Citation Nr: 1805555	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  14-26 575	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1. Entitlement to service connection for a left eye injury.

2. Entitlement to service connection for glaucoma with reduced vision, to include as secondary to a left eye injury.


REPRESENTATION

Veteran represented by:	Tennessee Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

R. Kettler, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1965 to June 1967.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In October 2017, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file.  

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.

The issue of service connection for glaucoma is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's current left eye condition manifested during his period of active service.





CONCLUSION OF LAW

The criteria for service connection for a left eye injury have been met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

As the issue decided herein is being granted in full, any deficiency as to VA's duties to notify and assist would be harmless error and will not be discussed.

II. Legal Analysis

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).





III. Merits of the Claim

The Veteran contends that his left eye injury is the result of an injury he sustained while serving in Vietnam.  See October 2017 Hearing Testimony.  After a careful review of the record, the Board finds that the evidence supports the Veteran's claim.  

The Veteran's service treatment records show that he sought treatment in April 1967 for complaints of his eyes hurting when exposed to light.  He was diagnosed as having extreme photophobia.  Thereafter, the Veteran was prescribed aviation spectacles with tint.

A Rocky Top Medical Center private physician submitted a medical opinion in October 2011.  The physician noted the Veteran suffered left eye trauma due to a 105 Howitzer.  The physician described the impact the trauma had on the Veteran's vision, including sensitivity to light, pain, and blurred vision.  The physician indicated that the Veteran's symptoms have progressively worsened since active service.  As such, the physician opined that the Veteran's current eye condition is most likely caused by the Veteran's in-service incident.

In October 2011, a private physician from Whaley Family Eye Care submitted a positive nexus opinion.  After reviewing his history, the physician indicated that the Veteran's left eye was injured in an accident while in the military.  The physician then opined that the present left eye injury is likely the result of trauma to the eye.

Again, a physician from Baptist Eye Surgeons submitted a medical opinion in October 2011.  The physician concluded that the Veteran's current eye condition could have resulted from an incident with his left eye in 1967.

The Veteran was afforded a VA eye examination in October 2012.  The VA examiner opined that the Veteran's current diagnosis, uveitic glaucoma, was less likely than not related to service.  The examiner indicated that there was no injury or incurrence while in service.  

The Board gives little weight to the opinion of the VA examiner.  He opined that there was no objective evidence of a left eye injury, despite the vast majority of evidence to the contrary, including the STRs.  See, e.g., April 1967 Ophthalmologic Consultation.  In contrast, the Board assigns more probative weight to the opinions of the three private doctors since they identified an in-service injury and provided positive nexus opinions.

Based on the above, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a left eye injury is warranted.


ORDER

Service connection for a left eye injury is granted.


REMAND

Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review.

The Veteran asserts that his glaucoma is due to his now service-connected left eye injury.  A VA examination was provided in October 2012.  While an opinion was provided regarding direct service connection, an opinion regarding secondary service connection was not secured.  On remand, an additional VA examination and etiological opinion must be obtained.

Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination to determine the nature, onset and etiology of his glaucoma.  The record must be made available for review of the Veteran's pertinent medical history.  All appropriate tests and studies should be performed, and all clinical findings must be reported in detail.  The VA examiner is requested to address the following:

Confirm a diagnosis of glaucoma.

Is it as least as likely as not that the glaucoma was (i) caused or (ii) aggravated (permanently worsened) by the Veteran's in-service left eye injury?

The examiner should note that this question requires two opinions: one for proximate causation and a second for aggravation.  The term "aggravation" means a chronic worsening of a disability beyond its natural progression.  If aggravation is found, then, to the extent possible, the examiner should attempt to establish a baseline level of severity for the glaucoma.

The examiner must consider and address the Veteran's lay statements and the private physician's letters.  A complete rationale must be provided for all opinions offered.

2. Thereafter, readjudicate the issue on appeal.  If the benefit sought on appeal remains denied, provide the Veteran with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond.  Then return the case to the Board for further appellate review, if otherwise in order.

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. §§ 5109B, 7112 (2012).



____________________________________________
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs