Citation Nr: 1330091 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 09-26 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral glaucoma. 2. Entitlement to service connection for a congenital right eye optic nerve pit. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active duty service from June 1960 to October 1981 in the United States Marine Corps. In addition, the Veteran also had active duty service as a cadet at the United States Military Academy from July 1956 to June 1960. His awards and decorations include the Combat Action Ribbon, Presidential Unit Citation, the Republic of Vietnam Campaign Medal with 60 device, the Vietnam Service Medal with 4 stars, and the Republic of Vietnam Cross of Gallantry. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded this case in June 2012 for further development. After completion of this development by the RO, the case has been returned to the Board for further appellate consideration. The Board has since recharacterized the issue on appeal into two issues in order to provide the Veteran adequate consideration for his multiple eye diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim). A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) does not reveal any additional documents pertinent to the present appeal. 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). The issue of entitlement to service connection for a congenital right eye optic nerve pit is addressed in the REMAND portion of the decision below is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran has a current, chronic open-angle glaucoma disability to both eyes that began during his active duty service. CONCLUSION OF LAW Bilateral glaucoma of the eyes was incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist Because the claim is granted in full, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal. See 38 U.S.C.A. §§ 5103, 5103A, 5107(West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2012). Governing Law and Regulations for Service Connection Veterans are entitled to compensation from the VA if they develop a disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. §§ 3.303, 3.306. For chronic diseases, including organic diseases of the nervous system such as glaucoma, shown in service, 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); Groves v. Peake, 524 F.3d 1306, 1309 (2008). This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear cut clinical entity, at some later date. For the showing of 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 identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity of symptomatology. 38 C.F.R. § 3.303(b). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). If the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that evidence against other evidence of record in making its determination regarding the existence of service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Analysis Upon review of the evidence of record, the Board grants the appeal for service connection for bilateral glaucoma of the eyes. The first and most fundamental requirement for any service-connection claim is the existence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, a July 2012 VA eye examiner diagnosed bilateral chronic open-angle glaucoma of the eyes. An earlier September 2007 private treatment letter also assessed glaucoma. Thus, the evidence clearly reveals a current bilateral glaucoma disability for the Veteran. Service treatment records (STRs) from December 1978 indicate that the Veteran was seen complaining of a bizarre pattern on the visual field. The diagnoses were optic pit, glaucoma, and congenital disc coloboma. In May 1981, a military eye examiner stated that the Veteran's field vision showed no significant change over several years. However, it was noted there it appeared to be a glaucomatous cup. Post-service, a September 2007 private medical record noted that the Veteran was born with an optic nerve pit in the right eye that could not be restored. The diagnoses were optic nerve pit, right eye, optic nerve asymmetry, and open angle glaucoma. An October 2007 VA examination was conducted. The Veteran was noted to have near normal vision in both eyes. The impression was right eye epiretinal membrane overlying the macula with advanced glaucoma. It was determined that a field vision examination was needed to complete the examination. In a December 2007 VA examination addendum, after the visual fields were performed, the VA examiner indicated that an optic pit defect was present, as well as glaucoma. The VA examiner opined that the glaucoma was more likely to have increased in the service from lack of proper medical care, but the true history was unknown. The VA examiner also noted that the patient may request a Humphrey Visual Field Test if further evidence needs to be given. Subsequently, a July 2012 VA eye examiner diagnosed bilateral chronic open-angle glaucoma of the eyes. There is a presumption of service connection for a chronic disease such as glaucoma, rebuttable only by clearly attributable intercurrent causes, which manifests during service and then again "at any later date, however remote." Groves, 524 F.3d at 1309. Here, the Veteran's glaucoma is an enumerated "chronic disease", diagnosed both in-service and post-service. See 38 U.S.C.A. §§ 1101; 38 C.F.R. § 3.309(a); Walker, 708 F.3d at 1336-37. The Board acknowledges that a VA eye examiner in a July 2012 examination report and March 2013 addendum report, opined that the Veteran's glaucoma was not incurred in or caused by service. This is unsupported given the in-service diagnoses for glaucoma listed above. In addition, when providing the rationale for his opinion, the VA examiner used a different theory of etiology by stating that the glaucoma was not aggravated by service. This statement adds more confusion and contradiction to the original opinion. When discussing aggravation, the VA examiner failed to specifically address the threshold question of whether the Veteran's glaucoma preexisted his service; the probative evidence of record does not indicate any such pre-existence. Rather, the evidence of record shows that the Veteran has a separate diagnosis from glaucoma - a congenital optic pit condition in the right eye, which clearly and unmistakably preexisted his service. Due to the confusing and unclear nature of this opinion, the Board does not accord it any probative value. See generally Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Godfrey v. Brown, 8 Vet. App. 113, 121 (1995). In any event, in the present case, the Board emphasizes that medical nexus evidence is not required to establish service connection when evidence, regardless of its date, shows that a Veteran had a chronic condition in service, and that he still has the same chronic condition. Groves, 524 F.3d at 1309-1310. Accordingly, resolving doubt in the Veteran's favor, the evidence supports service connection for bilateral glaucoma disability of the eyes. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Resolving all reasonable doubt in favor of the Veteran, service connection for bilateral glaucoma is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's separate claim of service connection for a congenital right eye optic nerve pit. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. The Court has clarified that only substantial compliance, and not strict compliance, with the terms of an opinion request are required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Remand is required to ensure compliance with the Board's previous June 2012 remand directives. First, the RO must obtain a VA addendum opinion from either the July 2012 or the March 2013 VA examiner with regard to the congenital right eye optic nerve pit condition, on the basis of possible aggravation of a "defect" or "disease" that preexisted service. Although the RO secured a VA examination dated in July 2012 and addendum opinion dated in March 2013, as instructed in the Board remand, the VA examiners, Dr. J.M., OD, and Dr. J.C., OD, both respectively failed to directly answer the etiology questions as posed. The VA ophthalmology examiners were asked to opine whether the Veteran's current disability of a congenital right eye optic nerve pit was a pre-service "disease" or a pre-service "defect." If the VA examiner determined that it was a congenital "defect," he or she should opine whether there was a superimposed disease or injury in service that resulted in additional disability. If, on the other hand, the VA examiner determined that it was a congenital "disease," he or she should opine whether the condition was permanently aggravated during the Veteran's period of active service beyond its normal progression. In this regard, under VA law, a defect differs from a disease in that the former is considered "more or less stationary in nature" while the latter is "capable of improving or deteriorating." See VAOPGCPREC 82-90, VAOPGCPREC 67-90. In the July 2012 report and March 2013 addendum, the VA ophthalmology examiner's response did not answer the etiology questions as posed. The VA examiner seemed to imply that the congenital right eye optic nerve pit was a "defect" rather than a "disease," but this is not explicitly clear from his response. If it was a congenital "defect," the VA examiner did not adequately address whether there was a superimposed disease or injury in service that resulted in additional disability. Overall, this VA examiner's opinion is confusing and inadequate. Therefore, the claims folder will be returned for an addendum opinion. If neither VA ophthalmology examiner is available, another qualified VA clinician will provide the addendum opinion. Second, VCAA notice is required that specifically addresses alternative sources of evidence the Veteran may submit in lieu of his STRs that are mostly missing from his earliest period of active duty service as a cadet at the United States Military Academy from July 1956 to June 1960. In this regard, VA has failed to inform the Veteran of what kind of substitute or alternative evidence he could submit in order to support his claim. When service records are lost or missing or destroyed, in conjunction with a heightened duty to assist, VA must inform the Veteran that he can submit "alternative" sources in place of his missing service records. See Washington v. Nicholson, 19 Vet. App. 362, 369-370 (2005); see also Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). Examples of such alternate evidence include the VA military files, statements from service medical personnel, "buddy" certificates or affidavits, state or local accident and police reports, employment physical examination reports, medical evidence from civilian/private hospitals, clinics, and physicians where or by whom a Veteran was treated, either during service or shortly after separation, letters written during service, photographs taken during service, pharmacy prescription records, and/or insurance examinations reports. See VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iii, Chapter 2, Section E, Topic 27, Block b. Thus, a remand is required for the RO to provide the Veteran with a VCAA letter advising the Veteran of what alternative evidence he can submit in place of his missing service records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send the Veteran a corrective VCAA notice letter notifying the Veteran that he can submit alternative sources in place of his missing service treatment records from West Point. This letter should advise that such alternate evidence includes VA military files, statements from service medical personnel, buddy certificates or affidavits, state or local accident and police reports, employment physical examination reports, medical evidence from civilian/private hospitals, clinics, and physicians where or by whom a Veteran was treated, either during service or shortly after separation, letters written during service, photographs taken during service, pharmacy prescription records, and/or insurance examinations reports. See VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iii, Chapter 2, Section E, Topic 27, Block b. 2. Secure a VA addendum opinion from either the July 2012 or the March 2013 VA examiner. If either VA examiner is no longer available, another qualified VA clinician must provide the addendum opinion. Only if deemed necessary by the VA examiner is an examination necessary. The claims folder must be made available for review for the examination and the addendum report must state whether such review was accomplished. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. The examiner must provide the following addendum medical opinions. : (a) Is the Veteran's current right eye optic nerve pit condition a congenital "disease" or a congenital "defect?" Under VA law, a defect differs from a disease in that the former is considered "more or less stationary in nature" while the latter is "capable of improving or deteriorating." Please answer this question clearly and directly. (b) If and only if the current right eye optic nerve pit condition is considered a congenital "defect," then was it subject to a superimposed disease or injury in service that resulted in additional disability? Please answer this question clearly and directly. (c) If and only if the current right eye optic nerve pit condition is considered a congenital "disease," then was it permanently aggravated during active service beyond its normal progression? Please answer this question clearly and directly. 3. Review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Thereafter, the consider all of the evidence of record and readjudicate the service connection issue for a congenital right eye optic nerve pit condition. If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs