Citation Nr: 1756064 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 10-36 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for glaucoma, to include as due to diabetes mellitus (diabetes). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. B., Counsel INTRODUCTION The Veteran served on active duty from May 1970 to May 1974. The appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. However, prior to the promulgation of a decision in his appeal, the Veteran died in May 2012. As such, in July 2012, the Board dismissed his appeal. Later in July 2012, the appellant requested that she be substituted into the Veteran's claims pursuant to the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat 4145, 4151, (2008) (codified at 38 U.S.C.A. § 5121A). In an August 2012 letter to the appellant, the agency of original jurisdiction (AOJ) accepted the appellant's request to act as a substitute on behalf of the Veteran for this appeal, which was pending at the time of his death. In January 2014, the Board denied all of the claims on appeal. The appellant appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In February 2015, the parties entered into a Joint Motion to Terminate the Appeal in Part. This motion stipulated that the Veteran was exposed to herbicide agents during his service aboard USS VANCOUVER (LPD-2), and agreed that VA would grant the claims of service connection for diabetes mellitus and coronary artery disease as due to exposure to herbicides. The appellant agreed to terminate her appeal with respect to service connection for erectile dysfunction, hyperlipidemia, and obesity. The parties then agreed that the claims for service connection for peripheral neuropathy of the bilateral lower extremities, hypertension, glaucoma, and obstructive sleep apnea were to remain in appellate status, as consideration of the claims as secondary to the newly service-connected diabetes mellitus by the Board was warranted. The Court implemented the Joint Motion to Terminate the Appeal in Part in a February 2015 Joint Motion for Partial Vacatur and Remand, which remanded the issues of service connection for peripheral neuropathy of the bilateral lower extremities, hypertension, glaucoma, and obstructive sleep apnea to the Board for readjudication consistent with its Order. The matters were remanded in July 2015 for additional development. While on remand, service connection for peripheral neuropathy of the bilateral lower extremities was granted in a January 2016 rating decision. In addition, service connection for hypertension was granted in an April 2017 rating decision. Therefore, as these decisions represent a full grant of the benefits sought on appeal with regard to peripheral neuropathy and hypertension, the issues are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The July 2015 remand also took jurisdiction of the appellant's claims for higher initial ratings for the service-connected diabetes mellitus and coronary artery disease, and remanded them for the issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). An SOC was issued in September 2016 and in November 2016, the RO found that a subsequent VA Form 9 was untimely. The issue of timeliness of the VA Form 9 is not before the Board. In September 2016, the Board denied service connection for sleep apnea and remanded the claim for service connection for glaucoma for additional development. FINDING OF FACT Resolving all doubt in the Veteran's favor, glaucoma is proximately related to service-connected diabetes mellitus (diabetes). CONCLUSION OF LAW The criteria for service connection for glaucoma are met. 38 U.S.C. §§ 1110, 1111 (West 2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110 (West 2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: "(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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection is provided for a disability, which is proximately due to, or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (2017). The Court has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). Before his death, the Veteran submitted a claim of entitlement to service connection for any eye disorder, which has been diagnosed as glaucoma, which he asserted was related to his service-connected diabetes. His surviving spouse has continued this claim for any benefits that may have accrued prior to his death. The evidence of record reflects that the Veteran was diagnosed with diabetes in 1994 and with glaucoma in 2001. In support of his claim, he submitted statements in January 2002 and February 2008 from his own physicians, who stated that the Veteran's glaucoma was a symptom of his diabetes. However, there were no supporting bases for these opinions. While the record also includes opinions in January and November 2016 from a VA optometrist who stated that there was "no medical evidence linking diabetes and glaucoma," it is unclear whether the opinion is referencing the medical evidence in the file or medical treatise evidence. Finally, in a July 2017 Brief, the appellant's representative cited to an Internet article from a website which states that "when fluid inside the eye does not drain properly from a buildup of pressure in the eye, it results in another eye problem with diabetes called glaucoma. The pressure damages nerves and the vessels in the eye, causing changes in vision." Given the conflicting evidence, the Board obtained a Veterans Health Administration (VHA) opinion in October 2017. The VA ophthalmologist stated that while the etiology of glaucoma is multifactorial, diabetes can increase one's risk of getting glaucoma due to the ischemic nature of diabetes. The opinion stated that as there were no eye examinations prior to the onset of diabetes in 1994, the examiner cannot conclude with any certainty that diabetes was the cause of the Veteran's glaucoma. However, the opinion definitively stated that diabetes increased the Veteran's risk of getting glaucoma overall. Based on the forgoing, and resolving all doubt in the Veteran's favor, the Board finds that at the very least the evidence is in equipoise as to whether the Veteran's service-connected diabetes caused his glaucoma. As such, the claim for service connection for glaucoma, as proximately caused by service-connected diabetes, is granted. ORDER Service connection for glaucoma is granted. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs