Citation Nr: 1752078 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-00 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for glaucoma, to include as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran had active military service from May 1966 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The May 2008 rating decision denied, inter alia, the Veteran's claim for service connection for glaucoma, claimed as eye disorder. The Veteran filed a notice of disagreement (NOD) in February 2009, and the RO issued a Statement of the Case (SOC) in November 2009. The Veteran subsequently filed a substantive appeal (VA 9) in January 2010, in which he identified the denial of service connection for glaucoma as the specific issue with which he wanted to pursue on appeal. The RO issued a Supplemental SOC in July 2011. The Veteran was afforded a Board hearing at the local Regional Office in March 2012. A transcript of the hearing has not been associated with the claims file. In August 2014, the Board sent a notice to the Veteran advising him that the transcript was not produced due to technical difficulties. At that time, the Veteran was offered an opportunity to appear for another hearing before the Board. The notice also informed the Veteran that if he did not respond within 30 days, the Board would assume that he did not desire another hearing and proceed accordingly. The Veteran submitted a statement in September 2014 in which he opted to not appear at another Board hearing. Hence, the Board continued to decide the claims with the evidence of record. In an October 2014 decision, the Board denied service connection for glaucoma, to include as secondary to the service-connected diabetes mellitus, type II. The Veteran appealed the October 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court), which, by Order dated June 2015, granted a Joint Motion for Partial Remand (JMPR), vacated that part of the October 2014 Board decision that denied service connection for glaucoma, to include as secondary to the service-connected diabetes mellitus type II, and remanded the matter for action consistent with the terms of the JMPR. Specifically, pursuant to the terms of the JMPR, the parties agreed that the Board erred in not obtaining an opinion as to whether the Veteran's glaucoma was aggravated by his service-connected diabetes mellitus, type II. The parties also agreed that there was no deficiency in the Board's treatment of the issue of outright service connection (for glaucoma), and that the part of the Board's October 2014 decision that granted an initial 10 percent rating, but no higher, for hypertension was to remain undisturbed. In October 2015, in accordance with the directive of the JMPR, the Board remanded the matter of service connection for glaucoma, to include as secondary to service-connected diabetes mellitus type II. The Board requested an addendum opinion regarding the etiology of the Veteran's glaucoma. The opinion was obtained in February 2016. A Supplemental SOC was issued in March 2016. The Board remanded this matter again in July 2016 and May 2017 for new etiology opinions that address the question of aggravation, and a Supplemental SOC was issued most recently in September 2017. It has been returned to the Board for adjudication. FINDING OF FACT The Veteran's glaucoma did not have its onset during and is not otherwise related to active military service; glaucoma is not proximately due to, or aggravated by the Veteran's service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for establishing service connection for glaucoma, to include as secondary to diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implantation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2017). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Prinicipi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. The Veteran was provided notice in a September 2007 letter, which addressed what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. This letter also informed the Veteran of what information and evidence must be submitted by the appellant and what information and evidence would be obtained by VA. The letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The September 2007 letter was sent to the Veteran prior to the adjudication of either of the issues on appeal, and thus, it met the VCAA's timing of notice requirement. The Veteran was also afforded several VA examinations, to include in October 2009 and August 2017, to determine the severity of his service-connected diabetes mellitus, type II, to determine what, if any, complications the Veteran had from the disease, and to determine what, if any, relationship there was between any current glaucoma and diabetes mellitus. The VA examinations are sufficient, as they are based on consideration of the Veteran's prior medical history and examination and review of the record. The Board finds these examinations are adequate to make a determination on the issue of service connection for glaucoma. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303 (2017). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran contends he is entitled to service connection for glaucoma on the basis that the condition developed as a result of his diabetes mellitus, type II. Initially, the Board notes that the Veteran does not contend, and the evidence does not show, that he had any in-service complaints, diagnoses, or treatment of any eye problems, to include glaucoma. The record does not show an in-service incurrence or aggravation of glaucoma. The Veteran's service treatment records are absent any complaints or diagnoses of eye problems. At separation in February 1969, the Veteran's clinical evaluation revealed no abnormalities of the eyes, to include opthalmoscopic, pupils, and ocular motility. On his separation report of medical history, the Veteran himself denied any eye trouble. Indeed, the first objective post-service evidence of glaucoma is February 2007, which is approximately 38 years after the Veteran's period of active service. As glaucoma was not shown for many years after the Veteran's period of service, this weighs against a claim that it was related to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). Moreover, at no time did any of the Veteran's treating providers find that his glaucoma was related to his period of active service. The Board therefore finds that entitlement to service connection for glaucoma as directly related to service must be denied. The Board will thus focus on the question of whether service connection for glaucoma as secondary to service-connected diabetes mellitus is warranted, to include based on aggravation of glaucoma by diabetes mellitus. This latter question was the point of focus of the June 2015 Court JMPR. The Board notes that this claim was remanded by the Board on three separate occasions in order to address inadequacies with the resulting opinions. The Board finds that the record now contains adequate evidence to adjudicate the secondary service connection claim, to include based on aggravation. VA treatment records from September 2006 show that the Veteran was seen for suspected glaucoma based on increased cup-to-disc ratio (C/D). At that time, the Veteran complained of intermittent blurred vision. Private treatment records dating from February 2007, April 2007, and August 2007 show that the Veteran had been diagnosed with glaucoma. Specifically, VA outpatient treatment records from December 2005, March 2006, and September 2006 show that the Veteran was seen for suspected glaucoma. See December 2005 VA Eye Clinic-Comprehensive Eye Examination (glaucoma suspect due to ON asymmetry); March 2006 VA Eye Clinic- Visual Field Testing (HVF of both eyes revealed no glaucoma pattern; impression of glaucoma suspect, per history); September 2006 VA Eye Clinic (good IOP; slight thick CCT; thinning noted on GDX; VF revealed no glaucoma pattern defect; impression of glaucoma suspect based on increased C/D; previous GDX showed mild thinning with borderline NFI, both eyes; HVF (9-19-2006) and previous HVF were not consistent); September 2006 VA Eye Clinic - Follow Up (VF/IOP were okay; assessment: glaucoma suspect based on increased C/D, both eyes; previous GDX should mild thinning with borderline NFI, both eyes; HVF (9-27-2006) showed relatively clear fields, not producing defects shown on the field from 9-19-2006; thick pachs within normal limits and average IOPs); March 2007 VA Eye Clinic (assessment: glaucoma suspect based on increased C/D, both eyes; IOP is about the same without medication; GDX is unchanged from previous GDX 1-year ago; and previous HVF was clear, both eyes). In addition, private treatment records from the Eye Clinic Associates Morristown, Inc., dated February 2007, April 2007, and August 2007, show that the Veteran has been diagnosed as having bilateral glaucoma. See February 2007 Eye Clinic- Morristown (diagnoses included glaucoma, bilaterally); April 2007 Visual Field Interpretation Report (Type of Visual Field: central 24-2 threshold; assessment: generalized depression in both eyes; Confrontation Field: full in both eyes and restricted; impression: bilateral glaucoma); April 2007 GDX - Optic Nerve Scan Interpretation (Fund Image: both eyes, good moderate cupping, optic disc; Thickness Map: both eyes, does not compare with normal range/double peak prater, possible IVCC of RNFL; Nerve Fiber Analysis: both eyes, most all values shown as green in color indicating results were within normal limits; Number: both eyes, 0-30 analysis indicated low ONI nerve damage; Summary: abnormal GDX, both eyes); August 2007 Gonioscopy (indication testing for glaucoma - Shaffer's Gravity: number 4, 35-45 degrees; Test Relativity: good; the 4 mirror; interpretation: 360 degrees open); August 2007 Retinal Photos (negative NVE; negative NVD; negative NVI; Disc C/D: 8 for right eye, and 9 for left eye; Macular: clear for both eyes, and No pigment/Dru for both eyes; Periphery: No, for both eyes for all categories); August 2007 Gonioscopy and Retinal Photos (impression: primary open-angle glaucoma, bilateral). A diagnosis of bilateral open-angle glaucoma was noted during VA examinations in May 2008 and October 2009. In October 2009, the Veteran underwent a VA examination to determine the severity of his diabetes mellitus, and to determine what, if any, complications the Veteran suffered from as a result. The examiner offered an opinion as to the etiology of the Veteran's open-angle glaucoma. The examiner noted that the Veteran was diagnosed with open-angle glaucoma in March 2007. He additionally stated that the Veteran is treated from a non-VA provider and that the glaucoma is being successfully controlled with eye drops. The examiner stated that he could not resolve the issue of the etiology of the Veteran's glaucoma with resorting to speculation. He went on to state that there is "no clear-cut etiology" for open-angle glaucoma and that it is not a secondary condition. Further, he indicated that the literature "suggests that there could be a nexus with certain systemic conditions such as diabetes, but no link has been definitively established." Finally, the examiner relayed that "in the absence of a precipitating event such as ocular trauma or surgery, or a direct systemic link, it is not possible to comment on the etiology" of the Veteran's glaucoma. In February 2016, the VA examiner conducted an examination and reviewed the claims file, the VA treatment records, and the private treatment records. He diagnosed the Veteran as a glaucoma suspect. He noted that the Veteran has a long history of being a glaucoma suspect and that he was treated for glaucoma for a brief time. Currently, he noted that the Veteran was being followed as a suspect and that no treatment had been used in a few years. He also noted that the Veteran is diabetic but has no retinopathy presently. The examiner provided the opinion that the condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. He provided a rationale that, to this point, the Veteran has not been diagnosed with glaucoma. He noted that the Veteran had "some constriction" on his Goldman test, but he indicated that the Veteran's IOP was normal and that his optic disc findings were stable. Thus, with the absence of a true diagnosis for glaucoma, the examiner stated that it was not related to his diabetes mellitus, type II. In its July 2016 remand, the Board noted that the service connection requirement of a current disorder being present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the [VA] Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319 (2007). In the case at hand, though the February 2016 examiner found that the Veteran did not have a current diagnosis of glaucoma, the record shows that the Veteran was previously diagnosed with and treated for the disability. As such, the Board again remanded this claim for an examination and an opinion as to whether the Veteran has developed glaucoma, and if so, whether this disorder can be attributed in any way to the Veteran's service-connected type II diabetes mellitus. Another opinion was obtained in August 2016. The examiner opined that the Veteran does not have glaucoma at this time. He noted that while the Veteran's optic nerve head appearance is suspicious, all objective and clinical testing suggests that it is physiologic cupping, not a disease process. Since at least 2005, the examiner noted that the Veteran had been routinely tested for development of glaucoma through intra-ocular pressure checks, pachymetry, gonioscopy, visual field testing, and GDx and OCT scanning laser imaging, but that the results have not pointed to a diagnosis of glaucoma. The examiner noted that, though the Veteran does not currently have glaucoma, it could still develop in the future, which is why the Veteran has been tested so often. Thus, the examiner opined that the Veteran does not have an eye disorder, to include glaucoma, that is at least as likely as not secondary to service-connected diabetes mellitus, type II. The May 2017 Board remand determined that, unfortunately, another remand was required in light of the August 2016 opinion. As an initial matter, the examiner did not specifically discuss the earlier diagnoses of glaucoma, including: (1) VA treatment records dated December 2005, March 2006, September 2006, and March 2007 (containing clinical data from an increased cup-to-disc ratio which suspect a diagnosis of glaucoma); (2) private medical records dated February 2007, April 2007, and August 2007 (containing clinical data which were used to support a diagnosis of glaucoma); (3) May 2008 VA examination report (indicating a diagnosis of glaucoma); and (4) October 2009 VA examination report (containing notation of a March 2007 diagnosis of open-angle glaucoma). Thus, the Board again remanded the claim so that remedial compliance with the Board's July 2016 remand, including the specific directive to the examiner clarifying the existence of the earlier diagnoses of glaucoma, could occur. The July 2017 VA eye conditions examination report diagnosed "High Risk Glaucoma Suspect." It noted that the Veteran had no decrease in visual acuity or other visual impairment due to this condition. The examiner noted review of the claims file and in-person examination of the Veteran. The May 2017 Board remand had asked the examiner the following question: Based on the results from the private clinical evaluations and diagnostic tests and studies conducted in February 2007, April 2007, and August 2007, can it be determined with a reasonable degree of medical certainty that the Veteran has a diagnosis of glaucoma? In response, the examiner stated that this question in incomplete. He noted that, in 2007, Dr. Hyde did diagnose with the Veteran glaucoma and started him on medication. In fact, he noted, Dr. Hyde also saw the Veteran about three months ago and again diagnosed him with glaucoma and started him on medication. So, he opined, yes, Dr. Hyde did diagnose the Veteran with glaucoma. However, the examiner noted, the fact that Dr. Hyde did diagnose the Veteran with glaucoma does not actually mean that the Veteran has glaucoma. He noted that the Veteran is definitely a high-risk glaucoma suspect. He noted that the Veteran is AA with a large c/d ratio. His angles were open and his IOP has been stable in the mid teens most of the time. His nerve fiber layer thickness remained within normal ranges and his visual field remained clear of any definitive glaucomatous defect. The examiner opined that the Veteran's case had not shown enough of a change over time to diagnose him with glaucoma. The examiner stated that, if the Veteran were fully under the examiner's care, he would again take the Veteran off of the medication to see what his IOP does. The examiner stated that he would continue to watch the Veteran closely for OCT or VF changes. However, the examiner did not see evidence yet of progressive glaucomatous neuropathy. He stated that, with that the case, he is unable to link this condition to the Veteran's service-connected diabetes mellitus. In an August 2017 addendum, the examiner addressed the question as to whether glaucoma progressed at an abnormally high rate due to aggravation from his service-connected diabetes mellitus, type II. In response, the examiner opined that, because his opinion was that there was not enough change over time to diagnose the Veteran with glaucoma (and therefore still be considered as only a suspect), then there could be no aggravation from his diabetes mellitus. The competent evidence of record does not provide a link between the Veteran's current diagnosis of glaucoma suspect and the service-connected diabetes mellitus, including based on aggravation. The October 2009 examiner found that he could not provide a nexus opinion on a relationship between diabetes mellitus and glaucoma without resort to speculation. A primary reason for this was that medical literature does not support a definitive link between glaucoma and diabetes. When a Department of Veterans Affairs (VA) medical examiner states no conclusion as to etiology or diagnosis can be reached without resorting to speculation, it must be clear, from either the examiner's statements or the decision of the Board of Veterans' Appeals, that the examiner has considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis; when the record leaves the issue in doubt, it is the Board's duty to remand for further development. An examiner who states no conclusion as to etiology or diagnosis can be reached without resorting to speculation should clearly identify precisely what facts cannot be determined; for example, it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes. See Jones v. Shinseki, 23 Vet. App. 382 (2010). With respect to the question of aggravation, the Board finds that the August 2017 examination report and addendum opinion constitute probative medical evidence weighing against aggravation. These reports address the indications of glaucoma of record and explain the basis for the suspicion of glaucoma and the ultimate conclusion that the Veteran was high risk for glaucoma but that his condition had not progressed to glaucoma. The Board notes that basis for the Court's JMPR was that an adequate opinion was needed on the question of whether the Veteran's diabetes mellitus aggravated his suspected glaucoma. The August 2017 VA examiner determined that, because there was not enough change in the Veteran's condition over time to diagnose him with glaucoma, then there could be no aggravation from his diabetes mellitus. The Board finds that this opinion is highly probative in that it is based on review of the record and interview and examination of the Veteran. It includes a highly-detailed discussion of the Veteran's medical history and the pertinent medical principles. It addresses the earlier indications of glaucoma and explains these findings in the context of later indications that the Veteran does not have glaucoma. The Board notes that the Veteran himself believes that his glaucoma is related to his diabetes mellitus. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2013), as to the specific issue in this case, glaucoma outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report the onset and symptoms of eye trouble, any actual diagnosis of glaucoma requires objective testing to diagnose, and can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). To the extent that the Veteran believes that his glaucoma is related to his diabetes mellitus, as a lay person, he is not shown to possess any specialized training in the medical field. The Veteran's opinion as to the etiology of his glaucoma is not competent evidence, as the nexus question involved in this case requires medical expertise to determine. Id. In this case, the VA examiner clearly explained why he could not determine the etiology of the Veteran's glaucoma with respect to the direct service connection claim. The August 2017 examiner clearly explained the basis for his conclusion that the Veteran was at a high risk for glaucoma but that an actual glaucoma diagnosis was not warranted. As there were no medical records showing that the Veteran was a glaucoma suspect in service and no competent medical evidence that he had such a diagnosis for many years after discharge, and no evidence suggesting a link between his glaucoma and his diabetes, the Board finds that the evidence is against a grant of service connection. For the reasons and bases discussed above, the Board finds that the preponderance of the evidence is against the claim. Accordingly, service connection is not warranted for glaucoma on any basis. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for glaucoma, to include as secondary to service-connected diabetes mellitus, type II, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs