Citation Nr: 1336115	
Decision Date: 11/06/13    Archive Date: 11/13/13

DOCKET NO.  09-07 391	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for open angle glaucoma, to include as due to toxic herbicide exposure.  


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

B. Thomas Knope, Counsel



INTRODUCTION

The Veteran served on active duty from January 1968 to July 1969, with 11 months and 26 days of recognized active service.  

This matter is on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  

The Veteran testified before the undersigned Veterans Law Judge in July 2011.  A transcript of the hearing is of record.

This appeal was remanded by the Board in October 2011 for further development and is now ready for disposition.


FINDING OF FACT

Open angle glaucoma was not shown in service or for many years thereafter, and is unrelated to active duty service or to toxic herbicide exposure.


CONCLUSION OF LAW

Open angle glaucoma was not incurred in or aggravated by service, and is not related to service or to toxic herbicide exposure.  38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

VA Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Here, the Veteran has not alleged prejudice with respect to notice, as is required, and none is found by the Board.  See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).   Indeed, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2008 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter.  The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence.  It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date.  Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  

Next, VA has a duty to assist a veteran in the development of the claim.  This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records.  Further, the Veteran submitted his own statements in support of his claim.  

A VA examination with respect to the issue on appeal was also obtained in December 2011, and a supplemental opinion was provided by the VA examiner in February 2012.  38 C.F.R. § 3.159(c)(4) (2013).  To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As noted below, it does not appear that the VA examiner reviewed the claims file prior to providing the requested opinion.  However, the Board nevertheless finds that the VA examination obtained in this case is more than adequate.  Specifically, the examiner's statements indicate that he understood the Veteran's pertinent history.  Moreover, the VA examiner sufficiently explained that the nature of the Veteran's disorder was such that it was not truly necessary to review the claims file, and that such a review would have not have materially altered his conclusions.  Accordingly, the Board finds that a remand for review of the claims file would not be beneficial, and would only unnecessarily delay adjudication of the claim.  Therefore, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4) (2013).  

Next, the Veteran was also afforded a hearing before the undersigned Veterans Law Judge in July 2011.  At that time, he was informed that the issue of entitlement to service connection for glaucoma was on appeal.  Nevertheless, the Veteran did not wish to present any testimony on this particular claim.  Nevertheless, as he was given the opportunity to do so, the Board concludes that the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), which consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  

Finally, it is noted that this appeal was remanded by the Board in October 2011 for further development. Specifically, the Board instructed the RO to schedule the Veteran for a VA ophthalmological examination, which was performed in December 2011.  Although it does not appear that the opinion that was provided in February 2012 was based on a review of the claims file, the Board has nevertheless determined that the examination and opinion are adequate for adjudication purposes.  After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in May 2012.  Thus, the Board is now satisfied there was substantial compliance with this Remand.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Service Connection

In this case, the Veteran is claiming entitlement to service connection for glaucoma.  While this claim originally included consideration of whether it was secondary to diabetes mellitus, he has since clarified that such a relationship is not asserted.  Indeed, neither he nor the evidence record indicates that he has been diagnosed with diabetes mellitus.  However, as the Board raised the possibility that the Veteran's glaucoma may be related to exposure to toxic herbicides or other chemicals during active duty in its October 2011 Remand, this aspect of the claim is addressed as well.  

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  Generally, the evidence must show:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

In some cases, a relationship between the present disability and the disease or injury incurred or aggravated during service may be established through a demonstration of continuity of symptomatology for certain specific chronic disorders.  38 C.F.R. § 3.303(b); see also Barr v. Nicholson, 21 Vet. App. 303 (2007).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-96 (1997).  

However, service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be "chronic" under 38 C.F.R. § 3.309(a).  As is relevant here, glaucoma is not considered a chronic disease under 38 C.F.R. § 3.309(a), and may not be service connected under 38 C.F.R. § 3.303(b).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a).  

Finally, 38 U.S.C.A. § 1154(a) 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).  Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition 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 professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 

As an initial matter in this case, service connection is not warranted on a presumptive basis due to toxic herbicide exposure.  VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to these any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6).  Notably, these were the key compounds found in the tactical herbicides used during that time, with "Agent Orange" being the most common.

Service connection is warranted for a veteran who has been exposed to toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)) for diseases such as chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, multiple myeloma, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), soft-tissue sarcomas, ischemic heart disease, Parkinson's disease, B-cell leukemias and, as is relevant here, prostate cancer. Moreover, service connection is warranted even if these disorders were not shown during active duty. 38 C.F.R. § 3.309(e).

In this case, the Board acknowledged in its October 2011 Remand that the Veteran was exposed to toxic herbicides during his service.  However, glaucoma is not a disorder specifically listed to be related to such exposure under 38 C.F.R. § 3.309(e).  Therefore, service connection is not warranted on a presumptive basis.  Nevertheless, service connection may still be established if there is other competent evidence indicating a relationship between the Veteran's claimed disorder and his active duty service.  See Brock v. Brown, 10 Vet. App. 155 (1997);

After reviewing the evidence of record, however, the Board concludes that service connection is also not warranted on a direct basis.  In this regard, the service treatment records indicate that the Veteran was seen for a stye (or hordeolum) in the left upper eyelid in Mach 1969, which appeared to resolve shortly thereafter.  There is no indication that this hordeolum caused any intraocular symptoms, nor was there any clinically observed vision impairment.  Significantly, the Veteran's separation physical examination in July 1969 fails to document any complaints of or observed symptoms related the hordeolum or any intraocular disorders.  

In fact, the post-service evidence does not reflect symptoms related to glaucoma for many years after the Veteran left active duty service.  Specifically the first diagnosis of glaucoma was not until February 2008, where his cup-to-disc ratio, high intraocular pressure, thin corneas and "classic field defects" indicated that such a diagnosis was warranted.  It is true that the evidence suggests that glaucoma may have been present since as early as 2005.  However, even if one were to presume that this was the case, it is still 36 years after he left active duty.  Even though service connection for a disorder such as this may not be shown simply based on continuity of symptoms, see Walker, 708 F.3d at 1331, such a large gap in treatment also weighs against the Veteran's claim that his glaucoma is related to service.

Moreover, the Board also finds that the weight of the competent evidence does not attribute the Veteran's claimed disorder to active duty or to any chemical exposure, despite his contentions to the contrary.  In this regard, the Board places significant value in a VA examination that was performed in December 2011, and a supplemental opinion provided by a VA examiner in February 2012.  At the time of the examination, VA examiner confirmed that the Veteran has glaucoma, and was taking Alphagan and Travatan-Z medication to treat his symptoms.  However, in February 2012, the examiner indicated that the Veteran's glaucoma was not related to active duty service.  In providing this opinion, he noted that the Veteran was specifically diagnosed with primary open-angle glaucoma, which is a hereditary and age-related condition.  Had the Veteran actually had glaucoma since he was in active duty, the examiner continued, he "would be blind now."  

While it does not appear that the VA examiner did not review the claims file prior to this examination, the Board nevertheless finds that the examination was adequate for evaluation purposes.  Specifically, the examiner's statements indicate that he was aware of the Veteran's pertinent medical history.  The examiner's comments also make clear that the Veteran's glaucoma is by definition a hereditary and age-related condition.  As such, there was no pertinent information in the claims file that would have altered his opinion.  

As for any assertions that the Veteran's glaucoma is etiologically related to any chemical exposure in service, the Board notes that there is no clinical evidence of record indicating that such a relationship exists.  Specifically, no treating professional has suggested such a relationship, nor are there any treatment records indicating that this was a possibility. 

The Board has also considered the statements made by the Veteran relating his glaucoma to his active service. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition 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 professional."  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)).

In this case, however, the Veteran is not competent to provide testimony regarding the etiology of glaucoma.  See Jandreau, 492 F.3d at 1377, n.4. Because glaucoma is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's glaucoma are found to lack competency.

It is true that the Veteran's lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  However, the Veteran has not asserted that he has experienced symptoms of glaucoma, or any other eye symptoms for that matter, since active duty service.  

Therefore, in light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved.  As such, the appeal is denied.


ORDER

Service connection for open angle glaucoma, to include as due to toxic herbicide exposure.  



____________________________________________
D. C. SPICKLER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs