Citation Nr: 21006023 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-39 893 DATE: February 3, 2021 ORDER Entitlement to service connection for right eye disability as secondary to service-connected disease or injury is denied. FINDINGS OF FACT 1. Veteran has been diagnosed with primary open angle glaucoma and pseudophakia. Such were not manifest during service. Glaucoma was not manifest within one year of separation. 2. Veteran does not have diabetic retinopathy. 3. Cataracts and uveitis were not manifest in service and are not attributable to service. 4. The Veteran’s currently diagnosed eye disabilities are not proximately due to or aggravated by a service-connected disease or injury.   CONCLUSIONS OF LAW 1. A right eye disability was not incurred in or aggravated by service, glaucoma (organic disease orf the nervous system) may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. Any currently diagnosed eye disorder is not proximately due to or a result of or aggravated by a service-connected disease or injury. 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to February 1970. The Veteran appeared at the Board of Veterans’ Appeals (Board) travel hearing in March 2020. With respect to the Board hearing, the undersigned Veterans Law Judge (VLJ) clarified the issue on appeal, explained the concepts of service connection on a direct and secondary basis, enquired as to whether there was additional outstanding evidence, and held the record open for 30 days. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. Service connection for right eye disability The Veteran contends that he has a right eye disability that is due to his service. He alternatively contends that his right eye disability is secondary to his service-connected diabetes mellitus. The evidence of record does not show that he has any right eye disability related to any remaining service-connected diseases or injuries. Pertinent legal criteria Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: “(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”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). Direct service connection The Board notes that the Veteran has been diagnosed with primary open angle glaucoma and pseudophakia. See, e.g., a VA examination report dated October 2020. To the extent that the Veteran contends that his eye disabilities are related to service the Board finds that the objective evidence outweighs this assertion. Crucially, the Veteran’s service treatment records indicate no suggestion of treatment for or complaints of symptoms or an event or injury to a right eye disability. At separation, the general eye examination was normal and the field of vision test was normal. The earliest indication of an eye disability was in 2013 when Veteran was diagnosed with bilateral glaucoma, chronic uveitis and cataracts in a private medical treatment record. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. This is decades after the Veteran’s discharge from service. The Board observes that lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person (e.g. any evidence not requiring that the proponent has specialized education, training, or experience). 38 C.F.R. § 3.159(a)(2). As such, the Veteran can competently testify about symptoms experienced in service. However, competency must be distinguished from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In the present case, the Board finds that the Veteran’s history of right eye disability since service is outweighed by the objective evidence of record in light of the lack of any post service identification until 2013, as well as the available service treatment records which indicate that a right eye disability did not form until much later after service. There is no credible evidence of an in-service manifestation of a right eye disability. In addition, there is no evidence of such pathology within one year of separation. Secondary service connection As discussed above, the competent evidence establishes that the Veteran has a right eye disability. Additionally, the Veteran is currently service-connected for diabetes mellitus. The Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the competent and probative evidence of record is against a finding that the Veteran’s current right eye disabilities are due to or aggravated by his diabetes mellitus or any service connected disease or injury and service connection is therefore not warranted on a secondary basis. Specifically, the Veteran was provided a VA examination for any right eye disabilities and diabetes mellitus in October 2020. After examination of the Veteran and consideration of the Veteran’s medical history, the examiner diagnosed the Veteran with primary open angle glaucoma and pseudophakia and concluded that it is less likely than not that these disabilities are cause or aggravated by service connected diabetes. The examiner commented that the pseudophakia is due to cataract development that was most likely age related and that the glaucoma was likely due to the uveitis that the Veteran had in the past. The October 2020 VA examination report was based upon thorough consideration and analysis of the Veteran’s pertinent medical history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”]. Here the preponderance of the evidence is against the claims and there is no doubt to be resolved. Diabetic Retinopathy The Veteran to the extent contends that he had diabetic retinopathy due to service caused disease or injury or that was aggravated (worsened in severity beyond its natural progression) by service-connected diabetes mellitus. The Board acknowledges his report and acknowledges the diagnosis from private medical treatment records. However, the Board finds that the evidence on file outweighs these findings. The October 2020 VA examination was conducted in which the examiner reviewed all relevant evidence in Veteran’s file and conducted an in-person examination. The examiner stated that the Veteran was diagnosed with primary open angle glaucoma and pseudophakia. The examiner stated that both the left and right eye were affected by the open angle glaucoma and that Veteran did not have diabetic retinopathy.   Conclusion For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection for any right eye disability, to include as secondary to service-connected disease or injury. The benefits sought on appeals are accordingly denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Konieczny, Adam 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.