Citation Nr: 1802139	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  14-09 642	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial compensable rating for service-connected osteoarthritis, pubic symphysis (claimed as pelvic trauma, osteophyte pubic joint and groin pain).  

2.  Entitlement to service connection for an eye disorder, to include primary open angle glaucoma.

3.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. Abdelbary, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1979 to May 1987. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In the Veteran's October 2012 Notice of Disagreement, as well as in other documents of record, the Veteran contends that his service-connected osteoarthritis, pubic symphysis, has rendered him unemployable.  Entitlement to TDIU is considered a part of the Veteran's claim for entitlement to an increased rating for osteoarthritis, pubic symphysis, based on the Court's holding in Rice v. Shinseki.  22 Vet. App. 453 (a TDIU request in which the disability is already service connected is not a separate claim for benefits but rather is part of a claim for increased compensation); 38 C.F.R. § 3.400 (2017).  Given such, the Board has jurisdiction over this claim, and will be further explained below.

The Board notes that based on the evidence of record, the Board has re-characterized the Veteran's claim of entitlement to service connection for bilateral vision loss, more broadly as a claim of entitlement to service connection for an eye disorder, to include open angle glaucoma, as reflected on the title page.  See 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).  

The issues of entitlement to an initial compensable rating for osteoarthritis, pubic symphysis, and to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDING OF FACT

The evidence is in relative equipoise as to whether the Veteran's eye disorder, to include open angle glaucoma, was incurred in active service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for an eye disorder, to include open angle glaucoma, have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

A.  Legal Principles and Regulations

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability.  Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013).  Service connection may be granted for any disease initially diagnosed after service 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).

A veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C. § 1111 (West 2012); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service.  Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014).


B.  Analysis

The Veteran contends his current bilateral vision loss had it onset during service.  The Board notes that the Veteran's service treatment records reflect that upon entrance to service the Veteran's visual acuity was normal.  Thus, the Veteran is presumed sound upon entrance to service.  Upon separation from service, the Veteran's separation examination notes normal corrected vision.  The impression was that the Veteran had astigmatism.  

In a May 2011 VA examination at Bay Pines VA Medical Center, the VA examiner diagnosed the Veteran with primary open angle glaucoma in both eyes, with decreased vision.  In a November 2011 addendum, the VA examiner stated that because the Veteran's claims file did not contain any records of intraocular pressure measurements, visual field analysis or optic nerve head examinations during service, and these types of records are key elements in determining whether a patient had glaucoma at the time of service, the examiner stated he could not render an opinion as to whether the Veteran's open angle glaucoma had its onset during service.

In a November 2011 buddy statement, the Veteran's spouse noted that the Veteran's vision became progressively worse throughout the years. 

In a November 2011 buddy statement, the Veteran's family friend, G.W., stated that he observed a decline in the Veteran's vision.  G.W., stated that he provided the Veteran's primary transportation to and from work.

In a November 2011 buddy statement, the Veteran's co-worker, E.S., stated that she noticed the Veteran having trouble with his vision during the past few years.  

In a May 2012 medical opinion, Dr. A.M. opined that the Veteran's bilateral vision loss is at least as likely as not a result of his open angle glaucoma not being detected and treated during his service.  Dr. A.M. explained that glaucoma is usually a slowly progressive disease that initially causes peripheral vision loss, and therefore is asymptomatic until later stages of the disease.  Therefore, Dr. A.M. noted that the Veteran likely had early (asymptomatic) stages of glaucoma during his military service, and was not diagnosed with glaucoma until he became symptomatic much later in the course of the disease.  

Initially, the Board notes that the Veteran's in-service diagnosis of astigmatism is a congenital defect.  In this regard, a congenital or developmental defect is not considered a disease or injury for VA purposes.  38 C.F.R. §§ 3.303 (c), 4.9.  A congenital defect, as distinguished from a disease, generally may not be service-connected as a matter of law.

However, the Board notes that the Veteran's medical records reflect that he has been diagnosed with open angle glaucoma, thus establishing a current disability for purposes of service connection.  Additionally, Dr. A.M.'s May 2012 opinion supports a finding that the Veteran's bilateral vision loss is at least as likely as not related to his open angle glaucoma, and the Veteran's open angle glaucoma likely had its onset during service.  Dr. A.M.'s opinion is well-reasoned and based upon a review of the Veteran's medical record.  Thus, establishing that the Veteran's current eye disorder had its onset or is otherwise related to the Veteran's service.

Thus, Board finds that the evidence of record is in relative equipoise as to whether the Veteran's open angle glaucoma was caused by or incurred in active service.

The Board acknowledges, when considering all the evidence of record, some of it is favorable and some of it is unfavorable and thus in equipoise.  A claim will be denied only if the preponderance of the evidence is against the claim.  If the evidence for and against a claim is in equipoise, the claim will be granted.  See 38 U.S.C. § 5107.  Resolving reasonable doubt in the Veteran's favor, entitlement to service connection for an eye disorder, to include open angle glaucoma, is warranted.


ORDER

Entitlement to service connection for an eye disorder, to include primary open angle glaucoma, is granted.



REMAND

In relation to the Veteran's claim for an initial compensable rating for osteoarthritis, pubic symphysis, the Veteran was most recently afforded a VA examination in connection with this claim in March 2016.  Recently, the U.S. Court of Appeals for Veterans Claims (Court) found that, pursuant to 38 C.F.R. § 4.59 , joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing situations, in order for an examination to be considered adequate.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  Because the VA medical examinations on record do not contain these findings, according to the Court, they are inadequate for compensation purposes.  Under these circumstances, a remand for an additional examination is necessary.

Additionally, as to the TDIU claim, the Board finds that the claim of entitlement to TDIU is inextricably intertwined with the increased rating claim on appeal, and the Board will defer adjudication of the TDIU claim until the development directed on the other claim has been completed.  The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991).


Accordingly, the case is REMANDED for the following action:

1.  Any outstanding VA and non-VA medical records should be obtained and associated with the claims file.

2.  Schedule the Veteran for a VA medical examination to clarify the severity of his osteoarthritis, pubic symphysis. Access to the Veteran's electronic claims file should be made available to the examiner for review in connection with the examination.

The examination report should include the range of motion of the pelvis in degrees.  The examiner must, to the extent practicable, specifically measure both active and passive range of motion, in weight-bearing and nonweight-bearing, as required by 38 C.F.R. § 4.59.  If any such testing cannot be performed on the joint at issue, the examiner should specifically state so and provide an explanation in the report. 

Additionally, the examiner should comment on the extent of any functional impairment resulting from painful motion, weakness, fatigability, and incoordination.  If feasible, this determination should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination.

The examiner should also, to the extent possible, provide a retrospective opinion addressing prior range of motion of the pelvis, painful motion (and at what point it started), additional loss of motion after repetitions, and function loss due to pain -considering active and passive motion as well as weight-bearing and nonweight-bearing considerations-throughout the claims period.  If, the examiner is unable to provide a retrospective opinion, the examiner must provide a thorough rationale explaining why such opinion is not provided in this examination.

The examiner should also state whether the Veteran's service-connected osteoarthritis, pubic symphsis results in incapacitating episodes manifested by physician-prescribed bed rest.  If so, the examiner should report the dates and durations of these incapacitating episodes.

The examiner shall inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups. 

Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss.  The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the veteran, to what extent, if any, such flare-ups affect functional impairment.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

The examination report should also identify all neurological manifestations of the service-connected osteoarthritis, pubic symphysis, if any.

The examiner must provide a clear rationale for all opinions provided.  If any opinion cannot be provided without resort to speculation, the examiner must state this and explain why.




3.  When the development requested has been completed, the case should be readjudicated by the AOJ.  If any benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.


The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).







______________________________________________
YVETTE R. WHITE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs