Citation Nr: 1334398 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-42 033A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for a left eye disorder, to include as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Guam Office of Veterans Affairs ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1971, and from July 1980 to August 1980, with additional service in the U.S. Army Reserves. This matter comes to the Board of Veterans' Appeals (hereinafter Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. He perfected a timely appeal to that decision. In July 2012, the Board remanded the claim of service connection for a left eye disorder for further evidentiary development. The Appeals Management Center (AMC) completed the requested development and issued a supplemental statement of the case (SSOC) in May 2013. Review of the record reflects substantial compliance with the Board's Remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. A review of the Virtual VA paperless claims processing system does not show any pertinent records that are not already associated with the claims folder. In July 2013, the Board received additional evidence from the Veteran. On review of the evidence the Board finds that it is cumulative of evidence that was already associated with the claims file, and therefore does not require waiver of RO consideration or return to the RO for their initial consideration. 38 C.F.R. § 20.1304 (2013). FINDING OF FACT There is no competent evidence that the Veteran's currently diagnosed left eye disorders, to include open-angle glaucoma and decreased vision, first diagnosed many years after service is related to service or that it is related to his service-connected diabetes mellitus. CONCLUSION OF LAW A left eye disorder, to include open-angle glaucoma and decreased vision, was not incurred in or aggravated by service, may not be presumed to have been incurred or aggravated therein, and is not proximately due to or the result of service-connected disease or injury. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in May 2008 from the RO to the Veteran, which was issued prior to the RO decision in January 2009. Additional letters were issued in July 2009, August 2012, and January 2013. Those letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. The Board finds that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. The Veteran has been afforded VA examinations on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations afforded the Veteran are adequate. Nieves- Rodriguez v. Peake, 22 Vet. App 295 (2008). They were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and examined the Veteran. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran. No useful purpose would be served in remanding the questions addressed herein for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. The Veteran served on active duty from July 1968 to July 1971, and from July 20, 1980 to August 2, 1980. The enlistment examination, dated in June 1968, reported visual acuity of 20/20 in both eyes. During an enlistment examination in May 1979, the Veteran reported a history of dizziness and positional rare episodes; distant and near visual acuity was 20/20 in both eyes. Reserve records include a retention examination, dated in March 1983 which reported distant visual acuity of 20/20 in both eyes, and near vision of 20/25 in the right eye and 20/20 in the left eye. During a quadrennial examination in December 1986, distant visual acuity was 20/20 in the right eye and 20/30 in the left eye; near vision was 20/30 in the right eye and 20/25 in the left eye. A treatment note dated in November 1989 revealed a finding of pterygium in both eyes; distant vision was 20/20 in both eyes and near vision was 20/40 in the right and 20/20 in the left eye. Post service treatment records dated from July 2002 through September 2004 show that the Veteran was diagnosed with and received treatment for diabetes mellitus. These records also indicate that the Veteran received clinical attention for complaints of eye pain. During a clinical visit in March 2004, the Veteran complained of bilateral eye pain which has been present ever since he was in Vietnam. A primary care note dated in June 2004 indicates that there was no retinopathy of the eye on examination. The Veteran was afforded a VA compensation examination for diabetes mellitus in February 2005. It was noted that the left eye has had worsening blurred vision over the last several months; he uses eye drops for dry eyes. The examiner also reported that the Veteran had pterygium surgery 10 years ago on the left eye. On examination, the Veteran had elevated pressure in the left eye, greater than 23; corrected visual acuity was 20/25 in both eyes. He had posterior vitreous detachment in the left eye. There was no diabetic retinopathy. The Veteran was referred to the Seventh Day Adventist Clinic for an eye examination. The uncorrected visual acuity in the left eye was 20/25 normally. The ocular versions were full. The visual fields were intact. The pertinent diagnoses were glaucoma, suspect, high IOP, left eye; diabetes mellitus, type 2; pterygium, inactive, both eyes; superficial keratitis, PEK, both eyes; hyperopia, right eye; and posterior vitreous detachment, left eye. The examiner stated that there was no diabetic or hypertensive retinopathy in either eye. He further noted that the intraocular pressure greater than 23 that was identified is a risk factor for development of glaucoma. Received in April 2005 were VA progress notes dated from October 2000 to February 2005. These records show that the Veteran received clinical attention and treatment for eye pain. In June 2007, the Veteran was referred by the VA for eye examination. It was noted that the Veteran has been known to have diabetes for about 8 years, and is on oral treatment. It was also noted that the Veteran was also on medication for systemic hypertension and hyperlipidemia. He has been using Travatan at bedtime in the left eye for Glaucoma. On examination, the uncorrected visual acuity in the right eye was 20/20-2; the left eye sees 20/40-2 without correction. The ocular versions were full; the eyes were orthoplolic. The lids were clear. The anterior changers were deep. The pupils were normally reactive. Both lenses were clear. The intraocular pressures were 20 in the right eye and 20mm hg in the left eye. The near vision tested without correction was 20/50 for the right eye, and 20/50 for the left eye. There were pterygia on both eyes. The near vision with correction was 20/20 in both eyes. The visual fields in both eyes showed glaucomatous defects. The pertinent diagnoses were chronic open-angle glaucoma, both eyes; diabetes mellitus, type 2; pterygium, inactive, both eyes; posterior vitreous detachment, left eye; astigmatism, both eyes; presbyopia; hyperopia, right eye; and systemic hypertension. The optometrist stated that, despite the medical history, there was no diabetic or hypertensive retinopathy in either eye. The optometrist also stated that they were concerned that the Veteran may now have glaucoma in both eyes and that current treatment is not adequate. Received in July 2007 were VA progress notes dated from February 2005 to July 2007. These records show that the Veteran received ongoing clinical attention and treatment eye disorders, including glaucoma in both eyes. Received in January 2009 were VA progress notes dated from July 2007 to December 2008 which reflect ongoing evaluation and treatment for eye disorder, including ocular hypertension in the left eye, cataracts and open angle glaucoma in the left eye. Medical evidence of record dated from March 2009 to March 2010 which reflect ongoing evaluation and treatment for eye disorder, including ocular hypertension in the left eye, cataracts and open angle glaucoma in the left eye. On the occasion of a VA examination in September 2010, it was noted that the Veteran currently had no active symptoms. Distant visual acuity with correction was 20/20 in the right eye and 20/80-1 in the left eye. There was no manifested diplopia in any position of gaze. The left eye's field was very limited with superior altitudinal loss, plus less severe inferior defects. Received in July 2011 were VA progress notes dated from May 2007 to April 2011 which reflect ongoing evaluation and treatment for eye disorder, including ocular hypertension in the left eye, cataracts and open angle glaucoma in the left eye. The Veteran underwent an ocular eye evaluation in April 2012. It was noted that he has been known to have type 2 diabetes for about 13 years and is on oral treatment. It was reported that he is also under treatment for systemic hypertension. On examination, uncorrected visual acuity was 20/20-1 in the right eye and 20/60 in the left eye; corrected vision was 20/20 in the right eye and 20/200 in the left eye; near vision was 20/30 in the right eye and 20/200 in the left eye. The pertinent diagnoses were diabetes mellitus, type 2; glaucoma, glaucomatous optic atrophy, left eye; glaucoma, primary open-angle, left eye; and glaucoma, end stage, severe, advanced, left eye. The examiner stated that, based upon a thorough examination of the Veteran and review of the records, he judged the Veteran's severe visual loss in the left eye to be due to known glaucoma and unrelated to diabetes. The examiner also stated that both eyes are free of diabetic or hypertensive retinopathy. The examiner noted that he found no eye problems attributable to diabetes. On the occasion of a subsequent VA eye examination in September 2012, it was noted that uncorrected distant vision was 20/40 in the right eye, with only hand movement seen by the left eye; uncorrected near vision was 20/200 in the right eye, with hand movement seen by the left eye. The examiner noted that there was no anatomical loss of either eye. The examiner reported posterior vitreous and detachment in the left eye. The Veteran had pterygium in both eyes. The examiner noted that the Veteran had open-angle glaucoma in the left eye. He also noted that the Veteran had decreased visual acuity which is attributable to the glaucoma. The pertinent diagnoses were glaucomatous optic atrophy, primary open angel glaucoma, and severe, advanced, end-stage glaucoma. The ophthalmologist stated that the Veteran had a long history of diabetes for which he is service-connected; however, there is no diabetic retinopathy. The examiner stated that the left eye's vision is severely limited by glaucoma for which no service connection has been listed. The examiner stated that they had no reason to suppose that, in this case, the glaucoma was caused by diabetes. In March 2013, the Veteran's claims folder was referred to an optometrist for review and opinion. The examiner stated that it is not at least as likely as not that the Veteran's left eye condition was incurred in service. The examiner noted that glaucoma initially occurred in 2005, and there was no history of left eye surgery or left eye trauma in the STRs. The examiner stated that it is not at least as likely as not that diabetes mellitus caused any currently diagnosed eye condition. The examiner explained that a systemic cause of glaucoma, i.e. caused by diabetes mellitus, would affect both eyes; and yet, there was no glaucoma in the right eye. The examiner sated that this is a case of unilateral glaucoma of the left eye, most likely caused by trauma. Another medical opinion was rendered in April 2013. The examiner stated that the claimed condition was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. The examiner explained that there was a history of glaucoma of the left eye only. He noted that diabetes is a systemic condition and would affect both eyes not just the left eye. III. Legal Analysis. The Veteran essentially maintains that he has a left eye condition attributable either directly to service or as secondary to his service-connected diabetes mellitus, to include through aggravation. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Refractive errors of the eye are not diseases or injuries within the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may also be established for disability that is proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310(a); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). The provisions of 38 C.F.R. § 3.310 indicate, in pertinent part, that disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. The Court has clarified that service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Prior to the Veteran's claim, there was an amendment made to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. It was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. As to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Competent medical evidence is 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 include 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 is 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 facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a) (2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After having reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the grant of service connection for a left eye disorder. The Veteran has several exhibited eye disorders involving the left eye, including posterior vitreous detachment, left eye; astigmatism, both eyes; presbyopia, and open-angle glaucoma. Refractive error is not a disease or injury within the meaning of applicable legislation for disability compensation purposes and may not be service-connected. See 38 C.F.R. § 3.303(c). With respect to direct service connection, the Board finds that the record is against the Veteran's claim. In this regard, the Board notes that the STRs are negative for any complaints, findings or a diagnosis of a left eye disorder. In addition, while the post-service treatment records include diagnoses of open-angle glaucoma, and decreased vision, none of these records suggests any causal relationship between these disabilities and the Veteran's military service. Rather, following the March 2013 VA examination, the examiner stated that it is not at least as likely as not that the Veteran's left eye condition, diagnosed as glaucoma, was incurred in service. The examiner noted that glaucoma initially occurred in 2005, and there was no history of left eye surgery or left eye trauma in the STRs. In another opinion in April 2013, the examiner stated that the claimed condition was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. The examiner explained that there was a history of glaucoma of the left eye only. He noted that diabetes is a systemic condition and would affect both eyes not just the left eye. Moreover, the Veteran has not brought forth any medical evidence that would either refute the medical evidence of record or suggest a nexus between his eye disorders and service. Accordingly, the Board finds that there is no competent evidence in the record to show that the Veteran's current left eye disabilities, including glaucoma and decreased vision in the left eye, are related to service. See 38 C.F.R. § 3.303. Furthermore, there is no competent evidence showing that the Veteran has a left eye disorder, including glaucoma and loss of vision in the left eye, which is due to a service-connected disease or injury. Significantly, following an ocular examination in April 2012, the examiner stated that, based upon a thorough examination of the Veteran and review of the records, he judged the Veteran's severe visual loss in the left eye to be due to known glaucoma and unrelated to diabetes. The examiner also stated that both eyes are free of diabetic or hypertensive retinopathy. The examiner noted that he found no eye problems attributable to diabetes. Following yet another review of the claims folder in September 2012, a VA ophthalmologist stated that the Veteran had a long history of diabetes for which he is service-connected; however, there was no diabetic retinopathy. The ophthalmologist also stated that the left eye's vision is severely limited by glaucoma for which no service connection has been listed. The ophthalmologist concluded that they had no reason to suppose that, in this case, the glaucoma was caused by diabetes. Accordingly, the preponderance of the evidence indicates that the Veteran's left eye disorders, including glaucoma and decreased vision left eye is not due to, nor was it aggravated by, the service-connected diabetes mellitus, or any other service-connected disease or injury. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). To the extent that the Veteran himself asserts he suffers from a left eye disorder as a result of a detonation, there is no evidence that he possess the requisite medical training or expertise necessary to render him competent to offer evidence on matters such as medical diagnosis or medical causation. Cromley v. Brown, 7 Vet. App. 376, 379 (1995). Essentially it is beyond the Veteran's competency to link his claimed eye conditions to an inservice event. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions) Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for a left eye disorder, including glaucoma and decreased vision. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The benefit sought on appeal is therefore denied. ORDER Service connection for a left eye disorder, to include as secondary to diabetes mellitus, is denied. ____________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs