Citation Nr: 1801391 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 11-31 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for glaucoma of the left eye, to include as secondary to service-connected diabetes mellitus and a right eye disability. 2. Entitlement to service connection for glaucoma of the left eye, to include as secondary to service-connected diabetes mellitus and a right eye disability. 3. Entitlement to service connection for cataracts, to include as secondary to service-connected diabetes mellitus and a right eye disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1969 to August 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran originally brought a claim for service connection for glaucoma of the left eye as secondary to diabetes mellitus in August 2001. The claim was deferred in a January 2002 rating decision and denied in a March 2002 rating decision because the Veteran did not have a current diagnosis. The claim was reopened following the submission of new and material evidence, but it was denied once again. The Veteran perfected his appeal in November 2011. Although the RO reopened the claim of service connection for glaucoma, the Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). The Board remanded this matter in February 2014 to obtain a re-examination by the VA examiner who provided a January 2010 examination. In March 2017, the Board remanded this matter once again to obtain an addendum opinion to address an alternative theory for service connection raised by the Veteran's representative in a December 2016 post-remand brief. In September 2017, the Veteran's representative filed an additional post-remand brief raising the applicability of 38 C.F.R. § 3.383 Special Consideration for Paired Organs and Extremities and, on that basis, he requested an examination to determine the visual acuity of the Veteran's left eye. However, this provision does not provide for an actual grant of service connection. Rather, where a disability in one eye is service-connected, it authorizes compensation for a non-service-connected disability in the other eye as if that disability were service-connected. This provision is irrelevant to the issue of service connection presently before the Board and, accordingly, an additional examination is not necessary for the purposes of this appeal. Should the Veteran wish to apply for an increased rating for his service-connected right eye disability under 38 C.F.R. § 3.383, he may do by so submitting a completed VA Form 526 to his RO. The record reflects that the Veteran is diagnosed with cataracts. Accordingly, the Board finds it appropriate to expand the scope of his service connection claim pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Therefore, the Board has recharacterized the Veteran's claim for service connection as reflected on the title page. FINDINGS OF FACT 1. In a March 2002 rating decision, the RO denied service connection for glaucoma of the left eye. The Veteran did not perfect a timely appeal of this decision. The Veteran's glaucoma of the left eye is neither of service origin nor is it caused or aggravated by the Veteran's service-connected diabetes mellitus or his service-connected right eye disability. 2. The Veteran's cataracts are neither of service origin nor are they caused or aggravated by the Veteran's service-connected diabetes mellitus or his service-connected right eye disability. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for glaucoma. 38 U.S.C.A. §§ 5103 , 5103A, 5104, 5107, 5108, 7105 (West 2012); 38 C.F.R. §§ 3.156 , 3.159, 20.1103 (2017). 2. The criteria for service connection for glaucoma of the left eye have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 2. The criteria for service connection for cataracts have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017). Here, the RO issued pre-adjudicatory notice to the Veteran in July 2009 that satisfied the duty to notify. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records and service personnel records were obtained, and a VA examination was provided in January 2010. Pursuant to Board remand directives, the Veteran was re-examined in July 2014 and an addendum opinion was provided in March 2017. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative. To the extent that the Veteran's representative takes issue with the fact that the VA examiner is an optometrist rather than an ophthalmologist, the Board notes that VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions, whether that is a medical doctor or other medical specialist. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Here, there is no evidence to suggest that the VA optometrist who performed the examination and provided the opinions was not qualified to do so, particularly because optometrists are, in fact, eye specialists qualified to diagnose and treat disabilities of the eye. The Board may assume the competency of any VA medical examiner, including nurse practitioners, as long as the examiner is otherwise qualified to offer those opinions. See Cox, 20 Vet. App. at 569; Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009); Hilkert v. West, 12 Vet. App. 145, 151 (1999) (an appellant bears the burden of persuasion to show that the Board's reliance on an examiner's opinion was in error). For these reasons, the Board finds that VA has fulfilled its duties to notify and assist the Veteran. New and Material Evidence Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual analysis may not be considered. 38 U.S.C.A. §§ 7104, 7105. Under 38 U.S.C.A. § 5108, however, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." In this regard, although the RO reopened the previously denied claim, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims de novo. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. Barnett, 83 F.3d at 1383. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). The Veteran originally brought a claim for service connection for glaucoma of the left eye as secondary to diabetes mellitus in August 2001. The claim was deferred in a January 2002 rating decision and denied in a March 2002 rating decision because the Veteran did not have a current diagnosis. The Veteran did not appeal and this decision became final. 38 C.F.R. § 20.1103. In the present case, additional service personnel records were associated with the claims file in 2010 after the RO first decided the claims in March 2002. However, the additional service personnel records are not relevant to the claims for service connection and have no bearing on the issues on appeal but address personnel and other administrative matters in service. Accordingly the provisions of 38 C.F.R. § 3.156(c) do not apply and the threshold question of whether new and material evidence has been submitted must bet terermined. At the time of the March 2002 denial for glaucoma of the left eye, the evidence of record consisted of service treatment records, outpatient treatment records from VA Gainesville form 1999 until 2001 and a February 2002 VA examination. Service connection was denied on the grounds that there was no evidence of a current diagnosis. Since the March 2002 denial, the Veteran has submitted additional private and VA treatment records and lay statements and additional VA examinations were obtained. Significantly, during the 2010 and July 2014 VA examination the Veteran was diagnosed with glaucoma of the left eye. As noted above, new and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In the present case, the Veteran has presented evidence that speaks directly to an element which was not of record, mainly a current diagnosis. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006)(finding that "the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied"). Accordingly, presumed credible, new and material evidence has been received and the claim is reopened. Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease that was incurred or aggravated during active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When a disability is initially diagnosed after separation from service and not within any applicable presumptive period, service connection may be granted if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Among the chronic disorders listed under 38 C.F.R. § 3.309 (a) are organic diseases of the nervous system. VA has recognized glaucoma to fall within that classification. See M21-1 Adjudication Procedures Manual (VBA Manual), Part III, Subpart iv, Ch. 4, Sect. G (recognizing glaucoma as an organic disease of the nervous system). In the absence of a superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, hyperopia, presbyopia, and astigmatism, even if visual acuity decreased in service, as those are not a diseases or injuries within the meaning of applicable legislation relating to service connection. 38 C.F.R. § 3.303(c). Thus, VA regulations specifically prohibit service connection for refractive errors of the eyes unless the defect was subjected to a superimposed disease or injury that created additional disability. VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45,711 (1990). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish secondary service connection, the law states that there must be: (1) evidence of a current disability that is not already service-connected; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the veteran. 38 U.S.C. § 5107; 28 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Service Connection for Glaucoma of the Left Eye The Veteran has indicated his belief that his current glaucoma of the left eye was caused or aggravated by his service-connected diabetes mellitus and/or his service-connected right eye disability. The medical evidence of record shows that the Veteran currently has open-angle glaucoma in his left eye. The Veteran was diagnosed with this condition in 2008 and this diagnosis was confirmed by a VA examination in January 2010. The record also shows that the Veteran is service-connected for diabetes mellitus and glaucoma in his right eye. Accordingly, the Veteran meets the first and second elements of secondary service connection. Unfortunately, the Veteran is not entitled to service connection on a secondary basis because there is no evidence that his glaucoma of the left eye is caused or aggravated by either service-connected disability. In January 2010, the VA examiner opined that the Veteran's glaucoma of the left eye is not caused by nor related to diabetes mellitus. Following a re-examination in July 2014 and in a subsequent March 2017 addendum opinion, the same VA examiner expanded on this and added that the Veteran's glaucoma of the left eye was not caused by nor aggravated by diabetes. He explained that while certain mechanisms of glaucoma (ie., secondary angle closure glaucoma related to neovascularization) can be caused by diabetes, no closed angle mechanism for glaucoma was noted in the Veteran's examination or in his medical records. Furthermore, the VA examiner determined that the Veteran's glaucoma of the left eye is less likely attributable to his service-connected right eye disability. In his March 2017 addendum opinion, he opined that this condition is less likely caused by, aggravated by or related to service; and in his explanation, he refers specifically to the Veteran's right eye disability. The VA examiner reviewed the Veteran's service medical records and noted the following points: the Veteran was diagnosed with angle recession glaucoma of the right eye in service in October 1981; the Veteran noted in his medical records that he experienced trauma to his right eye as a child; a December 1981 note states that the Veteran's right eye glaucoma was caused by trauma; and there was no evidence of any diagnosis of glaucoma of the left eye in service. In accordance with the Board's remand directives, the VA examiner also considered an article from the Glaucoma Research Foundation submitted by the Veteran's representative entitled "If I have glaucoma in one eye will it spread to the other eye?" The VA examiner cited the article for the proposition that secondary glaucoma caused by injury to the eye usually affects only one eye, and he explained that this includes the angle recession glaucoma of the right eye for which the Veteran was diagnosed in service. Based on the foregoing, the VA examiner found that the Veteran's glaucoma of the left eye was less likely as not caused or aggravated by the Veteran's service-connected right eye disability. In assigning probative weight to a medical opinion, the Board must consider whether it is: (1) based on sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). It may also consider whether the examiner had access to the claims file, reviewed prior clinical records and pertinent evidence, and provided a thorough, detailed and definitive opinion supported by a detailed rationale. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The July 2014 and March 2017 opinions adequately address the Veteran's claim for service connection for glaucoma of the left eye. They were predicated on a review of the record and the medical records contained therein, they include references to the Veteran's medical history, and they contain an adequate medical opinion along with reasons and bases for the opinion rendered. Accordingly, they are entitled to great probative weight. To the extent that the Veteran has asserted his personal belief that there exists a medical relationship between his glaucoma of the left eye and his service-connected disabilities, this provides no basis for allowing the claim. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issues in this case fall outside the realm of common knowledge for a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran has not been shown to have the requisite medical expertise to render a competent medical opinion regarding a link between his glaucoma of the left eye and his service-connected disabilities. The question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. Consequently, the Veteran's statements are not probative. Based on the evidence of record, the Board finds that secondary service connection for glaucoma of the left eye is not warranted. The weight of the competent evidence demonstrates that this disability was neither caused by nor aggravated by the Veteran's service-connected diabetes mellitus nor his service-connected right eye disability. When service connection on a secondary basis cannot be found, service connection may still be awarded on a direct basis with sufficient evidence of a medical nexus to service. However, in this case, there is no in-service event or nexus to service. A review of the Veteran's service medical records reveals no complaints or findings of glaucoma of the left eye during service. In fact, the Veteran was not diagnosed with this condition until 2008, 25 years after service. Nor was there evidence of continuity of symptoms. In fact, the July 1991 VA examination clearly found 20/20 vision of the left eye and indicated the left pupil was normal and reacted to light and accommodation. The more detailed ophthalmology consultation from that date reflects the Veteran reported that his vision in the left eye was good and he was told that there was no evidence of glaucoma in the left eye. The examiner noted intraocular pressure of 19 in the right eye and 16 in the left and concluded with the impression of "glaucoma left eye tension partially controlled." There is a handwritten question mark by the "left" designation on that report. Reading the totality of the 1991 examination, it is clear that the examiner meant to diagnose glaucoma of the right eye, not the left eye the objective findings and reported history concerning the left eye were normal. An April 1999 VA examination also noted 20/20 uncorrected vision of the left eye and pressure of 16 in the left. No diagnosis pertaining to the left eye was made. The February 2002 examination also concluded there was no evidence of glaucoma in the left eye. In addition, the March 2017 VA opinion determined that the Veteran's left eye glaucoma was less likely than not related to service, noting that this condition was not diagnosed in service, and explaining that although the Veteran suffered trauma to his right eye in service, this would not result in glaucoma of the left eye. As discussed above, the Board finds that the March 2017 opinion adequately addresses the Veteran's claim and assigned it significant probative weight. Accordingly, the Board finds that the preponderance of the evidence is against the claim. Entitlement to service connection on a secondary and direct basis for glaucoma of the left eye is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49 (1990). Service Connection for Cataracts The evidence of record indicates that the Veteran is currently diagnosed with cataracts. In his January 2010 VA examination, the Veteran was diagnosed with mild cataracts in both eyes; and in July 2014, his VA examination confirmed a cataracts diagnosis. However, there is no evidence of a diagnosis or treatment for cataracts during service or at separation, and medical records since service indicate the Veteran was not diagnosed with early cataracts until roughly 2004. Following the Veteran's VA examination in July 2014 and a review of the claims file, the VA examiner opined that the Veteran's cataracts are less likely as not caused by or aggravated by diabetes mellitus because cataracts are an aging process of the lens and the Veteran's cataracts are consistent with aging and age-appropriate. Furthermore, there is no diagnosis of cataracts in service nor is there any objective evidence of aggravation found in the Veteran's medical records. In his March 2017 opinion, the VA examiner reiterated this rationale, but added that the Veteran's cataracts are also less likely as not caused by or aggravated by service. As discussed above, the VA examiner's reference to service refers also to the Veteran's right eye disability diagnosed in service. The Board notes that in January 2010, the VA examiner opined that he could not resolve without resorting to mere speculation whether cataracts were caused by or related to the Veteran's diabetes mellitus because cataracts are part of the aging process of the lens that can progress at an increased rate with various system disorders, including diabetes mellitus, without a means to distinguish between the causes. Where medical opinions conflict, the Board may favor one medical opinion over another if the Board offers an adequate statement of reasons or bases. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). As discussed above, in assigning probative weight to a medical opinion, the Board may consider whether the examiner provided a thorough, detailed and definitive opinion supported by a detailed rationale. Prejean, 13 Vet. App. 448-9. A medical opinion is inadequate where there is an incomplete analysis to support its conclusion. Stefl v. Nicholson, 21 Vet. App. 120 (1997). To be adequate, it must provide the degree of certainty required for medical nexus evidence; and if the examiner must resort to speculative language, he must provide an explanation why an opinion cannot be provided. Bloom v. West, 12 Vet. App. 185, 187 (1999); Jones v . Shinseki, 23 Vet. App. 382 (2010). The Board favors the July 2014 and March 2017 opinions because the VA examiner provides a detailed explanation for his findings that makes reference to the Veteran's service medical records and refers specifically to the nature of the Veteran's cataracts. By contrast, the January 2010 opinion provides a speculative conclusion that discusses cataracts generally with no reference to the Veteran's medical history or his present condition. As such, the later opinions are more probative and the Board affords them greater weight. Accordingly, a review of the competent evidence demonstrates that the Veteran's cataracts are less likely as not caused by, aggravated by or related to his service or service-connected disabilities. The Board finds that the preponderance of the evidence is against the claim. Entitlement to service connection on a secondary and direct basis for cataracts is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received, the claim for service connection for glaucoma of the left eye is reopened. Service connection for glaucoma of the left eye is denied. Service connection for cataracts is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs