Citation Nr: 18140391 Decision Date: 10/03/18 Archive Date: 10/02/18 DOCKET NO. 15-08 235 DATE: October 3, 2018 ORDER The petition to reopen entitlement to service connection for glaucoma is granted. Entitlement to service connection for glaucoma is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for malignant melanoma of the left forearm is remanded. Entitlement to service connection for malignant melanoma of the right leg is remanded. Entitlement to an increased rating for service-connected PTSD is remanded. FINDINGS OF FACT 1. In an unappealed March 1972 rating decision, the RO denied entitlement to service connection for glaucoma. 2. The evidence received since the March 1972 rating decision relates to an unestablished fact necessary to substantiate the claims of service connection for glaucoma. 3. The Veteran does not have a current diagnosis of glaucoma. CONCLUSIONS OF LAW 1. The March 1972 rating decision, which denied entitlement to service connection for glaucoma is final. 38 U.S.C. 7104 (2012); 38 C.F.R. 20.1103 (2017). 2. The criteria to reopen service connection for glaucoma have been met. 38 U.S.C. 5108 (2012); 38 C.F.R. 3.156(a), 3.303, 20.1105 (2017). 3. The criteria for service connection for glaucoma have not been met. 38 U.S.C. 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Army from February 1968 to February 1970, with service in the Republic of Vietnam from July 1968 to July 1969. The Veteran had subsequent service with the West Virginia Air National Guard until 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office in Huntington, West Virginia (RO), which granted service connection for PTSD, assigning a 30 percent disability rating, denied entitlement to service connection for sleep apnea, bilateral hearing loss, tinnitus, and malignant melanoma of the left forearm and right leg, and denied a petition to reopen a claim of service connection for glaucoma. In April 2018, the Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing. A copy of the hearing transcript has been associated with the record. 1. Reopening entitlement to service connection for glaucoma The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. 5108 (2012); 38 C.F.R. 3.156 (2017). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means 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) (2017). 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, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the veteran’s claim in light of all the evidence. Justus, 3 Vet. App. at 512. In a March 1972 rating decision, the RO denied service connection for glaucoma, finding that the evidence submitted did not provide a sufficient basis for granting service connection for glaucoma. The Veteran did not submit a notice of disagreement to the March 1972 rating decision, and the decision became final. See 38 U.S.C. 7105 (2012); 38 C.F.R. 20.1103 (2017). In rendering the above decision, the RO considered the service treatment records, a February 1972 VA examination and medical opinion. Therefore, the Board finds that new and material evidence must tend to establish a nexus between diagnosed glaucoma with active service. New evidence received since the March 1972 rating decision pertinent to the claim on appeal includes a November 2015 VA examination, VA treatment records, lay statements and hearing testimony. Within an April 2018 videoconference hearing, the Veteran testified that he had injured his eyes from shrapnel in service and that he has currently diagnosed glaucoma related to this incident. Because the Veteran has submitted evidence that tends to show a nexus between glaucoma and service, the Board finds that the low threshold for reopening service connection has been met. Shade, 24 Vet. App. at 11. For these reasons, the Board finds that new and material evidence sufficient to reopen service connection for glaucoma has been received, and the claim is reopened. 38 C.F.R. 3.156 (2017). 2. Entitlement to service connection for glaucoma Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, 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) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran claims that he has currently diagnosed glaucoma related to active duty service. Upon review of all the evidence, lay and medical, the Board finds that the Veteran does not have a current diagnosis of glaucoma for which service connection may be granted. Service treatment records show the Veteran sought treatment in service for injury to his left eye in April 1968 for a tiny foreign body. A February 1972 VA examination shows the Veteran had been diagnosed with glaucoma in November 1971 by a private ear, nose and throat physician. The Veteran complained of blurred vision, eye strain with headaches, and itching sensation at times. The Veteran reported injury to his eyes while in service, to include a piece of shrapnel in the left eye which was removed without any difficulty. He also reported a powder burn after a 50-caliber machine cartridge exploded near his face and damaged both of his eyes. The examiner found that the Veteran’s visual acuity was 20/20 in each eye without difficulty, even in a darker room. He had no refractive error by retinoscopy and his intraocular tension was taken and was within normal limits in both eyes. There was no evidence of any scars from foreign bodies or from powder burn. The VA examiner concluded that he had no explanation for his glaucoma, and that he could not believe that the injuries he has had caused him to have glaucoma in each eye. The Veteran was diagnosed with history of injury to eyes without any residuals, and glaucoma, bilateral, cause unknown. In a February 1972 private opinion, the Veteran’s optometrist stated that he did not know the cause of his glaucoma but suspected that it was post-traumatic. The Veteran had elevated intraocular pressure in the left eye in November 1971, and was taking medication which controlled the pressure in his eye. The private optometrist indicated that either of the Veteran’s in-service eye injuries could have caused the elevated pressure in his left eye. September 2015 VA treatment records show that the Veteran had mild ocular hypertension OS, with non-glaucomatous OU. A November 2015 VA examination shows that the Veteran does not have currently diagnosed glaucoma. The VA examiner gave a detailed review of the Veteran’s claims file and on interviewing the Veteran, denoted the Veteran’s reports of an in-service injury of shrapnel in his eye and a history of elevated intraocular pressure. On examination, the Veteran had 20/40 vision or better, bilaterally, without optic nerve damage. The VA examiner opined that for any person to have sustained an injury that caused glaucoma should have extensive optic nerve damage 47 years status-post the injuring event. The examiner also found that the Veteran had normal intraocular pressure readings. She stated that the Veteran was unmedicated for almost 10 years, and that if the glaucomatous process was actually present, then no optic nerve damage is present. Regarding the 1972 diagnosis of glaucoma by a private optometrist, the VA examiner stated that glaucoma does not go away on its own, and is a disease process that is progressive over time. Because the Veteran did not have any disease process currently, she opined that the Veteran did not have glaucoma. In an April 2018 videoconference hearing, the Veteran testified that his optic nerves would have damage from the high intraocular pressures, however, he had a diagnosis of glaucoma in February 1970 and indicated that he had previously been denied service-connection for glaucoma by the RO because the condition had pre-existed his military service as his entrance examination noted blurriness in his eyes. The Veteran, through his representative, testified that if he did have previously existing glaucoma at the time of service entrance, he could have been service connected based on aggravation. After reviewing all the lay and medical evidence of record, including the Veteran’s statements, the Board finds that the weight of the evidence does not establish currently diagnosed glaucoma for which service connection may be granted. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. § 1110 (2012); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board finds probative VA treatment records and a November 2015 VA examination of record which do not show a current diagnosis of glaucoma at any point during the pendency of the appeal. While a private treatment records show the Veteran was diagnosed with glaucoma in February 1971, prior to the filing of the claim on appeal, the November 2015 VA examiner opined that the Veteran did not have any disease process at the time and that glaucoma does not go away on its own, as it was a disease process that is progressive over time. The VA examiner concluded that that the Veteran did not have glaucoma. The only other evidence of record supporting the Veteran’s contentions are his personal statements and testimony. His statements do not establish the required diagnosis of a current disability or a nexus between any acquired pathology and his military service. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board, therefore, finds that there is no competent evidence of diagnosed glaucoma at the time of the filing of the claim or during the pendency of the appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Court has indicated that in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. 223. Absent a current diagnosis, the Board finds that service connection is not warranted for glaucoma. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). REASONS FOR REMAND Upon review of the record, the Board was unable to locate the Veteran’s entire West Virginia Air National Guard treatment records and personnel records - only portions of which had been supplied by the Veteran. The Board finds that remand is necessary to associate these records with the claims file. See 38 U.S.C. 5103A(b) (2012); 38 C.F.R. 3.159(c)(2) (2017). Further, the Board requests that the Agency of Original Jurisdiction (AOJ) verify the Veteran’s periods of active duty for training (ADT) and inactive duty for training (IADT) during his service with the West Virginia Air National Guard.   1. Entitlement to service connection for bilateral hearing loss and tinnitus Upon review of the Veteran’s claims file, the Board was unable to locate a copy of the June 2012 VA examination for hearing loss and tinnitus. On remand, the Board requests that the AOJ associate a copy of the June 2012 VA examination report with the record. Additionally, the Veteran, within various statements and within hearing testimony, indicated that in February 1997, while on active duty with the West Virginia Air National Guard, the Veteran injured his ears when the plane he was flying in descended and wasn’t depressurized properly. He and the other Reservists had extreme ear pain, some with some bleeding in the ears, and the Veteran reported ringing in his ears. The Veteran then was referred to a private Ear, Nose and Throat doctor for treatment, the records of which have been associated with the claims file. The Veteran is claiming service connection for bilateral hearing loss and tinnitus as related, in part, to this incident in February 1997. Therefore, the Board, as discussed above, must associate with the claims file the Veteran’s West Virginia Air National Guard records and verify the Veteran’s periods of ADT and IADT prior to adjudicating the claim on appeal. 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD In a December 2015 VA examination for sleep apnea, the VA examiner opined that the Veteran’s diagnosed obstructive sleep apnea was less likely than not related to service-connected PTSD. In his rationale, the VA examiner indicated that “the medical literature does not support any relationship between the two conditions.” In August 2013, prior to the December 2015 VA examination, the Veteran ad submitted medical literature and articles, including an article titled “CHEST: Apnea Elevated in Vets with PTSD”, which highlighted that “almost all combat veterans with posttraumatic stress disorder (98%) have a sleep disorder.” Additionally, within the cited study, of 135 young, healthy combat veterans with PTSD, 54 percent of them were diagnosed with obstructive sleep apnea, whereas, in the general population, the rate of obstructive sleep apnea is only 20 percent. The Board finds that remand is necessary for a VA addendum opinion to discuss the medical literature of record in relation to the Veteran’s claim for service connection for obstructive sleep apnea, to include as secondary to posttraumatic stress disorder. Additionally, the Board notes that the Veteran was first diagnosed with obstructive sleep apnea by sleep study in November 2001, and not in 2011 as cited by the VA examiner. 3. Entitlement to service connection for malignant melanoma of the left forearm and right leg Upon review of the record, the Board finds that the Veteran has currently diagnosed malignant melanoma of the left forearm and of the right leg. While the Veteran has claimed that his current skin disability could be related to exposure to herbicide agents while serving in the Republic of Vietnam, the Veteran has also claimed that his current disability could be related to sun exposure while serving in Vietnam within a January 2015 VA Form 9. The Veteran has not yet been afforded a VA examination to determine the nature and etiology of his currently diagnosed malignant melanoma of the left forearm and right leg. Therefore, on remand, the AOJ should afford the Veteran a VA examination prior to adjudication of the appeals by the Board. 4. Entitlement to an increased rating for service-connected PTSD Within the April 2018 videoconference hearing, the Veteran testified that after his last VA examination in December 2015 for PTSD, he was hospitalized for attempted suicide in December 2016 at the Clarksburg VA Medical Center. Additionally, after the December 2015 VA examination, VA mental health outpatient treatment records were associated with the claims file, documenting treatment from January 2015 to October 2015, which were not considered by the December 2015 VA examiner. On remand, the Board finds that the AOJ should associate with the claims file all outstanding medical records from the Clarksburg VA Medical Center after 2015, and should schedule a VA examination to determine the current severity of PTSD prior to rendering a decision on the appeal. The matters are REMANDED for the following action: 1. The AOJ should obtain any available West Virginia Air National Guard service treatment records and personnel records dated through 2004 from the appropriate service department and should associate them with the record. If such records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. 5103A(b)(2) and 38 C.F.R. 3.159(e). 2. The AOJ should verify through official sources periods of active duty for training (“ADT”) and inactive duty for training (“IADT”) performed by the Veteran while serving with the West Virginia Air National Guard. This should include, but is not limited to, contacting the National Personnel Records Center (“NPRC”) to verify all the Veteran’s dates of National Guard service. 3. The AOJ should associate with the claims file a copy of the June 2012 VA examination for hearing loss and tinnitus, which is not currently of record. 4. The AOJ should associated with the claims file all outstanding VA treatment records from the Clarksburg VAMC, to include records from December 2016 showing the Veteran’s admission for attempted suicide. 5. Upon completion of the above development, the AOJ should obtain a VA addendum opinion by a qualified physician to determine the etiology of currently diagnosed obstructive sleep apnea, to include as secondary to service-connected PTSD. The entire claims file must be provided and reviewed prior to rendering the requested opinion. Upon review of the record, the Board requests the following opinions: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that diagnosed obstructive sleep apnea was incurred in or caused by a period of active duty service. (b) Whether it is at least as likely as not (a 50 percent or greater probability) that diagnosed sleep apnea was (i) caused by, or (ii) aggravated by service-connected PTSD. In rendering the above opinions, the Board directs the examiner’s attention to the Veteran’s National Guard personnel records and periods of ADT and IADT as verified by the AOJ; and the medical literature of record submitted in August 2013 tending to show a relationship between PTSD and sleep apnea. 6. Schedule the Veteran for a VA examination with a qualified physician to determine the nature and etiology of currently diagnosed malignant melanoma of the left forearm and right leg. The entire claims file must be provided and reviewed prior to rendering the requested opinion. All necessary testing should be conducted and recorded. Upon review of the record, the Board requests the following opinion: Whether it is at least as likely as not (a 50 percent or greater probability) that diagnosed malignant melanoma of the left forearm and right leg was incurred in or caused by active service. In rendering the above opinion, the Board directs the examiner’s attention to: the January 2015 VA Form 9 in which the Veteran discusses sunburns while serving in the Republic of Vietnam. (Continued on the next page)   7. The Veteran should be afforded a VA psychiatric examination to address the current severity of service-connected PTSD. All indicated studies or testing should be conducted. The VA examiner should discuss the Veteran’s hearing testimony and VA treatment records showing the Veteran’s admission to the Clarksburg VA Medical Center for attempted suicide in December 2016. 8. After all development has been completed, the AOJ should review the claims on appeal again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and his representative with a supplemental statement of the case and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel