Citation Nr: 1717167 Decision Date: 05/18/17 Archive Date: 06/05/17 DOCKET NO. 10-29 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a right eye disorder, to include as secondary to service-connected left eye disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to March 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In June 2015, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. In September 2015, the Board remanded this matter for further evidentiary development. FINDING OF FACT The Veteran's right eye disorder is not the result of disease or injury in active service, and is not proximately due to, or aggravated by, service-connected left eye disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for a right eye disorder, to include as secondary to service-connected left eye disorder, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2016). In the instant case, VA provided an adequate notice in letter sent to the Veteran in April 2009. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Regarding the duty to assist, the Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. The evidence includes available service treatment records (STRs), VA treatment records, private treatment records, and statements from the Veteran and his representative, to include June 2015 Board hearing testimony. In May 2016, the RO sought to obtain Social Security Administration (SSA) records. However, in a May 2016 response, the SSA National Records Center indicated that such records did not exist and further efforts to obtain them would be futile as the medical records had been destroyed. Pursuant to the September 2015 Board Remand, the Veteran was afforded a May 2016 VA examination and an opinion was obtained in response to the Board's remand directives. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim decided herein has been met. 38 C.F.R. § 3.159(c)(4). Additionally, VA treatment records since May 2015 were obtained. All of the actions previously sought by the Board through its prior development request appear to have been substantially completed as directed, and the Veteran does not contend otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). There is no indication of relevant, outstanding records that would support the Veteran's claim decided herein. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, 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). 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). The Veteran contends that he has a right eye disorder that is related to service. Specifically, he contends that he has a right eye disorder that is related to his service-connected left eye disorder. He essentially maintains that he has overcompensated for the bad vision in his left eye which has caused his vision in his right eye to deteriorate. The Board notes that the Veteran has also claimed that service connection should be granted for a right eye disorder under the provisions of 38 C.F.R. § 3.383 (2016). The Board notes, however, that such provision refers to special consideration for paired organs and extremities when rating a disability. As pertinent to this case, the provision allows for rating of a nonservice-connected eye disability as if it were service-connected if the other eye has a service-connected disability and the impairment of vision in each eye is rated at a visual acuity of 20/200 or less or the peripheral field of vision for each eye is 20 degrees or less. This provision only applies to rating paired organs and does not apply to establishing entitlement to service connection for a disability. In other words, the provision provides no basis to establish entitlement to service connection for a disability. The Veteran's service treatment records do not show complaints, findings, or diagnoses of any right eye problems. Such records do show treatment for a left eye disorder and the Veteran is currently service-connected for a left eye disorder. Post-service private and VA treatment records show treatment for variously diagnosed right eye disorders on numerous occasions. An April 1989 VA eye examination report noted that the Veteran complained of a headache and blurred vision. He stated that he could not judge distances and that his left eye would not open completely. The diagnoses included optic atrophy of the left eye and rule out glaucoma of the right eye. The examiner indicated that there was no evidence of sympathetic ophthalmological findings. A May 2009 VA eye examination report included a notation that the Veteran's claims file was reviewed. The Veteran stated that his right eye condition was aggravated by his left eye condition. He complained of blurry vision, a loss of central vision, and a loss of peripheral vision. The diagnoses were no light perception in the left eye, secondary to trauma in 1968, with aphakia; glaucoma of the right eye, not due to trauma as it was open angle glaucoma; and slight cataracts of the right eye. The examiner commented that the Veteran's left eye condition had not caused or aggravated the right eye condition. The examiner stated that the Veteran's right eye had glaucoma that was based on age and his genetic history. An August 2014 VA Humphrey Visual Field Testing report noted that testing was performed on the Veteran's right eye only because his left eye had no light perception. As to an interpretation, the examiner indicated that the Veteran's right eye had dense glaucomatous visual field defects with few points above and below fixation spared. The assessment was that the Veteran had a visual field defect of the right eye, with less than 20 degrees remaining, secondary to advanced glaucoma, and that he was essentially monocular secondary to optic atrophy related to trauma (left eye) with advanced glaucoma in the right eye. The diagnoses were listed as legally blind with a visual field deficit of less than 20 degrees; advanced glaucoma in the right eye; and optic atrophy in the left eye secondary to trauma. An additional August 2014 VA treatment report, the next day, related an assessment of nuclear sclerosis of the right eye, with anterior subscapular cataracts likely becoming very sensitive as the Veteran was monocular and had more sensitivity to disturbances caused by the central nature of changes; glaucoma of the right eye, advanced; monocular right eye, with refractive error; and optic atrophy of the left eye secondary to blunt trauma, stable, no light perception, no pain. A December 2014 VA eye conditions examination report included a notation that the Veteran's claims file was reviewed. The diagnoses were a blind left eye due to optic atrophy from a blunt trauma explosion while in service; glaucoma of the right eye; and a cataract of the right eye. The examiner indicated that the Veteran's right eye condition was less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected left eye condition. The examiner stated, as to a rationale, that the Veteran's right eye condition of glaucoma was less likely than not due to or the result of the left eye. In the September 2015 Board remand, the Board observed that the April 1989 and May 2009 VA eye examination reports, and the December 2014 VA eye conditions examination report, did not address whether the Veteran's current right eye problems were directly related to his period of service. Additionally, the Board found that the respective examiners provided little, if any, rationales for their opinions that the Veteran's claimed right eye disorder was not related to his service-connected left eye disorder. Upon VA examination in May 2016, the examiner stated that a review of the Veteran's claims file indicated that his diagnosis of glaucoma was made around 1989. There was no reference found for a diagnosis of glaucoma in the Veteran's service treatment records. VA treatment records from September 13, 2006 indicated that a family history of glaucoma was reported. Based on a chronological review of eye treatment records, the examiner opined that the Veteran's glaucoma was likely hereditary and not related to service. He further determined that the Veteran's right eye cataract was age related and not due to service. The examiner additionally opined that the decreased visual acuity and severely constricted visual fields in the Veteran's right eye were due to advanced glaucoma. Review of the Veteran's claims file, to include VA and private treatment records, was consistent with the diagnosis of glaucoma. The examiner indicated that the Veteran's left eye disorder of loss of vision from central vein occlusion occurred in 1966 and that his glaucoma was not detected or diagnosed until approximately 1989. The Veteran's progressive loss of visual acuity and loss of vision in the right eye was documented as occurring over the last few years with the current level of vision noted around 2015. A review of clinical records did not indicate any relationship to the left eye condition. VA treatment records from April 28, 1989 reflect a diagnosis of rule-out glaucoma OD and there was no evidence of sympathetic ophthalmia. The May 2016 VA examiner explained that "sympathetic ophthalmia is a condition in which a normal eye degenerates due to inflammation triggered by the other eye that has had significant injury and/or surgery. The condition is diagnosed by the presence of chronic granulomatous uveitis in the good eye." He continued to state that clinical records show no evidence of this condition. Therefore, based on examination findings and a review of clinical records, the examiner opined that the Veteran's condition of advanced glaucoma in the right eye resulting in decreased vision and constricted visual fields was not due to the Veteran's left eye disorder of loss of vision from central artery occlusion. The Veteran's worsening vision symptoms in the right eye were due to the advanced glaucoma. In conclusion, the VA examiner opined that, based on a review of records and examination findings, the Veteran's left eye disorder of loss of vision from central artery occlusion had not aggravated or worsened the natural clinical course of glaucoma in the right eye. Lastly, the examiner stated that the Veteran's right eye condition of advanced glaucoma was not caused by or worsened by the prior diagnosis of loss of vision in the left eye from central artery occlusion in 1966. The Veteran's cataract in the right eye was age-related and not related to the left eye condition of loss of vision from central artery occlusion in 1966. As shown above, service treatment records contain no treatment or diagnosis of a right eye disorder. A right eye disorder was not detected or diagnosed until approximately 1989. Upon thorough review of the Veteran's claims file, the May 2016 VA examiner opined that the Veteran's glaucoma was likely hereditary and not related to service and his cataract was likely age related and not related to service. With respect to secondary service connection, the May 2016 VA examiner opined that the Veteran's condition of advanced glaucoma in the right eye was not due to his service-connected left eye disorder. The examiner explained that the Veteran's worsening vision symptoms in the right eye were due to the advanced glaucoma, which the examiner noted was due to hereditary factors. In addition, the examiner found that the Veteran's left eye disorder had not aggravated or worsened the natural clinical course of glaucoma in the right eye. This evidence weighs against the onset of a right eye disorder during the Veteran's period of service or as secondary to his service-connected left eye disorder. There is no competent evidence of record to refute the findings from the VA medical examination reports and the Board finds the May 2016 VA examiner's findings and opinions to be particularly the most probative evidence of record as the opinion is based on a factually correct premise and contains a thorough rationale. Moreover, the Board acknowledges the lay statements by the Veteran in support of his claim and regarding the medical etiology for a right eye disorder. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, determining whether the Veteran's currently diagnosed right eye disorder had its onset in service or is secondary to his service-connected left eye disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d at 1377 n.4. Consequently, service connection for a right eye disorder on a direct or secondary basis is not warranted. The preponderance of the evidence is against the claim of service connection for a right eye disorder. There is no doubt to be resolved and service connection is not warranted for a right eye disorder. See 38 U.S.C.A. § 5107 (b); 3.102. ORDER Service connection for a right eye disorder is denied. ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs