  In the absence of a current disability, service connection cannot be granted.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992).  

As to the only eye disorder shown - anatomically narrow angles - the examiner noted that the condition was congenital in nature and not aggravated by service-connected diabetes.  Thus, service connection is not warranted in that the Veteran's defect was anatomical in nature and not the result of service, to include his diabetes, and did not acquire additional disability due to disease or injury superimposed upon such defect during service.   38 C.F.R. § 3.303(c), 4.9 (2012); VAOPGCPREC 82-90 (July 18, 1990).  

The Board acknowledges that lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection.  As such, the Veteran is competent to report symptoms such as visual impairment.  However, he is not competent (meaning medically trained) to provide a complex medical diagnosis, such as diagnosing an eye disorder.  Layno, Jandreau, supra.  As such, his statements are insufficient to establish that he has an eye condition of service origin.  

The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2009); Gilbert, supra.  Therefore, the Board is unable to identify a reasonable basis for granting the Veteran's claim.  


ORDER

Entitlement to service connection for an eye disorder, claimed as glaucoma, is denied.  


____________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs