Citation Nr: 1610149	
Decision Date: 03/14/16    Archive Date: 03/22/16

DOCKET NO.  13-21 958	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUE

Entitlement to service connection for glaucoma, to include as secondary to diabetes mellitus, Type II and hypertension.


REPRESENTATION

Appellant represented by:	James M. McElfresh II, Agent


ATTORNEY FOR THE BOARD

C. D. Simpson, Counsel






INTRODUCTION

The Veteran had active service from April 1969 to November 1970. 

This matter came before the Board of Veterans' Appeals (Board) from an April 2012 rating decision of Salt Lake City, Utah, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for a bilateral eye condition associated with diabetes mellitus, Type II.  

In May 2014 correspondence, the Veteran withdrew his hearing request. 

In April 2015, the Board recharacterized the issues on appeal to comport with the medical evidence.  It granted service connection for a bilateral eye disorder, to include cataracts and hypertensive retinopathy.  These issues are no longer on appeal.  It remanded the issue of service connection for glaucoma for additional development, and this issue now returns to the Board.  


FINDING OF FACT

The Veteran does not have glaucoma. 


CONCLUSION OF LAW

The criteria for service connection for glaucoma are not met.  38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2015).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim.  They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Letters, dated in June and November 2011, notified the Veteran about the information and evidence necessary to substantiate the claim, including how VA assigns effective dates and ratings.  A remand for additional notification about how to substantiate the claim is not necessary.  

VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records (STRs) 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 the RO appropriately assisted the Veteran in obtaining indicated treatment and evaluation records, including STRs and VA treatment records.  VA provided adequate ophthalmology examinations and opinions, with the most recent taking place in June 2015.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The June 2015 examination report reflects a review of the claims folder and clinical examination by a physician.  The examiner declined to express an opinion due to the absence of a current diagnosis.  He cited two contemporaneous diagnostic tests that were negative for glaucoma.  His determination that the Veteran did not have glaucoma is supported by the record.  Prior clinical records indicate that the Veteran was assessed as having a diagnostic status of glaucoma, suspect or pre-glaucoma.  The Board considers the June 2015 VA examiner's report that a glaucoma diagnosis is not supported by diagnostic testing highly persuasive evidence weighing against a current disability.  In conclusion, the June 2015 VA examination is adequate for adjudication purposes.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The record is in substantial compliance with the April 2015 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  The June 2015 VA examination report includes a complete clinical evaluation and determination that glaucoma is not present.  The RO/AMC readjudicated the claim in July 2015.  

Accordingly, the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) have been satisfied.  

Analysis

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  In general, service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004).  Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

As relevant, a valid service connection claim must include competent evidence of a current disability.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); 38 C.F.R. § 3.304(f).  The requirements of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 323 (2007).

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) (2015).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) (2015); Allen v. Brown, 7 Vet. App. 439 (1995).  VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation.  38 C.F.R. § 3.310(b).

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."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").  

In relevant part, 38 U.S.C.A. 1154(a) (West 2014) 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).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

The Veteran does not claim and the record does not reflect that the Veteran has eye disability other than glaucoma that is related to service or a service-connected disability.  The Veteran claims that he has glaucoma that is caused by his service-connected diabetes.  

Service treatment records (STRs) are negative for any glaucoma diagnosis or associated ocular symptomatology.  The November 1970 separation examination reflects that the Veteran's eyes, ophthalmoscopic, pupils, and ocular motility were clinically examined and deemed to be normal.  

In January and February 2012, the Veteran was afforded a VA/QTC eye evaluation.  As relevant, the examiner diagnosed glaucoma suspect based upon optic nerve cupping.  The examiner advised close monitoring.  A comprehensive ocular clinical evaluation was conducted with appropriate diagnostic testing.  The examiner reported that the Veteran did not have any decrease in visual acuity or other visual impairment attributable to glaucoma.   

In April 2013, a VA Eye Conditions Disability Benefit Questionnaire (DBQ) was completed.  The examiner diagnosed pre-glaucoma with a January 2012 onset.  He noted that Veteran's complaints about blurred vision.  Ocular testing did not show any contraction of the visual field.  The examiner reported that while the Veteran had a pre-glaucoma assessment there was no clinically observable visual impairment attributable to glaucoma.  

In August 2013, the Veteran submitted an article from the American Diabetes Association reporting an increased glaucoma risk for individual with diabetes.  He asserted that he had glaucoma due to diabetes.  See July 2013 substantive appeal.  

In June 2015, VA reexamined the Veteran.  The Veteran reported that he had diabetes for several years and was told that he might have glaucoma.  He complained about blurry vision in both eyes over the past several years and more recently a floater.  A comprehensive ocular clinical evaluation was conducted with appropriate diagnostic testing.  Notably, the Veteran was not found to have any visual field contraction.  The examiner reported that there was no evidence of glaucoma.  He cited findings from visual field testing and retinal nerve fiber layer scan.  

The Veteran contends service connection is warranted for glaucoma.  As discussed below, a current glaucoma diagnosis has not been demonstrated.  The claim must be denied.

The issue in contention is whether the Veteran currently has glaucoma.  See Brammer, 3 Vet. App. at 225; McClain, 21 Vet. App. 319, 323 (2007).  While the Veteran is certainly competent to report subjective symptoms associated with glaucoma or information conveyed by treating clinicians, the issue of whether he has a clinical glaucoma diagnosis is a complex medical question.  Jandreau, 492 F.3d at 1377 n.4; 38 C.F.R. § 3.159(a)(1).  The Veteran does not possess medical expertise and his reports are biased by their inherent subjectivity.  Consequently, in this particular case, competent medical evidence is required to establish a glaucoma diagnosis.  See also 38 C.F.R. § 3.159(a)(1).  To the extent the Veteran's asserts a self-diagnosis, his reports are not competent evidence and have no probative value.  Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).  

The competent medical evidence regarding a glaucoma diagnosis is limited to the February 2012, April 2013 and June 2015 examination reports.  The February 2012 and April 2013 examiners are qualified as optometrists, and the June 2015 VA examiner is qualified as a physician.  38 C.F.R. § 3.159(a)(1).  The February 2012 VA examiner determined that the Veteran had glaucoma, suspect.  The April 2013 VA examiner characterized the disorder as pre-glaucoma.  They did not find any clinical vision impairment attributable to glaucoma.  Meanwhile, the June 2015 VA examiner stated that glaucoma was not present based upon negative diagnostic testing.  The Board considers the June 2015 VA examiner's determination that glaucoma is not present to be plausible and consistent with the record.  It is highly probative evidence weighing against a current disability.  See Brammer, 3 Vet. App. at 225; McClain, 21 Vet. App. 319, 323 (2007).  Without any clinically observable manifestations of glaucoma, the Board must find that the evidence weighs against a current glaucoma diagnosis.  Id.

The issues of secondary service connection are rendered moot by the absence of a current glaucoma diagnosis.  38 C.F.R. § 3.310.

For the reasons stated above, a current glaucoma diagnosis has not been demonstrated.  The preponderance of the evidence is against the claim, and there is no doubt to be resolved.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Service connection for glaucoma is not warranted.



ORDER

Service connection for glaucoma is denied.  



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs