Citation Nr: 21040764 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 08-00 055A DATE: July 6, 2021 ORDER Entitlement to service connection for eye disorder, to include bilateral glaucoma and cataracts, to include as secondary to and/or aggravated by any service-connected disability(s) and/or medication(s) prescribed for any service-connected disability(s), is denied. FINDING OF FACT The objective medical evidence shows the current non-congenital disorders of bilateral glaucoma and cataracts were not incurred in active service, they are not directly caused by an event, injury or illness during active service and they are not proximately due to, the result of or made worse beyond their natural progressions by any service-connected disability(s) and/or prescribed medication(s) for any service-connected disability(s). CONCLUSION OF LAW The criteria for service connection for eye disorder, to include bilateral glaucoma and cataracts, to include as secondary to and/or aggravated by any service-connected disability(s) and/or medication(s) prescribed for any service-connected disability(s), have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1971 to April 1972, during which he was deployed to the Republic of Vietnam. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active service or that a preexisting injury or disease was aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2019). Establishing service connection generally requires: (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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, service connection may be granted on a secondary basis for a disability which is proximately due to, the result of or made worse beyond its natural progression by a service-connected disease or injury. 38 C.F.R. § 3.310. Moreover, service connection of a nonserviceconnected disease or injury will be established if an increase in severity of the nonserviceconnected disability is shown to be proximately due to or the result of a service-connected disease or injury and not due to the natural progress of the nonserviceconnected disease or injury. 38 C.F.R. § 3.310 (b). The evidence must show (1) a current disability exists and (2) the current disability was the (a) proximately caused by or (b) proximately aggravated (worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Entitlement to service connection for eye disorder, to include bilateral glaucoma and cataracts, to include as secondary to and/or aggravated by any service-connected disability(s) and/or medication(s) prescribed for any service-connected disability(s). At the outset, the Board notes that congenital and developmental defects, such as a refractive error of the eyes are not diseases or injuries within the meaning of applicable legislation and, thus, are not disabilities for which service connection may be granted. 38 C.F.R. § 3.303 (c); see also 38 C.F.R. § 4.9; Beno v. Principi, 3 Vet. App. 439 (1992). The Veteran's STRs include his January 1971 pre-induction examination, which reflects that he reported that he wore glasses or contact lenses. It also shows the Veteran entered on active duty with bilateral refractive error in distant vision of 20/400. He was assigned a physical profile a "2" for his eyes, indicating that the Veteran possesses some medical condition or physical defect that may require some activity limitations. See United States Army Regulations (AR) 40-501. The Veteran's April 1972 separation examination shows his vision was 20/400 bilaterally. His physical profile remained a "2" for his eyes. There is no record of any other complaints, diagnosis or treatment related to the eyes during active service other than routine examinations, which reveal no pertinent findings. The post-active-service record shows, in September 1996, the Veteran was assessed with glaucoma, "ntg [normal-tension glaucoma], OU [oculus uterque, i.e., both eyes]. Low-tension glaucoma was diagnosed in August 2002 and "incipient cataracts" appears in the record since 2006. An optometry clinic examination in 2004 found bilateral low-tension glaucoma. A similar examination in September 2006 shows the same glaucoma findings, but with stable intraocular pressure, as well as findings of bilateral refractive error and bilateral incipient cataracts. January 2001 through April 2021 VA treatment records show the Veteran continued to have low-tension glaucoma, unspecified type, "suspicious for left-eye regression," medications were prescribed, but throughout the period the treatment providers noted the disorder was stable, also "well-controlled." Records between November 2001 and December 2010 describe the Veteran's cataracts as mild and "not visually significant." January 2021 private ophthalmological treatment records show an assessment of glaucoma, nuclear cataracts were noted as shown in both eyes, but the treatment provider further noted the Veteran is "functioning well" and stated "[n]o treatment currently recommended." In an August 2013 VA examination for eye conditions, the diagnosis was bilateral glaucoma, nuclear cataracts and ptosis of the eyelid. The examiner opined the claimed vision disorder was less likely than not caused by service-connected psychiatric treatment. He explained that the above-diagnosed disorders are not related to service or a service-connected disability. He opined in pertinent part that the examination showed the presence of open-angled glaucoma in both eyes, as well as mild nuclear cataracts and best corrected vision was 20/25 in either eye. The post-active-service record shows a normal-tension glaucoma in September 2006 with 20/20 bilateral eye vision. He noted that some psychiatric medications can have risk for angle-closure glaucoma in an at-risk patient for this kind of glaucoma and examination of the Veteran's eyes does not indicate this risk. However, he added that the Veteran's mild cataracts are age-related, noting the cause of normal-tension glaucoma is still unknown. He further noted ptosis does not cause a decrease in visual acuity or other impairment. The August 2013 VA examiner further opined negatively for secondary causation and aggravation of the Veteran's by active service and stated as a rationale for both opinions the above points concerning the type of glaucoma the Veteran has and his cataracts being unrelated. Although the examiner's intent is clear overall from these opinions, unfortunately, in the aggravation opinion, the examiner used the word "caused" rather than specifically stating whether the disorder was made worse beyond its natural progression by service-connected disabilities. Upon appeal to the United States Court of Appeals for Veterans Claims (the Court), the Court's December 2014 memorandum decision directed the Board to obtain an opinion addressing aggravation using the correct evidentiary standard. In the December 2015 VA examination for eye conditions, the examiner opined it was less likely as not that any identified acquired eye disorder had its onset during active service or otherwise originated during active service based on a thorough review of the record and peer reviewed medical literature. He explained that the Veteran's service-connected disabilities and prescribed medications did not cause the current eye conditions, because there were no reported medications or clinical findings that would suggest the current ocular conditions were related to anything other than being a current normal and expected ocular change finding. The examiner provided the same rationale regarding the issue of whether the Veteran's eye conditions were aggravated beyond their natural progression by his service-connected disabilities. However, when appealed to the Court again, the March 2017 Joint Motion for Remand (JMR), agreed to and submitted by the parties, stated the opinion was inadequate because the examiner did not identify all the Veteran's service-connected disabilities or medications prescribed as treatment and the rationale for why the eye conditions were not caused or aggravated by service-connected disabilities was non-specific. The parties further agreed that the examiner used the wrong evidentiary standard, in this instance, the parties to the JMR identifying a deficiency of language and terminology, noting the examiner stated "[i]t is less likely as not (probability of 50 percent or less[])," whereas the proper inquiry is whether "it is at least as likely as not (50 percent or greater probability)." The Board accordingly remanded the claim again in May 2017 for another VA examination. In a September 2017 VA examination, the examiner diagnosed bilateral cataracts, bilateral glaucoma and bilateral age-related ptosis. The examiner opined that it was less likely than not that these disorders had their onset during active service or otherwise originated during active service. The examiner stated, "His eye conditions are hereditary and/or age related. There is no evidence in the STRs of any eye complaints or disorders." It was also opined that it was "less likely than not that any of the identified acquired eye disorders is related to the veteran's bipolar disorder and other service-connected disabilities which include bilateral hearing loss and tinnitus and/or the medications prescribed to treat the service connected disabilities." The examiner explained in his rationale that "[t]here is no medical evidence to support a causal relationship between the veteran's acquired eye disorders and his service connected bipolar disorder, hearing loss and tinnitus. Similarly, there is no medical evidence to a support a causal relationship between the medications used to treat the Veteran's service connected conditions, which include Lithium Carbonate, Melatonin, Risperdal and Diphenhydramine, and his acquired eye disorders." He further opined that it was less likely than not that any of the Veteran's acquired eye disorders increased in severity beyond their natural progression due to service-connected bipolar disorder and other service-connected disabilities of hearing loss and tinnitus and/or the medications prescribed to treat those service connected disabilities. The examiner stated, "There is no medical evidence to support the contention that the veteran's acquired eye disorders increased in severity beyond their natural progression due to his service connected bipolar disorder, hearing loss and tinnitus. Similarly, there is no medical evidence to suggest that the medications used to treat the Veteran's service connected conditions, which include Lithium Carbonate, Melatonin, Risperdal and Diphenhydramine, caused the veteran's acquired eye disorders [to] increase[] in severity beyond their natural progression." However, following this last set of opinions, the Board in May 2018 requested a medical expert/specialist opinion, in which the Board noted the September 2017 examiner's application of the incorrect evidentiary standard in using the language, "less likely" rather than "whether it is at least as likely as not (50 percent or greater probability)." The Board requested 3 opinions for direct service connection, service connection as secondary to the Veteran's bipolar disorder or other service-connected disabilities, to include their medications, and service connection based on worsening of the eye disorder beyond its natural progression (aggravation), due to bipolar disorders and other service-connected disabilities and their medications. An ophthalmological specialist rendered 3 opinions in June 2018, in which she first opined regarding direct service connection that "[i]t is not at least as likely as not that the identified acquired eye disorders (bilateral cataracts, bilateral glaucoma, and bilateral age-related ptosis) were incurred in or caused by the claimed in-service injury, event or illness." She explained in her rationale that the Veteran's eye disorders are hereditary and/or age-related, there is no evidence in the STRs of any eye complaints or disorders and all the Veteran's eye disorder[s] were diagnosed more than 20 years after service. She next opined on secondary service connection it is not as likely as not that any of the eye disorders is related to bipolar disorder, to any of the other service-connected disabilities or to their medications. She explained there is no medical evidence to support a causal relationship between the eye disorders and the service-connected disorders, nor is there ir evidence of a causal relationship due to their medications, to include lithium carbonate, melatonin, Risperdal, and diphenhydramine. She further opined it is not as likely as not that the eye disorder was increased in severity beyond their natural progression due to the service-connected disabilities or their medications, as there is no medical evidence to support this, restating the above rationale. However, the Board in its January 2019 Remand did not address the specialist's June 2018 opinions. It is not clear from the record why, but the Board notes that both the May request for a specialist's opinions and the June 2018 opinions set forth above were not associated with the claims file until the third week in September 2018, perhaps indicating they in fact might have been associated with the file even later and were not reviewed for the January 2019 Remand. In any case, the January 2019 Remand noted that, in his repeated use of the phrase, "it is less likely than not," the September 2017 VA examiner employed the very same language which was the subject of the parties to the March 2017 JMR accompanying the Court's Remand to the Board, wherein the parties agreed vacatur was necessary for the December 2015 VA examiner's inadequate adherence to the standard of language required. The Board added that, although under Stegall v. West, 11 Vet. App. 268 (1998), there need be only "substantial compliance" with remand instructions, the Board found "because the March 2017 JMR specifically highlighted the lack of standard language used by the VA examiner as the basis for vacating the previous Board decision, the new September 2017 VA opinion necessitated specific adherence to the standard language outlined in the remand request, and that language did not so comply. Stegall at 271 (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47(1999) (holding that substantial, rather than strict, compliance with remand directives is required)." The Board remanded for another examination. In a December 2019 VA examination for eye conditions, the examiner diagnosed bilateral nuclear sclerotic cataract, bilateral dermatochalasis of the upper eyelids and bilateral glaucoma. She added there is right-eye vitreous degeneration. After extensive testing, she opined any eye disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. She explained in her rationale that "[c]cataracts were not indicative of trauma-induced cataracts in either eye. Ptosis (lid droop appears to be dermatochalasis rather than ptosis) was not related since the droop was symmetrical and appeared more age related rather than asymmetrical/trauma related. Vision is only decreased in right eye and is not related to glaucoma but rather is related to his age-related cataracts. Glaucoma - since there was no evidence of trauma related retinal scarring and no trauma induced cataracts, it is highly unlikely that veteran has trauma induced glaucoma." For secondary service connection, she opined that an eye disorder is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition. She explained that "[h]is bipolar disorder with medication, bilateral hearing loss with medication, and tinnitus with medication has no relationship to his cataracts, glaucoma, vision, or dermatochalasis." She lastly opined that an eye disorder, "which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." She explained that the Veteran's "bipolar disorder with medication, bilateral hearing loss with medication, and tinnitus with medication did not aggravate his cataracts, glaucoma, vision, or ptosis because there is no relationship to aggravate these conditions." In addressing the conflicting medical evidence of the Veteran's claim that "he had a peripheral vision problem that was not within the standards of enlistment but he continued to serve with a defect that never got treated nor got better," the December 2019 examiner stated, "After reviewing records, there is no evidence of eye records prior to entry into active service which was in 1971. Therefore, I am unable to verify if the peripheral vision problem was present prior to active service. However, in November 2020, the Board again remanded the claim for new opinions. The Board first noted that the December 2019 examiner in her rationale in support of her opinion for aggravation utilized the wrong standard, as it was given for secondary service connection. The examiner did not provide a rationale that addressed whether the Veteran's eye disorder was specifically aggravated beyond natural progression due to his service. Second, the examiner did not address the refractive error noted on the Veteran's entry examination. The Board acknowledged that for purposes of entitlement to VA benefits, the law provides that refractive errors of the eyes are treated like congenital or developmental defects and not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9; 38 U.S.C. § 1110. However, in noting that 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, the Board Lastly, the Board requested the examiner to state specifically "whether it is at least as likely as not (probability of 50 percent or more)" that any eye disorder is related to the Veteran's service. However, the examiner only opined that, "it is less likely than not." The Board concluded that. for the sake of clarity and to ensure compliance with the Court's March 2017 Order, based on its accompanying JMR, "it is necessary for the examiner to provide a new opinion which specifically states and uses the standard of "whether it is at least as likely as not." The VA examination for eye conditions following in April 2021 states a 2013 diagnosis of "glaucoma" and the examiner's diagnosis that day of "cataract," adding that each diagnosis affects both eyes. He noted the Veteran has claimed no ocular injuries while serving in the Army, but reported he experienced "a blast injury to the right side of his head." After extensive testing, the examiner opined that an eye disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. In his rationale, he explained that "[t]he injury occurred in 1971 with no treatment. The glaucoma and cataract developed beginning in 2013 and 2021." Therefore, glaucoma and cataract are not related to service and, "[a]s per the IMO question [independent medical opinion question], "a pre-existing eye disability was not present. Medical nexus can[]not be established. Therefore LESS LIKELY THAN NOT." He next opined regarding aggravation, stating an eye disorder, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness. He explained by stating, as above, the date of the reported injury and the dates of the development of glaucoma and cataracts, concluding they "were not likely due to the injury occurred while in military service." He added, as above, "[a]s per the IMO question, a pre-existing eye disability was not present and was NOT aggravated beyond natural progression during service." In regard to the question of whether a disorder was superimposed on his eye defect, the examiner stated he reviewed the conflicting medical evidence and stated once again the Veteran did not claim and eye disorder as a result of the reported 1971 injury. The examiner again noted glaucoma and cataracts developed much later and were not related to the previous injury. "As per the IMO question, a pre-existing eye disability was not present and current bilateral eye disability was superimposed on his eye defect as result of an injury or disease in service. Medical nexus can[] not be established. Therefore LESS LIKELY THAN NOT." The Board has carefully considered the Veteran's many lay statements appearing in the record from April 2005 through May 2021, as well as his reports to and examiners and treatment providers, as they appear throughout the record. The Board is well aware that lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. Nonetheless, his lay evidence in turn must be weighed against other evidence, as all relevant evidence of varying kinds must be considered. The Veteran's essential and consistent contention in his statements and reports is, while deployed to the Republic of Vietnam and posted to Cam Ranh Bay, in August 1971, after saboteurs detonated an explosion in a nearby ammunition dump and when running precipitately away to find shelter from the subsequent explosions of United States Army artillery ordinance, the Veteran was accidentally pushed from behind by another fleeing soldier, propelling the Veteran forward uncontrollably and causing him to strike the left side of his face and head against a support beam or column of his barrack, with the Veteran eventually finding cover in a "concrete pipe bunker," exterior but adjacent to the barrack. He further contends this impact to his head and face caused his subsequent eye disorders. However, the several VA examiners have noted the STRs show the Veteran did not present to medical personnel with complaints of such an injury and he received no relevant treatment. Moreover, as noted by the April 2021 examiner, his claimed injury was in 1971. In its own review of the record, the Board notes again the earliest diagnosis of normal-tension glaucoma in both eyes was in September 1996, approximately 25 years later, low-tension glaucoma was diagnosed in August 2002 and incipient cataracts appear in the record only since 2006. Additionally, the overall consensus of all examiners is the eye disorders are unrelated to anything else, to include secondary causation or worsening symptoms due to aggravation. For example, the December 2015 VA examiner found there are no clinical findings that would suggest the current ocular conditions were related to anything other than being "a current normal and expected ocular change finding." Both the September 2017 examiner and the June 2018 specialist in their opinions, after first noting there is no evidence in the STRs of any eye complaints or disorders, concluded the Veteran's eye disorders "are hereditary and/or age related." The latter opinion added the Veteran's eye disorders were diagnosed more than 20 years after service. The conclusions were the same for secondary causation and aggravation from medications for service-connected disabilities. The December 2019 examiner concluded since there was no evidence of trauma-related retinal scarring and no trauma-induced cataracts and, therefore, it is not likely that the claimed 1971 injury induced glaucoma. The Board therefore assigns more probative weight to the findings of the several VA examiners, as they are medical professionals, almost all of whom conducted in-person examinations of the Veteran, all examiners thoroughly reviewed the Veteran's medical history, and their opinions indicate adequate and sound conclusions for VA rating purposes. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). Irrespective of a series of missteps in the use of terminology and choice of specific wording, the numerous VA examination opinions nonetheless are unvarying in the consistency of their conclusionsthere is no clinical evidence which reveals any causative relation to the Veteran's eye disorder other than genetic disposition and the inexorable processes of aging. For these reasons and based on the objective medical evidence, the Board finds the preponderance of the evidence is wholly and decidedly against the claim for service connection, to include as secondary to or aggravated by any supervening effects of service-connected disabilities or their medications. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.