Citation Nr: 1809362 Decision Date: 02/16/18 Archive Date: 02/27/18 DOCKET NO. 14-20 378A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for ischemic optic neuropathy of the right eye, to include as secondary to service-connected diabetes mellitus and / or coronary artery disease. 2. Entitlement to specially adapted housing. REPRESENTATION Veteran represented by: Blinded Veterans Association WITNESSES AT HEARING ON APPEAL The Veteran and his wife, D. T. ATTORNEY FOR THE BOARD L. Pelican, Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from September 1964 to August 1968, with service in the Republic of Vietnam from September 1967 to July 1968. The Veteran was awarded the Vietnam Service Medal and Vietnam Campaign Medal, among other decorations. This case comes before the Board of Veterans' Appeals (the Board) from November 2010 and November 2011 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing before the undersigned Veterans' Law Judge (VLJ) in July 2017. A transcript of that proceeding has been associated with the claims file. FINDINGS OF FACT 1. In July 2017, prior to the promulgation of a decision on the appeal, the Veteran and his representative indicated that the Veteran requested to terminate the appeal of his claim for specially adapted housing. 2. The most probative evidence is at least in equipoise as to whether the Veteran's ischemic optic neuropathy of the right eye is related to his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of entitlement to specially adapted housing by the Veteran have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. Entitlement to service connection for ischemic optic neuropathy of the right eye is granted. 38 C.F.R. §§ 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the Veteran or by his or her authorized representative. Id. During the July 2017 Board hearing, the Veteran withdrew the claim for specially adapted housing. There remain no allegations of errors of fact or law for appellate consideration with respect to this claim. The Board does not have jurisdiction to review this claim; it is dismissed. Service Connection - Ischemic Optic Neuropathy The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The appeal for ischemic optic neuropathy has been considered with respect to VA's duties to notify and assist. Given the favorable outcome in this decision that represents a full grant of this claim, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. The Veteran contends that his ischemic optic neuropathy of the right eye is caused or aggravated by his service-connected diabetes mellitus or coronary artery disease. See December 2009 claim, June 2011 Notice of Disagreement, and June 2014 VA Form 9. To establish secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See 38 C.F.R. § 3.310 (2016); Wallin v. West, 11 Vet. App. 509 (1998). The evidence shows the Veteran has a diagnosis of ischemic optic neuropathy of the right eye, and he is service-connected for diabetes mellitus and coronary artery disease; thus he meets the first two Wallin elements. See June 2002 Eye Institute of West Florida record and July 2010 VA eye examination report. The remaining question is whether there evidence of a nexus between the ischemic optic neuropathy and the service-connected disabilities. An April 2010 VA diabetes mellitus examination report indicated that the Veteran's optic neuropathy was unrelated to diabetes mellitus, but provided no rationale for that finding. A July 2010 VA examiner opined that the Veteran's ischemic optic neuropathy was less likely than not due to diabetes mellitus. The examiner noted the Veteran lost right eye vision in 2002 but was not diagnosed as new onset diabetic until December 2009. He further explained that based on information from UpToDate, the precise mechanism of optic disc ischemia was unclear but most cases occurred spontaneously in older adults with a history of atherosclerosis risk factors including hypertension, diabetes, ischemic heart disease, elevated cholesterol, stroke, and / or tobacco use. The examiner further noted that the diabetes mellitus was noted in 5 to 28 percent of cases. In an October 2014 letter, Dr. R. R. wrote that the Veteran experienced ischemic optic neuropathy with substantial vision loss in 2002, and was told he had borderline diabetes and no further treatment was recommended; blood sugars were noted to be high on several tests but no medication was prescribed. Dr. R. R. opined that the Veteran had atherosclerotic microvascular disease involving the retinal artery leading to the ischemic event, and that there was no doubt that the starting point for all these events was the non-treatment of diabetes. Other pertinent evidence includes January 2010 and August 2011 notes from Dr. G. M. indicating that the Veteran was diabetic as of April 8, 2002, as confirmed by lab studies from that time, and was very likely diabetic for a long time prior to that date. The July 2010 VA opinion is of limited probative value for two reasons. First, the examiner's conclusion that the Veteran was first diagnosed with diabetes in 2009 is inconsistent with evidence of record indicating the Veteran's diabetes was present at the time of the Veteran's ischemic event. See January 2010 and August 2011 notes from Dr. G. M. Second, the basis for the examiner's negative finding is at odds with a recent precedential decision by the United States Court of Appeals for Veterans Claims (the Court). In Frost v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1747, the Court held that 38 C.F.R. § 3.310 contained no temporal requirement that the primary condition be service-connected, or even diagnosed, at the time the secondary condition was incurred. In other words, for a Veteran to be service connected on a secondary basis under a causation theory, the primary disability need not be service-connected, or even diagnosed, at the time the secondary condition is incurred. The October 2014 opinion from Dr. R. R. is consistent with the evidence of record, and is supported by a reasoned rationale. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). The Board affords it significant weight. In the absence of probative evidence to the contrary, the third Wallin element is met, and service connection for ischemic optic neuropathy of the right eye is warranted. ORDER The withdrawn claim for specially adapted housing is dismissed. Service connection for ischemic optic neuropathy of the right eye is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs