Citation Nr: 1510546 Decision Date: 03/12/15 Archive Date: 03/24/15 DOCKET NO. 08-16 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for an eye disability, to include as secondary to diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to January 1972. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in September 2008. A transcript of the hearing is associated with the claims file. In February 2010, August 2011, and December 2013, the Board remanded this case for further development. FINDING OF FACT The evidence does not show that the Veteran's current eye disability was present during service; it is not otherwise attributable to the Veteran's period of military service or to a service connected disability. CONCLUSION OF LAW An eye disability was not incurred in or aggravated by service, nor was it proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record that is necessary to substantiate the claim; that VA will seek to provide; and that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Board finds that the required notice was met through correspondence sent to the Veteran during the course of the claim. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a September 2008 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's remands, VA associated additional VA treatment records with the claims file, sought and obtained the Veteran's Social Security Administration (SSA) records, and provided the Veteran with a medical examination in February 2014. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation, then offered opinions as to the nature and etiology of the claimed disability, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. Thus VA has complied with the February 2010, August 2011, and December 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the hearing the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to the Veteran's theory of etiology. Ultimately the claim was remanded for an examination. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with these duties; they have not identified any prejudice in the conduct of the Board hearing. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Analysis The Veteran and his representative have argued that his eye condition was caused by his service connected diabetes mellitus. The Veteran has not argued that his eye condition was caused by his military service. Nevertheless, the Board has considered whether direct service connection is warranted. To prevail on the issue of direct service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has current diagnoses of myopia, astigmatism, glaucoma, angle recession, floppy eyelid syndrome, and cataracts. Refractive errors of the eyes, such as myopia and astigmatism, are not diseases or injuries within the meaning of the applicable legislation. See 38 C.F.R. §§ 3.303(c), 4.9. The remaining diagnoses, however, as sufficient to satisfy the current disability requirement. With regard to the requirement of an in-service occurrence or aggravation of a disease or injury, the Veteran's entrance examination and separation examination show the same level of correctable vision impairment. Although the Veteran reported a childhood eye injury in the accompanying reports of medical history, no eye abnormality was found by either examiner. Additionally, the February 2014 examiner found that there was not clear and unmistakable evidence that the Veteran's glaucoma pre-existed his military service. The only eye-related treatment shown in his service treatment records was for a left eye chalazion in February 1970. Thus, the in-service occurrence requirement is satisfied with regard to this February 1970 treatment for chalazion. The record does not contain evidence of a medical nexus between the in-service disease or injury and the Veteran's current disability. The February 2014 examiner found that the treatment of a chalazion in 1970 has no relation to any of the Veteran's current eye conditions. The record does not contain any other medical evidence, and the Veteran has not provided lay evidence, suggesting such a causal link. Thus, direct service connection is not warranted. Alternately, service connection may be established on a secondary basis for a 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 Veteran has claimed service connection for his eye condition as secondary to his diabetes mellitus. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As noted above, the Veteran has current eye disability diagnoses. Likewise, he is service connected for diabetes mellitus. Thus, the first two requirements for secondary service connection have been satisfied. The remaining question is whether the record contains medical nexus evidence establishing a connection between the service-connected diabetes mellitus and the current eye condition. In this regard, the multiple VA medical examiners agree that the Veteran's eye condition, to include glaucoma, is not due to his diabetes mellitus. See generally VA examinations. The August 2011 examiner attributed the Veteran's higher right eye intraocular pressure to his reported ocular trauma to right eye in childhood. This examiner also found that the Veteran's glaucoma was not caused or impacted by his diabetes mellitus, citing to a glaucoma study which found not association of glaucoma with diabetes and another evaluation that found diabetes was not a risk factor for glaucoma. The February 2014 examiner concurred with the earlier examiners in 2005, 2006, 2010, and 2011 and further found that it was less likely than not that the Veteran's current eye condition of glaucoma was aggravated by his service connected diabetes mellitus. In doing so, this examiner referred to a consensus statement from the World Glaucoma Association, which found that although diabetes had previously been routinely assumed to be a risk factor for primary open angle glaucoma (POAG), within the last 15 years it failed to show an association with POAG in several population-based studies and clinical trials. This statement further posited that "the past association between diabetes and glaucoma may have been partly derived from ascertainment bias because diabetes patients might have more eye examinations (glaucoma more likely to be discovered)" and found that the relationship between diabetes and the risk of glaucoma development and progression remained unclear. These opinions are uncontradicted by the medical evidence of record. To the extent that the Veteran himself believes that his current eye condition is due to his service connected diabetes mellitus, the Board acknowledges that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and requires an understanding of how a metabolic disease (diabetes) affects ocular function. As such, the Veteran is not competent to address etiology in the present case. Therefore, service connection is not warranted. In short, for reasons expressed immediately above, the claim of service connection for an eye disability must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not helpful to the claimant. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for an eye disability is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs