Citation Nr: 21028453 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 14-05 997 DATE: May 11, 2021 ORDER Entitlement to service connection for glaucoma is denied. Entitlement to service connection for vision loss is denied. FINDINGS OF FACT 1. The Veteran's glaucoma and vision loss are not secondary to service-connected psychiatric disability or hypertension and are not otherwise related to an in-service injury or disease. 2. The competent and probative evidence of record shows that the Veteran's defective vision and other congenital disorders of the eyes, including simple inferior crescents (peri-papillary atrophy), preexisted his active duty service, did not first manifest in service, and were not aggravated in service to include due to superimposed disease or injury. CONCLUSION OF LAW The criteria for service connection for glaucoma and vision loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1981 to November 1985. The Veteran also had periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) at various times. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in October 2012. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2014. A transcript of the hearing has been associated with the claims file. The Board remanded the case to the AOJ in September 2015, December 2017, February 2020, and December 2020. The AOJ substantially complied with the Board remand directives and the case has been returned for appellate review. Service Connection 1. Entitlement to service connection for glaucoma 2. Entitlement to service connection for vision loss The Veteran seeks service connection for glaucoma and vision loss, which he asserts is related to service or to his service-connected psychiatric disability and/or service connection hypertension. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-elements required to establish service connection are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In the context of Reserve or National Guard service, the term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (21), (24); see also 38 C.F.R. § 3.6. Diseases or injuries incurred or aggravated while performing ACDUTRA are eligible for service connection. 38 U.S.C. §§ 101 (24), 106, 1110. In other words, when a claim is based on a period of Reserve or National Guard service, it must be shown that the individual concerned became disabled (or died) as a result of a disease or injury incurred or aggravated in the line of duty on Reserve ACDUTRA/INACDUTRA or during Federalized National Guard service. The Veteran served in the United States Navy from November 1981 to November 1985. The Veteran's April 22, 1981 enlistment examination reflected that the Veteran had defective vision. It was noted that the Veteran's right eye was corrected to 25/200 and his left eye was corrected to 20/25. An April 27, 1981 recruitment examination record reflects that the Veteran's bilateral vision was 20/300 uncorrected, and his right eye was 20/40 corrected and his left eye was 20/30 corrected. The Veteran underwent an ophthalmology consultation in November 1981. An October 1985 separation examination reflected that the Veteran needed refraction for better visual acuity. The Veteran's right eye was corrected to 20/50 and his left eye was corrected to 20/30. VA regulations provide that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 C.F.R. § 3.304 (b). The presumption of soundness attaches only where there has been an induction examination that did not detect or note the disability that the veteran later complains about. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). VA's Office of General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303 (c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90. If a preexisting disorder is noted upon entry into service, a veteran cannot bring a claim for service connection for that disorder, but a veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under 38 U.S.C. § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see 38 C.F.R. § 3.306; Jensen, supra., at 1417; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). If the Veteran has a condition that preexisted military service, the issue becomes whether the disease or injury was aggravated during service. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. The presumption of aggravation can only be rebutted by clear and unmistakable evidence (obvious or manifest). See 38 C.F.R. § 3.306 (b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Board notes further, that refractive errors are not considered a disease or injury for VA compensation purposes. 38 C.F.R. § 3.303 (c). However, service connection may be granted for a disability which is shown to have resulted from a defect (such as refractive error) which was subject to a superimposed disease or injury during service. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). As the Veteran was noted as having defective vision on the 1981 enlistment examination, he is not considered sound and the determinative issue is whether his defective vision was aggravated in service by way of superimposed disease or injury. 38 U.S.C. § 1153. The medical evidence of record shows that the Veteran's preexisting defective vision was not aggravated by his military service. As noted, at entry into service in April 1981, the Veteran's vision in the right eye was 25/200, and his left eye was 20/25 corrected. Several days later, his right eye was 20/40 corrected and his left eye was 20/30 corrected. At separation from service in October 1985, the Veteran's right eye was corrected to 20/50 and his left eye was corrected to 20/30. Approximately 30 years after service, post-service VA treatment records reflect that the Veteran was legally blind from glaucoma in January 2011. While there were some variations in the readings in both eyes (with the right eye going from corrected vision readings of 25/200 and 20/40 to 20/50 at separation; and the left eye going from 20/25 and 20/30 to 20/30 at separation), there is no clear indication that the Veteran's vision became worse in service due to superimposed disease or injury in service. In September 2014, the Veteran submitted a statement from E. W. of the William Beaumont Army Medical Center who opined that in addition to glaucoma, the Veteran had dominant optic atrophy of both eyes; he opined that since the Veteran's vision was not correctable to 20/20 at the time of service entrance, he believed the Veteran had dominant optic atrophy at the time and it continued to get worse during his time in service. No supporting evidence or explanation was provided for the opinion regarding the worsening in service, however. Thus, the opinion is inadequate. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion.") After the Board remanded the case finding the medical evidence of record incomplete, another VA examination was provided in November 2015. The November 2015 VA examination report shows that the Veteran's preexisting simple inferior crescents (peri-papillary atrophy) noted in the entrance examination was not aggravated in service, as there was no event, treatment, diagnosis, or complaint of an eye condition other than congenital errors of refraction that existed prior to service and had their own natural progression. The examiner noted that the September 2014 finding that the dominant optic atrophy was present at entry was not supported by the findings. There was no mention of atrophy of the nerve by the examining doctor and optic atrophy was based on vision or field loss, which was not shown. There was no documentation of vision loss at the 1985 separation examination. The 20/50 and 20/30 vision was not addressed with the current refraction. However, the examiner noted that corrected vision in September 2010 at a VA eye examination was 20/25 in both eyes, the same as his entry vision. With respect to this opinion, as it is supported by a reasoned rationale in terms of describing whether the Veteran's defective vision was aggravated by service, it is more probative than the September 2014 VA medical statement. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Significantly, there is no probative medical opinion of record to the contrary. Further, the medical evidence shows that the inferior crescents in both eyes and possible coloboma in both eyes adjacent to the discs, which are congenital in etiology and existed prior to service, were not aggravated in the service. See 38 C.F.R. § 3.303 (c); VAOPGCPREC 67-90. A VA examiner in June 2019 noted that the entry eye consultation in November 1981 described simple inferior crescents in both eyes and possible coloboma in both eyes adjacent to the discs, which were congenital in etiology and existed prior to service. The preexisting simple inferior crescents (peri-papillary atrophy) noted in the entry eye consult were not aggravated in the service, as there was no event, treatment, diagnosis, or complaint of an eye condition other than congenital errors of refraction that existed prior to service and had their own natural progression. The examiner also found that when the Veteran entered the service, he had an ophthalmology consult to evaluate his optic nerves. The optic nerves were diagnosed as inferior crescents, which are benign congenital findings and require no treatment. A January 2021 VA examiner noted that on the entrance examination, the Veteran was noted as having 20/25 vision and scleral crescents, which were benign and non-progressive findings of the optic nerves. There were no visual field abnormalities noted at the entrance examination. The examiner noted that the Veteran's preexisting optic nerve anomaly had nothing to do with his visual loss, which was from glaucoma. Therefore, the medical evidence does not show that the Veteran's preexisting defective vision and other congenital eye disorders were aggravated by service. While the medical evidence does not show that the Veteran's preexisting defective vision and congenital eye disorders were aggravated by his military service in that there was no refractive error superimposed disease or injury in service and no increase in severity of the other congenital disorder in service, given that the Veteran has a post-service diagnosis of glaucoma, one of the determinative issues is whether his glaucoma is related to his military service. Several treatment providers and VA examiners have provided opinions as to the etiology of the Veteran's glaucoma and vision loss. An August 2011 private treatment provider noted that the Veteran appeared to have optic nerve heads suspicious for glaucoma in the 1980s. The treatment provider noted that it was difficult to discern whether the Veteran was truly suffering from glaucoma at that time due to the limited technology available at that time. However, based on what was recorded in his medical records, his cup to disc ratio of his optic nerve head suggested he was at minimum glaucoma suspect. The treatment provider noted that he was currently treating the Veteran for advanced to end-stage glaucoma. A January 2013 VA examiner opined that the Veteran's glaucoma was less likely than not incurred in or caused by military service. The examiner noted that due to limited ocular examination records, it was difficult to discern when the Veteran's glaucoma began and when it took a turn for the worse. The only information that was available was that he was suspect for glaucoma in the 1980s and had end stage glaucoma in 2011. In September 2015, the Board found that the January 2013 VA examination was inadequate and remanded the case for a new examination. It was noted that the VA examiner in January 2013 relied on the absence of contemporaneous medical evidence and failed to consider whether lay statements presented sufficient evidence of the etiology of the Veteran's glaucoma. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Veteran was seen at an Army Medical Center in November 2015 for his glaucoma/vision. The assessment was hereditary optic atrophy and low-tension glaucoma bilateral, severe stage. It was noted that the Veteran had a long history of vision loss. The Veteran had been followed and treated for glaucoma for years, but the glaucoma doctors felt that there was more going on. In addition, he had a stroke in August 2011 and felt that his vision had gotten worse after that. From reviewing the Veteran's old records, he noticed that in 1981 his best corrected visual acuity was 20/25 in both eyes and he was noted to have significant peripapillary in the right eye greater than left eye. In 2011, he had a retinal nerve fiber layer that was in the 60s in both eyes; and his vision in 2011 prior to the stroke was 20/70 in both eyes. About a year after the stroke his vision was 20/200 in both eyes. Based on the history and slow loss of vision, the examining clinician was inclined to diagnose dominant optic atrophy. The clinician found that the significant vision loss was likely dominant optic atrophy with low tension glaucoma on top. The Veteran worked in an environment with concussive effects and wanted to know if that could have contributed to his vision loss, but the clinician would not say definitely if it would contribute. The clinician noted that the Veteran's vision was stable or perhaps even better from the last examination. Although the vision in the right eye was worse, this was thought to be due to variation rather than actual progression. The Veteran was afforded another VA examination in November 2015. The examiner opined that it was less likely than not (less than 50 percent probability) that any currently diagnosed eye disorder to include glaucoma and dominant optic atrophy was incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that there was never any diagnosis or treatment of glaucoma while in service and that the diagnosis was made in 2010 and progressed over the last five years. The examiner opined that the most likely etiology of the present optic atrophy was the glaucoma and its progression in spite of eye drops and multiple surgeries by a glaucoma specialist. The examiner did not discuss whether the Veteran had suspect glaucoma in service. The examiner did not discuss the August 2011 private treatment record or the January 2013 VA examination, which opined that the Veteran had suspect glaucoma in the 1980s. Therefore, in December 2017, the Board remanded the claim finding that an addendum opinion was warranted to determine the nature and etiology of the Veteran's glaucoma and vision loss, to include any qualifying period of ACDUTRA or INACDUTRA. A May 2019 VA examination report notes that the examiner stated that as far as the Veteran's glaucoma condition was concerned, this was an ophthalmological condition question that must be answered by an ophthalmologist and that any answer to this specific question could not be answered without resorting to speculation. A supplemental opinion was provided by another VA examiner in June 2019. The examiner found that there was never any diagnosis or treatment of glaucoma while in service. It was noted that the diagnosis was made in 2010 and progressed over the last five years. The examiner noted review of the private treatment record in 2011 and the VA examination in 2013 and found that the private records made no statement of glaucoma suspect. Additionally, it was noted that the private doctor most likely did not have access to the service treatment records from the 1980s to opine on the possibility of glaucoma suspect during that era. The examiner found that there was no documentation of a diagnosis of glaucoma or glaucoma suspect based on the appearance of the normal optic nerves, intraocular pressure, or eye injury causative of glaucoma during military service. As for the glaucoma, the examiner determined that it was age-related as it was not diagnosed until 2010. The examiner noted that the Veteran left the military in 1985 so there was clearly no service connection. The medical opinion provided in June 2019 as to the etiology of the Veteran's glaucoma has high probative value, as it is factually accurate, fully articulated, and there is sound reasoning of the conclusion given. See Nieves-Rodriguez, at 302-04. In weighing the June 2019 opinion with the August 2011 private medical statement, the Board assigns a higher probative value to the June 2019 opinion, as it was based on a complete review of the Veteran's medical history and contains a definitive, nonspeculative opinion. On the other hand, the August 2011 private medical statement is more speculative as the treatment provider stated that the Veteran appeared to have optic nerve heads suspicious for glaucoma in the 1980s, though it was difficult to discern whether the Veteran was truly suffering from glaucoma at that time due to the limited technology available at that time. The treatment provider further noted that the medical records suggested he was glaucoma suspect at a minimum. In weighing the evidence of record, the preponderance of the evidence shows that the Veteran's glaucoma and vision loss are not related to his military service. Finally, addressing the issue of service connection for glaucoma secondary to a service-connected disability, during the appeal, the Veteran was granted service connection for a psychiatric disorder and hypertension. See 38 C.F.R. § 3.310. Thus, the Board remanded the claim for VA examinations regarding whether the Veteran's service-connected psychiatric disorder and/or hypertension caused or aggravated the Veteran's glaucoma and vision loss. VA treatment records reflect that the Veteran was noncompliant with his medications for his high blood pressure and glaucoma. In June 2013 a VA treatment provider opined that the Veteran's mood disorder was interfering with his ability to take medications. The treatment provider noted that the Veteran had elevated blood pressure and had not taken his blood pressure (BP) medication that day. In March 2017, a VA treatment provider noted that the Veteran's right eye (OD) had unreliable optical coherence tomography (OCT) over time, due to the Veteran's refill history. See also November 2013, December 2013, March 2017, and June 2017 VA treatment records. In May 2017, a VA treatment provider noted that the Veteran had uncontrolled blood pressure and uncontrolled diabetes, which were the likely cause of the Veteran's recurrent transient ischemic attack (TIA) and cerebrovascular accident (CVA). In October 2015, a VA examiner opined that there may have been some contribution to the Veteran's eye condition from the 2011 CVAs. See September 2011 and October 2011 private treatment records. In March 2016, a VA treatment provider noted that the Veteran had multiple strokes recently and opined that the Veteran's glaucoma did not stand alone with his vision loss. In February 2020, a VA examiner opined that the Veteran's glaucoma and vision loss were less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. However, the examiner who provided the opinion was the same examiner who, in May 2019, had determined that the question of whether the Veteran's glaucoma was related to service needed to be answered by an ophthalmologist; and any answer to this specific eye condition, could not be answered, without resorting to speculation. The Board notes that VA examinations indicate that the VA examiner is a physician assistant-certified (PA-C) and a Master of Physician Assistant Studies (MPAS). The examiner did not provide any explanation as how they were now qualified to provide an opinion regarding the nature and etiology of the Veteran's glaucoma and vision loss, which renders the February 2020 opinion inadequate. Thus, the case was remanded again by the Board in December 2020 to determine whether the Veteran's glaucoma and vision loss were caused or aggravated by his service-connected psychiatric disability and/ or hypertension. A VA medical opinion was provided in January 2021, which found that the Veteran's eye disorder was less likely than not proximately due to or the result of the Veteran's service-connected condition. The rationale was that the Veteran's visual loss was secondary to glaucoma. The Veteran had an optic neuropathy, which was glaucomatous in nature and etiology. The Veteran had high intraocular pressure in both eyes necessitating surgery in both eyes. He also had visual field loss including central visual loss. The examiner found that these were features of the glaucoma diagnosis. The examiner found that there was no service relationship or connection to the Veteran's glaucoma. The examiner also found that the Veteran's psychiatric conditions and uncontrolled hypertension did not influence the progression of glaucoma. Again, it was noted that the Veteran's glaucoma caused his visual loss and visual field loss. The Veteran was noted as having severe visual loss from glaucoma in 2011, when his visual acuity went down to the level of legal blindness. His uncontrolled hypertension from his noncompliance with medication were noted in 2013 and later. The examiner noted that the Veteran had glaucoma, which was not a disease that was affected by psychiatric illness. There was no evidence that glaucoma was caused or worsened or aggravated by psychiatric illness. It only responded to the lowering of intraocular pressure. The Veteran's psychiatric illness did not make his glaucoma worse. The glaucoma was not caused by his service and glaucoma was not noted until decades after his service. There was no trauma to the eyes. The Veteran was noted to have good vision, 20/25 in both eyes in 2010. The Veteran was legally blind as of 2011. This was before the Veteran's known history of medication noncompliance, which was noted on examinations in 2013, 2015, and 2017. The examiner determined that the Veteran's psychiatric condition and high blood pressure did not worsen the glaucoma. It was noted that the Veteran's progression was entirely due to his glaucoma. His hereditary optic atrophy was stable and not progressive. The examiner further found that psychiatric conditions and uncontrolled hypertension did not influence the progression of glaucoma. The medical opinion provided in January 2021 as to the etiology of the Veteran's glaucoma has high probative value, as it is factually accurate, fully articulated, and there is sound reasoning of the conclusion given. See Nieves-Rodriguez, at 302-04. The Veteran's representative argued in a March 2021 brief that the ophthalmologist in January 2021 did not state whether the Veteran's hypertension and noncompliance with hypertension medication aggravated his glaucoma and vision loss. Review of the medical opinion provided shows that this is not accurate. While the January 2021 VA examiner did not specifically use the word, "aggravate," the examiner noted that the hypertension did not worsen the glaucoma; and that the uncontrolled hypertension did not influence the progression of the glaucoma. These statements sufficiently address whether the hypertension, including noncompliance with medication management of hypertension leading to uncontrolled hypertension, aggravated the glaucoma. The medical evidence shows that it did not. After weighing and balancing the evidence of record, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran's defective vision and any congenital disorders of the eye were aggravated or incurred during his service. See 38 U.S.C.A. § 1153. In addition, the preponderance of the evidence is against finding that the Veteran's glaucoma and vision loss were incurred in service or caused or aggravated by his service-connected psychiatric disability or hypertension. Accordingly, the Board finds that the criteria for service connection for glaucoma and vision loss are not met and the Veteran's claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107 (b). However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.