Citation Nr: 21064945 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 15-33 898 DATE: October 22, 2021 ORDER 1. Entitlement to service connection for glaucoma, to include as due to exposure to mustard gas, is denied. REMANDED 2. Entitlement to service connection for a psychiatric disability to include posttraumatic stress disorder (PTSD) and unspecified depressive disorder, is remanded. FINDING OF FACT The Veteran's bilateral open angle glaucoma with associated bilateral optic nerve atrophy, was not manifested during his service, and the preponderance of the evidence is against a finding that such disability is etiologically related to his service, to include as due to mustard gas therein. CONCLUSION OF LAW Service connection for glaucoma is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.316. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from September 1942 to February 1946. The matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision. Most recently, in February 2020, this case was remanded for further development. [Since the Board remand in February 2020, an August 2021 rating decision granted service connection for chronic rhinitis and chronic pharyngitis. Those issues are no longer before the Board.] Service Connection 1. Entitlement to service connection for glaucoma is denied. The Veteran asserts that he has glaucoma that was incurred in service. Specifically, he asserts his glaucoma is due to his VA-conceded exposure to mustard gas during service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection there generally must be evidence of: (1) the existence of a present (claimed) disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Claims based on the chronic effects of exposure to mustard gas are governed by the provisions of 38 C.F.R. § 3.316, which provides that: (a) Except as provided in paragraph (b) of this section, exposure to the specified vesicant agents during active military service under the circumstances described below, together with the subsequent development of any of the indicated conditions, is sufficient to establish service connection for that condition: (1) Full-body exposure to nitrogen or sulfur mustard during active military service together with the subsequent development of chronic conjunctivitis, keratitis, corneal opacities, scar formation, or the following cancers: nasopharyngeal, laryngeal, lung (except mesothelioma), or squamous cell carcinoma of the skin. (2) Full-body exposure to nitrogen or sulfur mustard or Lewisite during active military service together with the subsequent development of a chronic form of laryngitis, bronchitis, emphysema, asthma, or chronic obstructive pulmonary disease (COPD). (3) Full-body exposure to nitrogen mustard during active military service together with the subsequent development of acute nonlymphocytic leukemia. (b) Service connection will not be established under this section if the claimed condition is due to the veteran's own willful misconduct, or if there is affirmative evidence that establishes a nonservice-related supervening condition or event as the cause of the claimed condition. 38 C.F.R. § 3.316. For claims involving exposure to mustard gas, a claimant must prove evidence of in-service exposure, and a diagnosis of a current above-listed associated disability, but is relieved of the burden of providing medical evidence of a nexus between the associated disability and his in-service exposure. Rather, that nexus is presumed if the other conditions are met, subject to the regulatory exceptions in 38 C.F.R. § 3.316(b). See Pearlman v. West, 11 Vet. App. 443, 446 (1998). As VA has conceded exposure to mustard gas when it awarded service connection for COPD and chronic conjunctivitis in a March 2018 rating decision, whether the Veteran was exposure to mustard gas in service is settled, and not in dispute. It is also not in dispute that the Veteran has a diagnosis of glaucoma. However, glaucoma is not a disease that is presumed service-connected when manifested in mustard gas-exposed veterans. See 38 C.F.R. § 3.316. Although the list of such disabilities does include other (than the already-service-connected conjunctivitis) eye conditions, including keratitis, corneal opacities, and scar formation, there is no indication in the record, including in the medical records provided or statements by the Veteran, that he has those conditions. As the presumptive provisions of 38 C.F.R. § 3.316 do not apply to his glaucoma, to substantiate the claim of service connection for glaucoma under a "due to exposure to mustard gas" theory of entitlement, such causation must be shown by competent (medical, as that is a medical question) affirmative evidence. When a disease is first diagnosed after service but is not a disability warranting presumptive service connection, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's service treatment records (STRs) are certified to be unavailable, and he was notified that they were "fire related" (presumed destroyed in a 1973 fire at the National Personnel Records Center (NPRC) facility). When, through no fault of the Veteran, records under the control of the Government are unavailable, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). Additional searches were conducted. A search for Surgeon General Office (SGO) records was unsuccessful. See VA Form 21-3101 received February 1993; September 2002 VA Form 3101. The Veteran's service separation examination report dated in February 1946 does not mention any problems involving the Veteran's eyes. The examiner specifically indicated that there were no eye abnormalities at that time. The post-service medical evidence of record includes an August 1989 VA record that notes the Veteran had a history of glaucoma and bilateral cataracts. See medical record. In September 1989, Dr. Rivera Polanco reported that the Veteran had suffered from a chronic allergy since 1946 when he finished military service and that the history of this illness included, in pertinent part, difficulty with allergies in both eyes and surgery for glaucoma in both eyes. On September 2002 VA eye examination, the Veteran reported a history of glaucoma which was treated in the past with laser and surgery. He also referred to a history of pterygium surgery and bilateral cataract surgery. Following examination, the diagnosis, in pertinent part, was chronic open angle glaucoma with associated bilateral optic nerve atrophy (OS>OD) and refraction error. An opinion regarding the etiology of this condition was not included. In March 2007, Dr. M. N. (N.) reported in pertinent part that the Veteran was in the Army from 1942 to 1946 and acquired chronic conditions of the eyes due to chemical agents (does not appear to specifically address mustard gas and lacks rationale) "for contact of long-term that produce to his complications of permanent treatment that worsening and presenting disability permanently to labor since medications in Army until date." Dr. N indicated that his conditions were potentially severe and dangerous for his life in the last years. The prognosis was very poor. In pertinent part, Dr. N. diagnosed the Veteran with glaucoma and allergies (chronic) of the eyes. See medical certificate. In March 2008, the Veteran's wife reported that they were married in 1949 and that prior to then, he had complained of conjunctivitis. She asserts that the Veteran reported that this problem was related to his service between 1942 and 1946. See March 2008 statement from A.T.R. In March 2008, the Veteran's daughters reported that for as long as they can remember the Veteran had been complaining of conjunctivitis. See March 2008 statement from I.C. and E.I.C. In a statement received in October 2009, Dr. N. reports that the Veteran complained of irritations of the eyes. The diagnosis was eye conjunctivitis. Dr. N. indicated that such was due to secret testing of "mustard gas" in the field and gas chamber. December 2017 correspondence from the Under Secretary of the Veterans Affairs for Benefits, in the record discusses legislation regarding exposure to mustard gas or Lewisite during World War II. As noted above, in a subsequent March 2018 rating decision, the RO conceded that the Veteran was exposed to mustard gas in service. Specifically, the RO found that the Veteran's records indicate he served in the Panama Canal Zone, and that his statements regarding his exposure were consistent with the facts and circumstances of his service. On January 2020 VA examination, the diagnoses were bilateral glaucoma, bilateral blindness, and bilateral chronic conjunctivitis. The Board notes that a January 2020 rating decision denied service connection for bilateral vision loss. That denial was not appealed, and that matter is not before the Board. Ina a March 2020 VA opinion regarding the etiology of the Veteran's diagnosed glaucoma (considering that his exposure to mustard gas in service was conceded by VA), pursuant to the February 2020 Board remand, the consulting provider stated: The Veteran has diagnosis of bilateral open angle glaucoma upon eye examination on January 17, 2020. The VBMS was reviewed and there are multiple mentions of his diagnosis for many years on multiple eye examinations on the VA hospital facility and previous C&P examinations. The Veteran states that he was exposed to mustard gas while in service although there is no evidence on the STR notes concerning that event. It is important to mention that exposure to toxic materials can affect the external structures of the eye as the cornea, sclera or conjunctiva causing conjunctivitis, abrasions or lacerations. The etiology of open angle glaucoma clearly states that it is due to an age related degenerative and defective drainage system of the eye causing an increase in intraocular [pressure] due to poor outflow of the aqueous humor. This in turn can result in optic nerve atrophy and visual field defects and peripheral constriction. It is not probable, therefore that the Veteran's exposure to mustard gas caused or aggravated his glaucoma condition. Bilateral open angle glaucoma as mentioned above is an age related degenerative progressive condition that would progress independently of any other eye events that might have been incurred on the Veteran's eyes while on service. The Veteran has not submitted any competent (medical) and adequately probative (see discussion below) evidence that his glaucoma is in fact etiologically related to his service, to include as due to his exposure to mustard gas therein. The Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for glaucoma. As glaucoma was not shown in service, or shown to have been diagnosed until many years after the Veteran's service (and is a not a disease presumed to due to exposure to mustard gas) is a medical question. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the Veteran and the providers of lay statements in support of his claim are laypersons, their opinions are not competent (and probative) evidence in this matter. The Board acknowledges the Veteran's and his wife's reports that he has had continuity of eye symptoms since service. They are competent to observe and report he has had eye problems continuously since service. They are not, however, competent to diagnose glaucoma or establish by their own opinion that the continuous symptoms he had since service reflected an underlying glaucoma, and they have not submitted any supporting medical opinion or treatise evidence to that effects, glaucoma is not a disease listed in . Regardless, glaucoma is not a chronic disease listed in 38 C.F.R. § 3.309(a) for which service connection may be established by showing continuity. The only competent (medical) evidence in the record that adequately and fully addresses the etiology of the Veteran's glaucoma is in the opinion by the March 2020 VA consulting provider's opinion against the claim. The opinion includes rationale that directly addressed the alleged theory of entitlement and cites to supporting medical principles (in essence, that exposure to mustard gas is trauma from an irritant, and that the types of eye disabilities that would result from such exposure are those involving the external eye structures (such as the service-connected conjunctivitis) and that glaucoma is not such a disability, as it results from age-related degeneration and defective drainage system to the eye. The Board finds that opinion to be competent and probative evidence in the matter. The Board acknowledges the March 2007 opinion by Dr. N. relating the Veteran's eye disabilities, generally, to chemical agents. This opinion is nonspecific to glaucoma (as noted above conjunctivitis due to exposure to mustard gas is service-connected), and nonspecific to exposure to mustard gas, and does not include explanation of rationale. Similarly, Dr. N's October 2009 opinion addressed only the eye diagnosis of conjunctivitis, and did not address the Veteran's glaucoma (and that opinion also did not include rationale). Therefore, that opinion also lacks probative value. Considering the forgoing, the Board finds that the preponderance of the probative evidence is against the claim of service connection for glaucoma. Therefore, the appeal in the matter must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 2. Entitlement to service connection for a psychiatric disability, to include PTSD and unspecified depressive disorder. The Veteran asserts that he has a psychiatric disability that was incurred in service, to include as due to exposure to mustard gas or is secondary to a service- connected disability. On May 2017 VA examination, the examiner stated the "Veteran denies and service records are silent for any mental diagnosis nor treatment, pre[-]military, military or post-military. The examiner noted that the Veteran's record shows that in 2007, he was treated for major depression secondary to deterioration of physical and visual condition. The examiner also noted that since 2016, the Veteran was being treated by a VA blind clinic psychology service and that a discharge plan stated, "Veteran appears to be having some minor challenges adjusting to limitations secondary to visual loss. He appears receptive and knowledgeable to coping strategies to help with adjustment and acceptance. [The Veteran] at present time denied feeling depressed or anxious at the moment of the interview. Furthermore, [the Veteran] denied any suicide or homicide ideation at present. It is suggested that [the Veteran] is emotionally stable at present." The May 2017 VA examiner diagnosed an unspecified depressive disorder and indicated that the Veteran did not present the clinical feature for a diagnosis of PTSD per DSM-V criteria. The examiner opined that the Veteran's unspecified depressive disorder is not related to the Veteran's military service time. In an October 2020 VA addendum opinion, the consulting provider stated the "Veteran denies and service records are silent for any mental diagnosis nor treatment, pre[-]military, military (1942-1946) or post-military. The examiner noted that the Veteran's record shows in 2007, "67 years post military service," he was treated for major depression secondary to deterioration of physical and visual condition. The examiner noted that since 2016, the Veteran was being treated by a VA blind clinic psychology service and that a discharge plan stated, "Veteran appears to be having some minor challenges adjusting to limitations secondary to visual loss. He appears receptive and knowledgeable to coping strategies to help with adjustment and acceptance." The diagnosis was unspecified depressive disorder. The examiner opined the Veteran's unspecified depressive disorder is not related to or aggravated by or secondary to his active military service. The Board finds the record raises a secondary service connection theory of entitlement that must be addressed. The Veteran has a diagnosis of a depressive disorder, and has established service connection for various disabilities; medical evidence in the record suggests his depression may be related to his various disabilities (including those service-connected). The record does not include an adequate medical opinion addressing the secondary service connection theory of entitlement; a remand for such opinion is necessary. The matters are REMANDED for the following: Arrange for the Veteran's record to be forwarded to an appropriate clinician (psychologist or psychiatrist) for review and an addendum medical opinion regarding the etiology of his currently diagnosed unspecified depressive disorder, and in particular whether it is secondary to (was caused or aggravated [the opinion must address aggravation] by) his service-connected disabilities (conjunctivitis, asthma, pharyngitis, and rhinitis). [If further examination of the Veteran is deemed necessary for an opinion sought, it should be arranged.] The provider should respond to the following: (a.) Identify the likely etiology for the Veteran's currently diagnosed psychiatric disability (unspecified depressive disorder). Specifically, is it at least as likely as not (a 50% or better probability) that it was caused or aggravated by one or more of those disabilities? (b.) If the diagnosed psychiatric disability, is found to not have been caused or aggravated by a service-connected disability, identify the etiology for the disability that is considered to be more likely, and explain why that is so. All opinions must include rationale that cites to supporting factual data and medical principles. The rationale must reflect consideration of/address the notations in medical evidence of record suggesting that his depressive disorder may be related to his disabilities (including those service-connected). If an opinion sought cannot be provided with resort to mere speculation, there must be explanation why resort to speculation is necessary. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Griffith The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.