Citation Nr: 18150409 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 14-25 688 DATE: November 15, 2018 ORDER Service connection for glaucoma of the left eye, inclusive of traumatic/angle-recession glaucoma, is granted. Service connection for glaucoma of the right eye is denied. Service connection for a scar of either eye is denied. REMANDED A claim for a higher initial rating for service-connected acquired psychiatric disorder is remanded. A claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. FINDINGS OF FACT 1. Traumatic angle recession glaucoma of the left eye is related to service. 2. The weight of competent and credible evidence is against glaucoma of the right eye having developed in service or otherwise being causally related to service. 3. The weight of competent and credible evidence is against the Veteran having a scar on either eye. CONCLUSIONS OF LAW 1. The criteria for service connection for traumatic angle recession glaucoma of the left eye a left eye disability but not for a scar, are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.102, 3.303 (2017). 2. The criteria for service connection for a right eye disability, to include glaucoma or scar, have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1976 to February 1978. The Department of Veterans Affairs (VA) is grateful for his service. The Board in September 2016 reopened the previously finally denied claim for service connection for residuals of left eye injury. The Board then remanded the claims for service connection for eye disabilities inclusive of glaucoma or scar of each eye, to afford the Veteran opportunity to submit additional evidence supportive of in-service injury or a link between service and claimed conditions, and to obtain an examination addressing questions of any relationship between claimed disabilities and service. The Board is satisfied that such development has been substantially fulfilled, and hence may proceed with adjudication of the claims. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The Board in September 2016 also remanded a claim for service connection for a psychiatric disorder. The VA Regional Office (RO) by a February 2017 decision granted service connection and assigned an initial 30 percent rating for a psychiatric disorder. Following the Veteran’s appeal of that initial rating, a Decision Review Officer (DRO) at the RO by a December 2017 decision granted an increase of that initial rating to 50 percent effective from the date of service connection. The Veteran has continued his appeal of that initial rating, and the initial rating claim is now before the Board; it is the subject of remand, below, together with the claim for TDIU. Regrettably, service treatment records from the Veteran's period of service from May 1976 to February 1978 are absent and presumed destroyed, and hence any treatment or examination records which may have reflected eye disability or eye injury are unavailable for the Board’s review. A formal finding of unavailability was made by an April 2007 VA memorandum, documenting exhaustion of reasonable efforts to locate the records. The Veteran was afforded notice of this by an April 2007 letter. Under such circumstances, VA regulations provide that service connection may be shown through other evidence. Smith v. Derwinski, 2 Vet. App. 147 (1992); 38 C.F.R. § 3.303 (a) (2017). This evidence may include private medical records showing treatment of the claimed disability, fellow service personnel statements, and personal testimony. The Board’s remand in September 2016 was in part to afford additional opportunity for the Veteran to provide such other evidence. Also under circumstances of lost service treatment records, VA has a heightened duty to consider the applicability of the benefit of the doubt rule. Russo v. Brown, 9 Vet. App. 46, 51 (1996). The Board has herein exercised its heightened duty to consider the benefit of the doubt rule, but ultimately finds it inapplicable to the issues adjudicated herein, due to the evidence preponderating against the claims. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for Eye Disabilities Inclusive of Glaucoma or Scar of Each eye Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. 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). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154 (a) (2012); 38 C.F.R. § 3.303 (a). The Veteran contends, in effect, that he developed glaucoma of each eye in service, including glaucoma in the left eye related to injuries sustained in service and glaucoma in the right eye related to amblyopia identified on service entrance. The Veteran has reported that he had eye difficulties from service as well as a history of injury due to physical assault to the left eye in service, resulting in current eye disabilities. The Board has duly considered these reports. Service personnel records include a service entrance examination in May 1976 which notes the presence of “congenital amblyopia of the right eye.” Some correctible visual impairment in each eye was then noted, as addressed by the VA examiner in December 2017, discussed below. As noted, service treatment records are unavailable, and there is also no additional examination of record from the service period. The service personnel records do not note any eye disability or visual impairment in addition to those noted upon the May 1976 entrance examination. Post-service treatment records include no records of eye difficulties for over a decade following service. A February 1996 VA referral documents the Veteran’s complaint of having poor vision at times in the right eye as well as sometimes seeing spots in front of that eye. In 1999, the Veteran received VA care for injuries resulting from blunt force facial trauma, with bilateral zygomatic arch fractures, periorbital ecchymosis, edema subjunctive hemorrhage, diplopia, and photophobia. September through November of 2003 VA treatment records reflect assessed possible glaucoma, and complaints of foggy eyesight, floaters, decreased night vision, and left eye pain that was worse after reconstructive surgery in 1998. VA treatment records in June 2005 diagnosed angle recession glaucoma of the left eye status post multiple blunt traumas to the eye. A June 2007 private medical consultation addressing multiple conditions reviewed the Veteran’s eyes and vision. The examiner assessed, “His vision seems to be very acceptable at current levels.” The pupils were observed to be equal, round, and reactive to light and accomodation. Thus, an afferent pupillary defect was not then observed. Extraocular movements were also intact. A September 2007 VA ophthalmology consultation assessed angle recession glaucoma in the left eye with progression of superior arcuate defect in that eye in the past two years, as well as intra-ocular pressure on the left of 32. The Veteran reported being only 50% compliant with medications. A December 2007 emergency department visit documents the Veteran’s report of an assault with resulting facial pain as well as left eye visual changes, among other injuries or impairments. A history was then noted of left eye glaucoma. Both private and VA treatment records in December 2007 included findings of visual loss in the left eye with apparent afferent pupillary defect, and differential diagnoses of traumatic optic neuropathy and traumatic iritis secondary to glaucoma. These findings were following an assault in December 2007, with resulting blurry vision on the left. The Veteran was afforded a VA examination in December 2017 addressing claimed eye disabilities. Noted diagnoses included amblyopia in the right eye, glaucoma in both eyes, and cataracts in both eyes. Upon examination, the examiner found open-angle glaucoma in the right eye and traumatic/angle-recession glaucoma in the left eye. At the December 2017 examination the Veteran reported that he had a history of slag injury to the left eye while welding in service, and also suffered an injury to the eye when “three guys jumped me” and he was hit in the eye, but he was “ashamed” and did not report the injury, instead reporting that he was injured playing baseball. Reviewing the record, the December 2017 examiner noted that the Veteran was treated for glaucoma at many VA facilities. A VA eye examination in May 1999 was noted to reflect “traumatic anterior uveitis of the left eye” and “ecchymosis/subconjunctival hemorrhage, left eye secondary to trauma.” At the December 2017 examination the Veteran reported that these injuries in 1999 were the result of being assaulted. The December 2017 examiner noted that the Veteran was diagnosed with angle recession glaucoma of the left eye that was first documented in VA treatment records in June 2005, with gonioscopy of the left eye performed in August 2006, but that the date of onset of the condition was unknown. The December 2017 examiner also noted an examination in December 2007 following an altercation when the Veteran was struck by a fist in the face, with no resulting orbital fracture at that time. As reviewed by the December 2017 examiner, the December 2007 examiner also noted that treatment and examination records documented poor compliance with medications and some elevated intraocular pressure readings as high as in the 30s. The December 2007 examiner concluded that the Veteran’s visual field defect progression in the left eye could reflect glaucoma progression or traumatic optic neuropathy superimposed on existing angle recession glaucoma. An August 2011 examination was noted to show progression of visual field defect in the left eye, a superior arcuate, possibly reflecting glaucoma progression or progression of the traumatic optic neuropathy from the December 2007 trauma. The December 2017 examiner noted the most recent examination in August 2017 reflected status post trabeculectomy of the left eye in February 2017. The December 2017 examiner opined that the amblyopia in the right eye was congenital and likely refractive in nature, finding no evidence of worsening during service based on the Veteran having 20/40 vision in the eye at the service entrance examination and 20/40 vision in the eye at recent and current examinations. Regarding the Veteran’s primary open angle glaucoma in the right eye, the December 2017 examiner noted that there was no evidence of this condition in the Veteran’s service personnel records, and opined that this was not at least as likely as not related to military service. The Board notes that the Veteran’s post-service records reflect a long history of alcohol abuse and polysubstance abuse, poor or inconsistent control of diabetes mellitus, poor or inconsistent control of hypertension, and poor or inconsistent control of intraocular pressure for treatment of glaucoma. This is consistent with and supportive of the December 2017 VA examiner’s assessment that the Veteran’s glaucoma was not likely related to service, based in part on post-service records reflecting development of health issues related the Veteran’s failure to attend to medical issues such as elevated intraocular pressure post-service. Post-service medical records document elevated intraocular pressure readings as well as the Veteran’s failure to treat this on a consistent basis to prevent progression to glaucoma. The December 2017 examiner also opined that the Veteran’s traumatic/angle recession glaucoma of the left eye was more likely related to injuries sustained after service than due to service, basing this opinion on the Veteran’s history of being assaulted “numerous times since discharge” with at least two of these resulting in trauma to the left eye, in 1999 and 2007. The Board observes that this damage to the left eye on those two occasions is well-documented, as detailed in medical findings noted above, inclusive of significant observed damage in 1999 and the Veteran’s left eye afferent pupillary defect observed in December 2007 following assault to the eye, which defect was not observed in June 2007. Regarding the Veteran’s assertion of a slag injury to the left eye when welding, the December 2017 examiner noted that there was no scar found on either eye and service personnel records did not document a welding injury. The Board notes that the findings and conclusions of the December 2017 examiner are consistent with the Veteran’s documented history of injuries and eye disability within the claims file. A VA medical expert opinion was obtained in June 2018 to address the Veteran’s claimed eye disabilities. The physician noted that the Veteran’s congenital amblyopia of the right eye “appeared to be mild” and “stationary in nature” when noted on service entrance, based on the Veteran’s vision in the right eye not then being significantly worse than in the left. The physician found that there was no evidence of worsening of the right eye congenital amblyopia during service. Addressing the question of whether another eye disability existed prior to service and worsened during service, the medical expert noted that there were no service medical records to assess whether there was a pre-existing disability of the left eye or a left eye disability that developed during service or worsened during service. The medical expert noted that the Veteran did provide a narrative of two injuries to the left eye during service that could have caused a disability during service. Those two self-reported, uncorroborated injuries were a welding incident and an assault injury to the left eye. However, the medical expert noted that post-service records indicate that the Veteran had severe facial trauma with bilateral zygomatic arch fractures in 1999 and with subsequently diagnosed traumatic angle recession glaucoma, as well as a history of another assault in 2007. Due to the absence of service records to prove or disprove the Veteran’s assertions, the medical expert essentially opined that the Veteran’s traumatic angle recession glaucoma of the left eye was related to injuries reportedly sustained in service. The Board has carefully reviewed all the evidence of record, and finds that the preponderance of the evidence is against the Veteran’s right eye open-angle glaucoma having developed in service or otherwise being causally related to service. The Board finds that the weight of competent and credible evidence favors the December 2017 examiner’s conclusion that the weight of the evidence is against the Veteran’s glaucoma of the right having developed in service or otherwise being causally related to service. The right eye glaucoma is not found to be related to the congenital amblyopia of the right eye noted upon service entrance examination in May 1976, and the VA medical opinions are consistent in assessing that there was not an increase in severity of the right eye amblyopia from that observed upon service entrance, and no superimposing or associated disability from service was found. Further, post-service records reflect glaucoma developing in decades following service as associated with neglect of self-care in decades following service, including absence of adequate treatment for elevated intraocular pressure found following service. While the Veteran may sincerely believe that his glaucoma of the right eye is related to service, such a question relates to questions of medical diagnosis of eye conditions requiring specialized education and training, as well as specialized medical tests and examinations, and hence is beyond the ambit of lay knowledge. The Veteran’s lay opinions regarding onset or etiology of glaucoma are thus not competent evidence to support the claim. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). Based on the VHA specialist’s opinion, however, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection is warranted for traumatic angle recession glaucoma of the left eye Thus, the chronology of documented injuries to the left eye after service followed by documented eye damage inclusive of traumatic/angle-recession glaucoma weighs heavily in favor of the conclusion that these post-service injuries were intercurrent causes of the Veteran’s current traumatic/angle-recession glaucoma of the left eye. The Veteran’s belief that these conditions were related to injuries in service, absent more evidence to suggest that the traumatic/angle-recession glaucoma was present prior to post-service injuries to the left eye, ultimately is outweighed but the countervailing evidence inclusive of post-service chronology of injuries and disease and the December 2017 VA examiner’s opinions that these post-service injuries likely played a causal role in the Veteran’s current traumatic/angle recession glaucoma. The Board has also carefully reviewed the record and finds that evidence during the claim period does not support the presence of a scar on either eye. While a scar may ordinarily be observable to the layperson, a scar on the eye may not. The record well-documents the presence of left eye injury and impairment inclusive of afferent pupillary defect and traumatic/ angle-recession glaucoma, and while the Veteran’s mistaking one of these conditions for a scar of the eye would be understandable, that does not serve to cause there to be a scar where there is none. Here, the VA examiner in December 2017 was unable to find a scar, and such professional observation would be more qualified than lay observation to make such a determination where. The presence or absence of scar on the eye may be particularly non-apparent to the layperson trying to observe his or her own eye, particularly where, as here, the layperson (the Veteran) has visual impairment. The medical professional also uses appropriate tools and techniques not available to the layperson. Hence, the Board is satisfied that the weight of the evidence, here inclusive of professional medical observation, outweighs any belief the Veteran may have that he has a scar on either eye related to service. Similarly, while the Veteran may have suffered injury to an eye in the course of welding in service, the cornea may have healed, whereas the Veteran may lack knowledge of the cornea’s limited capacity to heal itself. Thus, the Veteran may suffer from a misapprehension that a long-ago injury to the eye had persisted as a scar where there now is none. The relevant point is thus that the December 2017 VA examiner has provided a well-qualified examination of the Veteran’s eyes, and the examiner’s finding that there is no scar on the eyes is sufficient to outweigh the Veteran’s contrary opinion. The Board accordingly finds the preponderance of the evidence against the Veteran’s claims for service connection for scar or glaucoma of the right and left eyes. 38 C.F.R. § 3.303. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Claims for a higher initial rating for a psychiatric disorder and for TDIU are remanded. The Veteran’s claim of entitlement to TDIU is inextricably intertwined with his appealed claim for a higher initial evaluation for service-connected psychiatric disorder, which has been variously diagnosed or characterized as a generalized anxiety disorder or PTSD. This is the Veteran’s psychiatric disability is currently assigned a 50 percent disability rating and the Board finds that service connection is warranted for traumatic angle recession glaucoma of the left eye. The Veteran last underwent VA examination for his psychiatric disorder in 2013, and treatment records reflect poor functioning subsequent to this examination, possibly indicating increased severity of psychiatric disability. Accordingly, a contemporaneous VA examination to address the Veteran’s psychiatric disability and its impact on work capacity is warranted. The matters are REMANDED for the following action: 1. Associate any outstanding records. 2. Notify the Veteran and his authorized representative that he may submit lay or medical statements or other evidence supporting his claims. This may include medical evidence of greater psychiatric disability or of impacts of psychiatric disability on his functioning including particularly on work or work-like functioning. The Veteran should be provided an appropriate amount of time to submit this evidence. 3. Then schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his psychiatric disability. All findings should be reported in detail. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechter