Citation Nr: 21065633 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 15-42 292 DATE: October 26, 2021 ORDER Service connection for glaucoma is denied. Service connection for macular degeneration is denied. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran's glaucoma had its onset during his active duty service or within one-year post active duty service; and the weight of the evidence is against a finding that the Veteran's glaucoma was injured or aggravated during a period of active duty for training (ACDUTRA) or inactive duty training (INACDUTRA). 2. The weight of the evidence is against a finding that the Veteran's macular degeneration had its onset during his active duty service or within one-year post active duty service; and the weight of the evidence is against a finding that the Veteran's macular degeneration was injured or aggravated during a period of ACDUTRA or INACDUTRA. CONCLUSIONS OF LAW 1. The criteria for service connection for glaucoma have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for macular degeneration have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1984 to November 1996. He then served in the military reserves with periods of ACDUTRA and INACDUTRA. He testified before the undersigned Veterans Law Judge at a February 2019 Board hearing. A complete transcript is of record. This appeal was previously before the Board in October 2020. The service connection claims for glaucoma and macular degeneration were remanded consistent with a December 2019 Joint motion for Partial Remand (JMPR). The JMPR suggested that the Board had failed to confirm the Veteran's period of active duty service between 2001 and 2002. See 38 C.F.R. § 4.6. The Court noted that the Veteran's diagnosis for macular degeneration and glaucoma were both noted in November 2001, and the Board denied entitlement to service connection for glaucoma and macular degeneration on the basis that military personnel records showed that the Veteran was not on active duty during the time he was diagnosed with those disabilities. However, the military records showed that between May 26, 2001 and May 26, 2002, he had 65 days of active duty service. Further the Veteran testified at his Board hearing that he had been called-up on active duty orders from September 19, 2001 to November 15, 2001. The October 2020 Board remand sought to confirm the Veteran's periods of ACDUTRA and INACDUTRA, as well as whether he had confirmed periods of active service in November 2001, when he was diagnosed with glaucoma and macular degeneration. An eye examination was also ordered to determine whether; (1) the glaucoma clearly and unmistakably pre-existed his confirmed period of active service in November 2001; (2) if yes, whether the glaucoma clearly and unmistakably not aggravated during active service in 2001-2002; (3) whether the macular dystrophy should be considered symptomatic of a chronic disease from the date of enlistment, or so close thereto that the disease could not have originated in so short a period will establish preservice existence thereof or a congenital disorder; and (4) and if not, to determine whether the Veteran's macular dystrophy clearly and unmistakably preexisted his active service in November 2001; and (5) if so, determine whether the Veteran's macular dystrophy clearly and unmistakably was not aggravated by the Veteran's active military service. The Veteran's updated military personnel records were reviewed, which showed he had ACDUTRA from October 25, 2001 to November 15, 2001. See AF Form 936 dated October 30, 2001. Further, he was provided a VA examination in December 2020, which provided the requested medical opinions. The Board acknowledges the Veteran's representative's assertion that the VA regional office (RO) committed error when it failed to consider the Veteran's period of ACDUTRA in 2001. See Third Party Correspondence received January 28, 2021. Further, the representative also asserted that the December 2020 VA examiner provided an opinion solely based on the active duty period between 1984 to 1996. However, the Board also points out that an addendum medical opinion was also provided in March 2021, that took into account the concerns raised by the representative. As such, the Board finds that there has been substantial compliance with the October 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection requires competent evidence showing: (1) the existence of a present 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, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, will be rebuttably presumed if manifest to a compensable degree within one year after separation from active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Moreover, for such diseases, an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, generally, no presumptions, including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless "Veteran" status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). As to the presumption of soundness, it does not apply to a claimant who had only ACDUTRA service and who is not otherwise a Veteran. Id. In the context of Reserve or National Guard service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing IDT. 38 U.S.C. §§ 101 (24), 106, 1131; 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is generally not legally merited when a disability incurred on IDT results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). The Veteran asserts that the onset of his glaucoma and macular degeneration was during a period of ACDUTRA in November 2001. The Board acknowledges that the Veteran was called-up on active duty orders from October 25, 2001 to November 15, 2001. See AF Form 936 dated October 30, 2001. The Board also acknowledges that an October 23, 2001 ophthalmology consultation showed signs of early macular degeneration and suspected glaucoma. A November 5, 2001 consultation with a private retinal physician confirmed that he had drusen of the macula and had glaucoma. As such, the Board recognizes that the Veteran was formally diagnosed with a macular condition and glaucoma, during a period of ACDUTRA. Although the Board acknowledges that the Veteran was formally diagnosed with glaucoma and macular degeneration, the evidence does not suggest that either eye condition was incurred in or aggravated in the line of duty. Active military service includes disabilities resulting from injury or disease incurred in or aggravated during active duty and ACDUTRA and disability resulting from injury (but not disease) incurred in or aggravated during INACDUTRA or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C. §§ 101 (21), (24), 106; 38 C.F.R. § 3.6 (a), (d). The Veteran was afforded a VA examination in December 2020. After an in-person examination and a review of the Veteran's claims file, the examiner provided negative nexus opinions for both glaucoma and macular degeneration. The examiner reported that glaucoma and macular degeneration were not clearly and unmistakably a pre-existing because he only had active duty service from 1984-1996. Regarding whether either condition was considered a congenital disorder, the examiner explained that neither condition existed at or close to his initial enlistment. The examiner reported that the macular degeneration was not aggravated by service because macular degeneration is due to aging. The Veteran provided a medical opinion from a private physician in January 2021. After an in-person examination and a review of the claims file, the physician provided a positive nexus opinion for direct service connection. The physician noted that he was formally diagnosed for both glaucoma and macular degeneration in November 2001 and explained that service connection is warranted because the glaucoma and macular degeneration both had an occurrence of symptoms when he was on active duty. However, it is noted that Dr. Ellis appears to treat military service as containing both active duty and reservice, without distinguishing the very different legal postures for disability claims deriving from such service. Additionally, Dr. Ellis did not address the fact that the Veteran was actually shown to have macular problems prior to going on active duty for training and was diagnosed during active duty for training only because of a referral from the pre-service evaluation. The RO noted that the Veteran was confirmed to have a period of active service from October 26, 2001 to November 15, 2001 and an addendum opinion to the December 2020 opinion was requested. The VA examiner was asked by the RO to provide an opinion on whether the Veteran's glaucoma was aggravated beyond its normal progression by the Veteran's 21-day period of service from October 26, 2001 to November 15, 2001. The Veteran was provided an addendum opinion in March 2021. The examiner provided a negative nexus opinion and explained that the suspected glaucoma was not aggravated by the service from October 26, 2001 to November 15, 2001 because glaucoma progresses over a period of months or years and would not be affected by service of only a few weeks. Here, there are three separate medical opinions, the December 2020 VA examiner, who also provided the March 2021 addendum opinion, and the January 2021 private physician. As previously discussed, the December 2020 VA examiner did not take into account the Veteran's period of ACDUTRA in 2001, in regard to the questions about whether there were pre-existing conditions. Here, the Board finds that the Veteran, upon being called up to active duty in 2001, had pre-existing eye conditions, to include both glaucoma and macular degeneration. However, the issue at the heart of this appeal is whether the Veteran's glaucoma and/or macular degeneration were aggravated by the 2001 period of ACDUTRA. To the extent the December 2020 VA examiner's opinion did not take into account the ACDUTRA service in 2001, those portions of the opinion are afforded little probative weight. The Board also finds the January 2021 private physician's opinion to be of little probative weight. The physician opined that service connection was warranted because he was formally diagnosed with both glaucoma and macular degeneration during a period of active service. However, the physician did not provide an opinion on whether the Veteran's eye conditions were aggravated during that period of active service in 2001, and he doesn't account for the finding of macular degeneration before the Veteran went on active duty for training. The VA examiner provided an opinion as to whether the Veteran's military service aggravated his macular degeneration in December 2020 and glaucoma in the March 2021 addendum opinion. The VA examiner provided his reasoning as to why there was no aggravation by the Veteran's active service. Because his opinions were better reflective of the evidence of record, they are afforded more probative weight than Dr. Ellis' opinion. The VA examiner who provided the December 2020 and March 2021 medical opinions explained that the Veteran's macular degeneration was not aggravated by his active service because macular degeneration is due to aging; and his glaucoma was not aggravated by active service because it progresses over a period of months or years and would not be affected by service of only a few weeks. The examiner also reported that both conditions are mild and could not have been aggravated beyond their natural progression. Here, the Board cannot conclude that the Veteran developed both glaucoma and macular degeneration when he was called up to active service in 2001 for about 22 days. This is based on the reports of the competent medical professions of record. For example, the private physician reported that he was having difficulty reading for two years prior to 2001, seemingly suggesting that he was starting to show the symptoms of eye problems, prior to his formal diagnoses in 2001. Further, the VA examiner indicated that both eye conditions progress over time. As such, because the 2001 active service was a period of in the context of Reserve service, service connection may only be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA. Based on the foregoing, service connection can only be granted if the eye conditions were aggravated while performing ACDUTRA. Here, the only competent evidence of record indicates that the Veteran's glaucoma and macular degeneration were not aggravated by his 2001 period of ACDUTRA. The Veteran's private physician provided a positive nexus opinion regarding direct service connection; however, as explained such an opinion is inappropriate because for service connection to be warranted, the evidence must show that the disease or injury was incurred in or aggravated while performing ACDUTRA. Here, the private physician did not provide an opinion regarding whether either eye condition was aggravated by his active service. As such, the weight of the evidence is against finding that service connection is warranted for either glaucoma or macular degeneration. Accordingly, service connection for glaucoma and macular degeneration is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, Associate Counsel 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.