Citation Nr: 1451916	
Decision Date: 11/24/14    Archive Date: 12/02/14

DOCKET NO.  09-40 352	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for bilateral glaucoma, to include as secondary to service-connected branch retinal vein occlusion (BRVO) in the left eye.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. T. Sprague, Counsel






INTRODUCTION

The Veteran had active service in the United States Marine Corps from August 1982 to September 2003.  

This matter comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  The claim was dispatched to the Veterans Health Administration (VHA) for an expert opinion in June 2014.  All actions required have been completed, and the claim is ripe for appellate review.  


FINDING OF FACT

The Veteran demonstrated higher than average ocular pressures bilaterally while in active service; the competent and probative evidence of record indicates that this manifestation represented the earliest indication of current bilateral glaucoma.  


CONCLUSION OF LAW

Service connection for bilateral glaucoma is warranted.  §§ 1110, 1111, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA 

On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000).  This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits.  

First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim.  38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2012).  Information means non-evidentiary facts, such as the claimant's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim.  See 66 Fed. Reg. 45620, 45,630 (August 29, 2001); 38 C.F.R. § 3.159(a)(5) (2014).  Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2014).  

As discussed in more detail below, sufficient evidence is of record to grant the claim for service connection for bilateral glaucoma.  Therefore, no further development is needed with respect to this claim.  

Legal Criteria-Service Connection

Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  That an injury or disease occurred in service alone is not enough; there must be current disability resulting from that injury.  Service connection may also be granted for any injury or disease diagnosed after discharge, 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).

Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).  Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability.  See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Service connection for certain diseases, such as an organic disease of the nervous system, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a); See also M21-1MR, Part III, Subpart IV, Ch. 4, B.11.c (recognizing glaucoma as an organic disease of the nervous system).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307(a).  Service connection may also be warranted for those diseases found at 38 C.F.R. § 3.309(a) if there is a showing of chronic disease during service with subsequent manifestations of that chronic disease after service that cannot be clearly attributed to intercurrent causes or where the condition is noted in service and there is continuity of symptomatology sufficient to establish chronicity since service.  See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a).  Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a).  See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

Analysis

The Veteran has alleged that his current bilateral glaucoma had causal origins in service, or, alternatively, that service-connected BRVO caused or aggravated bilateral glaucoma beyond the natural progression of the disease process.  

Initially, the RO afforded the Veteran an examination with an optometrist in January 2009.  This clinician opined that as there was no documentation of glaucoma in service, it was not at least as likely as not that such a condition had origins on active duty.  Further, a negative opinion, offered without rationale, was offered with respect to the contended secondary theory of entitlement.  

The Board noted in June 2014 that the January 2009 optometry examination was not particularly helpful in resolving the appeal.  In determining that the Veteran had glaucoma, the Board did not think that it was necessary for a new examination to be afforded.  Instead, the claim was dispatched to an expert in ophthalmology with the VHA for a claims review and etiology opinion.  The VHA physician was asked to review various internet journal entries submitted by the Veteran.  These journals were submitted with the contention that eye pressure readings noted towards the end of active duty in May 2003 were higher than clinically normal, and that these pressure readings indicated an onset of glaucoma.  The Veteran had also submitted articles which posited a potential linkage between BRVO and the later development of glaucoma.  

As the resolution of the appeal can be made with respect to the contended direct theory of entitlement, the Board will focus solely on this portion of the opinion returned by the VHA ophthalmologist.  

Specifically, in an October 2014 opinion, the VHA specialist noted the Board's question as regards a direct causal relationship between service and current glaucoma.  The May 2003 in-service eye pressure readings were noted to be "26/23mmHg" and then "22mmHg in both eyes via tonometry by applanation."  In addition to this finding, "inferior hemorrhages in the left retina were found consistent with BRVO."  The specialist noted that the Veteran was referred to ophthalmology by in-service medical personnel; however, "despite asymmetric cup to disc ratios (a risk factor for glaucoma), a work up for glaucoma was not initiated."  The VHA doctor went on to list other in-service eye pressure readings to show the entirety of the disability picture presentation.  With respect to an etiology, the examiner offered a positive opinion that bilateral glaucoma had causal origins in service.  The rationale was that "above normal eye pressure (ocular hypertension)" which was greater in the right eye, was present during active service.  The additional presences of "inflammation" in the eyes and BRVO during service were listed as "entities [which] increase the risk of the patient developing glaucoma."  

This opinion was authored by an expert in ophthalmology, with a specialty in treating glaucoma, from the VA Medical Center (VAMC) in Las Vegas, Nevada.  It is well-rationalized, in that the allegations of above-average ocular pressures occurring in May 2003, as documented in the submitted internet journals as being indicative of glaucoma, were confirmed as being applicable to the Veteran in a specific sense.  The physician explained that ocular hypertension, or eye pressure readings, is indicative of glaucoma and that these symptoms were clearly present in the Veteran during his service.  It is indicated that the Veteran should have had additional work-ups by in-service ophthalmology personnel when these pressures were recorded (in addition to other risk factors such as the abnormal "cup to disc ratios").  In essence, the VHA physician provided the medical basis for establishing a diagnosis of glaucoma, which is well within the scope of his expertise, and stated that the Veteran, unequivocally, had glaucoma symptomatology while on active duty.  

The only evidence that is against this finding is the aforementioned 2009 optometry examination report.  As noted, this report does not contain a rationale to support its conclusions, and when compared to the well-rationalized specialist's opinion of October 2014 (authored by a medical doctor with specific expertise in treating glaucoma), it cannot be considered as being particularly probative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

As this is the case, the competent and probative evidence of record shows that the Veteran first demonstrated ocular pressures consistent with bilateral glaucoma while in active service in May 2003.  Subsequent to separation, the Veteran has been regularly treated for the condition and has a current diagnosis of bilateral glaucoma.  As such, it has been determined that the glaucoma had causal origins in active service, and the claim for service connection will be granted.  




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ORDER

Entitlement to service connection for bilateral glaucoma is granted.  


____________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs