Citation Nr: 1802525 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-27 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection, to include on a secondary basis, for an eye disability. 2. Entitlement to service connection, to include on a secondary basis, for hypertension (HTN) REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1975 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In October 2016, the Veteran appeared with his representative for a videoconference hearing before the undersigned. A transcript of that proceeding has been associated with the record. These matters were remanded by the Board in March 2017 for additional development. These matters have been returned to the Board for appellate consideration. An August 2017 rating decision by the RO granted entitlement to service connection for obstructive sleep apnea (OSA) (previously rated as allergy manifested by chronic rhinitis, conjunctivitis, and asthmatic bronchitis) pursuant to 38 C.F.R. § 4.96 (special provisions regarding evaluation of respiratory conditions). The RO's grant of service connection for this issue constitutes a full award of benefits sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Thus, this matter is no longer in appellate status. Id. (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating and/or the effective date assigned). The issue of entitlement to service connection for HTN is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The competent and probative medical evidence of record favors a finding that photophobia is a symptom of the Veteran's service-connected allergy disability and not, in and of itself, an independent eye disability. 2. The Veteran's ocular hypertension is not caused by or otherwise etiologically related to military service; nor is it is it proximately due or aggravated by his service-connected allergy symptoms. CONCLUSION OF LAW The criteria for service connection, to include on a secondary basis, for an eye disability have not been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA's duty to notify was satisfied by a letters dated in November 2009 and April 2017. See 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017). The duty to assist the Veteran has also been satisfied in this case. In its March 2017 remand, the Board directed the AOJ to, in pertinent part, obtain any outstanding service treatment records for any periods of active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA). The Board notes that complete reserve records are not associated with the record. However, a review of the record reflects the AOJ took reasonable developmental actions to comply with the remand directives. For instances, developmental letters dated in March 2017 were sent to the appropriate sources. A letter dated in April 2017 reflects a negative response. In April 2017, VA notified the Veteran of the developmental actions taken, the negative response, and requested he submit any records in his possession. It further notified him that if no response was received within 10 days, VA would proceed with adjudication of his claims. In response, the Veteran contacted the RO and indicated he is in possession of his records-inclusive of the reserve records sought. As of this date, the record does not reflect the Veteran submitted the requested documents. To that extent, the Board notes that VA's duty to assist in developing the facts and evidence pertinent to the Veteran's claim is not a one-way street, and it is his responsibility to work with VA with regard to development. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, after reviewing all of the developmental actions taken by the AOJ, the Board finds there was substantial compliance with the March 2017 remand. Stegall v. West, 11 Vet. App. 268 (1998). In light of the foregoing, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. II. Service connection Legal Principles Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Because "Congress specifically limit[ed] entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," service connection cannot be granted "[i]n the absence of proof of a present disability." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement is satisfied when a veteran "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to . . . filing a claim for benefits based on that disability," Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). "In the absence of proof of a present disability there can be no valid claim." Brammer, supra. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Alternatively, service connection may be proven on a secondary basis. In this instance, the evidence must demonstrate an etiological relationship between a service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other. 38 C.F.R. § 3.310(a); Wallin v. West, 11 Vet. App. 509 (1998). While the applicable laws and regulations do not provide a definition of "proximate cause," generally it is defined as "[t]hat which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred." BLACK'S LAW DICTIONARY 1103 (5th ed. 1979); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002), rev'd on other grounds by Morgan v. Principi, 327 F.3d 1357 (Fed. Cir. 2003). Otherwise, evidence must demonstrate that a non-service-connected disability is aggravated by a service-connected disability. 38 C.F.R. § 3.310(a). There is a large amount of evidence in this case, consisting of both lay and medical evidence. The Board notes that it has reviewed the evidence in its entirety, but will not be discussing all of it with specificity. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (the Board is presumed to have considered all evidence presented in the record; it is not required to specifically discuss every piece of evidence). Factual Background The relevant evidence of record consists of the Veteran's service treatment records (STRs), post-service VA and private treatment records, and lay statements by the Veteran and other sources. STRs reflect the Veteran was treated for complaints of ocular symptoms such as itchy, watery eyes, blurred vision, and photophobia on numerous occasions. In particular, records dated in June 1978 reflect a diagnosis of conjunctivitis with photophobia. Similarly, records dated in August 1978 reflect ocular symptoms due to Veteran's chronic allergies. Records dated in December 1983 reflect a provisional diagnosis of chronic photophobia. STRs are otherwise negative for a diagnosis of an eye disability. Collectively, VA and private treatment records dated between January 1997 and August 2017 reflect intermittent complaints of and/or treatment for ocular symptoms. In particular, records dated in July 2003 reflect the Veteran presented with complaints of vision problems "within the past year." Records dated in September 2008 reflect an elevated intraocular pressure (IOP). At that time, the Veteran was noted as a glaucoma suspect, i.e., having at least one clinical feature of the disease; however, he was not diagnosed with glaucoma. The optometrist educated the Veteran on the risk of developing glaucoma, including due to a family history. The Veteran was started on medication, i.e., Travatan, to reduce the IOP. Records dated in December 2013 reflect the Veteran presented with complaints of vision problems, including photophobia. At that time, the Veteran was noted as having an elevated IOP and was diagnosed with ocular hypertension. The Veteran was found to be negative for glaucoma. As indicated, the Veteran testified at a hearing in October 2016. At that time, the Veteran indicated, in pertinent part, an in-service diagnosis and treatment for photophobia due to allergies. In particular, the Veteran reported symptoms such as watery eyes and sensitivity to light. The Veteran indicated his ocular symptoms are produced by "the elements, the temperature, [etc.]" He further reported that he has been diagnosed with glaucoma by a VA medical professional for which he currently receives treatment. Pursuant to the Board's March 2017 remand, the Veteran was provided with a VA examination. Report of the August 2017 VA eye examination reflects, in pertinent part, diagnoses of ocular hypertension and allergic conjunctivitis, bilaterally. It also reflects the Veteran's statements regarding a history of seasonal allergies productive of itchy, watery eyes. The Veteran reported the symptoms are worse closer to winter. Veteran also reported a history of ocular hypertension with onset in 2008, which was initially treated with medication, i.e., Travatan. The Veteran's medication was subsequently changed resulting in improved IOP. Physical examination revealed no decrease in visual acuity or other visual impairments. Based on a review of the evidence, the examiner opined that ocular hypertension is less likely than not incurred in, caused by, or otherwise etiologically related to service, including any claimed chemical exposure. Additionally, the examiner opined that ocular hypertension is less likely than not proximately due to, aggravated by, or otherwise attributable to the Veteran's service-connected allergy disability. In doing so, the examiner explained that ocular hypertension is a condition where the IOP in individuals' eyes is higher than normal. While such condition places an individual at a higher risk of developing glaucoma, it is not a diagnosis of glaucoma. Common causes of ocular hypertension include excessive fluid production, inadequate fluid drainage, certain medications, i.e., corticosteroids, and trauma to the eyes. Race, age, and family history are also significant factors. Otherwise, the examiner indicated there is no link between an allergy disability and the development of glaucoma. After review of the pertinent medical history, the examiner noted the Veteran has not been prescribed any medication containing corticosteroids in treatment for his allergy disability. In addressing the prior diagnoses of photophobia, the examiner indicated that photophobia is a symptom of the Veteran's allergy disability, rather than an independent diagnosis of an eye disability related to service. In doing so, the examiner noted that photophobia, i.e., sensitivity to light, is a common complaint attributed to allergic conjunctivitis. Specifically, the examiner explained that the sensitivity to light is due to the inflammation of the lining of the eye, which also causes redness, itching, and watery eyes-symptoms the Veteran reports experiencing. The examiner indicated that this is consistent with the Veteran's STRs, which reflect a diagnosis of conjunctivitis and symptoms of itchy, watery, red, irritated eyes, along with mucous discharge. Moreover, the examiner noted these symptoms have overwhelming been complained of in conjunction with each other. For the reasons stated above, the examiner concluded that photophobia is a symptom of the Veteran's service-connected allergy disability, and not an independent eye disorder. Analysis As a preliminary matter, the Board acknowledges the Veteran's contentions that he experiences intermittent sensitivity to light. The Veteran is clearly competent to make these statements as they relate to observable symptomatology. However, based on a review of the evidence, the Board finds that service connection is not warranted for the Veteran's claimed photophobia because the medical evidence reflects that photophobia does not, in and of itself, constitute a "disability" for which service connection may be granted. See Brammer, 3 Vet. App. at 225 (1992). In making this finding, the Board finds particularly persuasive the August 2017 VA examination of record, which reflects, in pertinent part, that photophobia is a symptom of the Veteran's allergy disability, rather than an independent diagnosis of an eye disability related to service. In doing so, he explained that photophobia, i.e., sensitivity to light, is a common complaint attributed to allergic conjunctivitis. Specifically, the examiner explained that the sensitivity to light is due to the inflammation of the lining of the eye, which also causes redness, itching, and watery eyes. The examiner indicated that this is consistent with the Veteran's STRs. As indicated, STRs reflect ocular symptoms such as itchy, watery eyes, blurred vision, and photophobia on numerous occasions. Moreover, records dated in June 1978 reflect a diagnosis of conjunctivitis with photophobia. Additionally, the Veteran's own statements are consistent with this finding. For instance, at his October 2016 hearing, the Veteran indicated his ocular symptoms are produced by "the elements, the temperature," i.e., surroundings. To the extent the Veteran is identifying pathology other than his service-connected allergy disability for his photophobia, or alternatively, self-diagnosing photophobia as a disability in and of itself, the Board finds his statements are not competent lay evidence. Nevertheless, the probative medical evidence outweighs the Veteran's statements. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for photophobia. As mentioned, Congress has specifically limited service connection to instances where there is current disability that has resulted from disease or injury in service. See 38 U.S.C. § 1131. In the absence of a current disability, the analysis ends, and the claim for service connection for photophobia cannot be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. Next, the Board turns to whether entitlement to service connection, to include on a secondary basis, is warranted for ocular hypertension. Based on a review of the record, the Board finds that service connection is not warranted for the Veteran's claimed ocular hypertension on a direct basis because the evidence fails to show a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. In making this finding, the Board notes that STRs are negative for any complaints and/or treatment for or diagnosis of ocular hypertension. The Board further notes the Veteran first exhibited elevated IOP in or around 2008. Treatment records also reflect a family history of glaucoma. The August 2017 VA examiner opined that ocular hypertension is less likely than not incurred in, caused by, or otherwise etiologically related to service, including any claimed chemical exposure reported by the Veteran. Rather, he noted that the common causes of ocular hypertension include excessive fluid production, inadequate fluid drainage, certain medications, i.e., corticosteroids, and trauma to the eyes. STRs are negative for any complaints and/or treatment of such pathology in-service. The examiner further intimated the Veteran's race, age, and family history as a source of his ocular hypertension. The Board has considered the Veteran's statements, including that his ocular hypertension is related to chemical exposure in service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, questions of medical causation fall outside the realm of common knowledge of a lay person. See Jandreau, supra (lay persons not competent to diagnose cancer). In this case, the cause of the Veteran's ocular hypertension is a matter suited to the realm of medical expertise. As such, to the extent the Veteran is addressing questions of medical causation, the Board finds his statements are not competent lay evidence. Notwithstanding, the probative medical evidence outweighs the lay statements. Additionally, based on a review of the evidence, the Board finds that service connection is not warranted for the Veteran's claimed ocular hypertension on a secondary basis because the evidence of record does not demonstrate that the Veteran's ocular hypertension is proximately due to or aggravated by his service-connected disabilities. In making this finding, the Board accords significant probative weight to the August 2017 VA eye examination. The examination reflects the examiner reviewed the Veteran's pertinent medical history, and rendered findings consistent with the remainder of the evidence. In particular, the August 2017 examination reflects a diagnosis of ocular hypertension. The examiner opined that ocular hypertension is less likely than not proximately due to, aggravated by, or otherwise attributable to the Veteran's service-connected allergy disability. As indicated above, the examiner explained the common causes of ocular hypertension, which include certain medications, i.e., corticosteroids. After a review of the Veteran's medical history-inclusive of the Veteran's prescribed medication-the examiner noted the Veteran has not been prescribed any medication containing corticosteroids in treatment for his allergy disability. Otherwise, the examiner indicated there is no link between an allergy disability and the development of glaucoma-inclusive of ocular hypertension which categorizes an individual as a glaucoma suspect. The Board has considered the Veteran's statements that his ocular hypertension is proximately due to or aggravated by allergy disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, questions of medical causation and/or aggravation fall outside the realm of common knowledge of a lay person. See Jandreau, supra (lay persons not competent to diagnose cancer). In this case, the cause or aggravation of the Veteran's ocular hypertension is a matter suited to the realm of medical expertise. As such, to the extent the Veteran is addressing questions of medical causation and/or aggravation of the ocular hypertension, the Board finds his statements are not competent lay evidence. Notwithstanding, the probative medical evidence outweighs the lay statements. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection, to include on a secondary basis, for ocular hypertension. In reaching these conclusions, 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 for service connection, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection, to include on a secondary basis, for an eye disability is denied. REMAND A review of the record reflects that the remaining claim must be remanded for additional development prior to appellate consideration. As a preliminary matter, the Board reiterates that VA's duty to assist in developing the facts and evidence pertinent to the Veteran's claim is not a one-way street, and it is his responsibility to work with VA with regard to development. Wood, 1 Vet. App. at 193. For the reasons stated above, VA has satisfied its duty to assist the Veteran with respect to any outstanding reserve records. Notwithstanding, given the issue of entitlement to service connection for HTN must be remanded for further development, the Board finds affording the Veteran an additional opportunity to submit any records deemed relevant to his claim will promote judicial economy and fairness to the Veteran. In its March 2017 remand, the Board directed the examiner, in pertinent part, to provide an opinion as to whether the Veteran's HTN was incurred in or aggravated by any period of ACDUTRA, or whether the Veteran's HTN was proximately due to or aggravated by his service-connected allergy disability. Report of the August 2017 addendum medical opinion reflects, in pertinent part, the examiner's opinion that the Veteran's HTN was not incurred in or caused by the claimed injury, event, or illness. In doing so, the examiner noted the lack of any treatment for 15 years-rather than absence of records-to determine there is no direct link between military service and the Veteran's HTN. In addressing a secondary theory of causation due to the Veteran's service-connected allergy disability, the examiner noted that HTN is not a common side effect of the medications the Veteran has been medically prescribed for his sinusitis. The examiner further noted that medical literature does not support an association between allergy disabilities and the subsequent development of HTN. Unfortunately, the examiner's opinion (even considered as a whole) fails to sufficiently address the Board's request. First, the examiner did not provide any opinion regarding whether the Veteran's HTN was aggravated, i.e., worsened beyond natural progression, by any period of ACDUTRA. This is evident from the examiner's statements regarding lack of treatment for 15 years. Second, the examiner did not provide any opinion regarding whether the Veteran's HTN was aggravated, i.e., worsened beyond natural progression, by his service-connected allergy disability. Without the requested opinions, the Board lacks the medical expertise necessary to adjudicate the case. As such, a remand is necessary to obtain addendum opinions. Additionally, in a statement dated in November 2017, the Veteran, through his representative, sought to supplement his claim with an alternative theory of entitlement. Specifically, the Veteran raised entitlement to service connection for HTN, secondary to service-connected OSA. (As indicated, an August 2017 rating decision by the RO granted entitlement to service connection for OSA (previously rated as allergy manifested by chronic rhinitis, conjunctivitis, and asthmatic bronchitis)). In support, the Veteran provided several excerpts from various sources establishing a general association between OSA and HTN. Developmental actions on this issue have not yet been taken. As such, a remand is also necessary to address this theory of entitlement. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to provide any medical records deemed relevant to his claim, including reserve records the Veteran identified as being in his possession. Provide the Veteran with an opportunity to respond. The Veteran should be notified that failure to timely respond will result in the claim being adjudicated based on the evidence of record. 2. Thereafter, arrange for the examiner who prepared the August 2017 VA medical opinion, if available, to prepare an addendum opinion as to the nature and etiology of the Veteran's diagnosed HTN, and if deemed necessary, conduct new examination of the Veteran. The electronic claims file must be made accessible to the examiner for review, and such review should be noted in the examination report. Following a review of the claims file and medical history, the VA examiner must offer an opinion as to the following: a. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's HTN is caused by, or otherwise etiologically related to active military service? b. Whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's HTN was aggravated (i.e., permanently worsened beyond the normal progression of the disease) during a period of ACDUTRA? (Aggravation is defined as a worsening of the underlying condition as compared to an increase in symptoms.) In rendering any opinion, the examiner should consider that medical records reflect a diagnosis of HTN in or around 1999 and the Veteran has at least one period of ACDUTRA in or around 2000. c. Whether it is as likely as not (i.e., a 50 percent or better probability) that the Veteran's HTN is proximately due to, or aggravated by the Veteran's service-connected OSA. d. Whether it is as likely as not (i.e., a 50 percent or better probability) that the Veteran's OSA is aggravated by the Veteran's allergy symptoms. (Note: the Veteran's service-connected allergy disability manifested by chronic rhinitis, conjunctivitis, and asthmatic bronchitis has been combined with the Veteran's service-connected OSA rating). The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, issue a supplemental statement of the case and provide the Veteran and his representative with an opportunity to respond. Then return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). ______________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs