Citation Nr: 21041187 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 03-27 185 DATE: July 8, 2021 ORDER Entitlement to service connection for open-angle glaucoma is denied. FINDINGS OF FACT 1. Open-angle glaucoma was not incurred or aggravated in the line of duty during the appellant's first period of active duty for training (ACDUTRA). 2. Open-angle glaucoma pre-existed the appellant's second period of ACDUTRA and was not permanently worsened beyond its natural progress therein. CONCLUSION OF LAW The criteria to establish service connection for open-angle glaucoma during a period of ACDUTRA are not met. 38 U.S.C. §§ 101(2), (24), 1110, 1131, 1153 (2012); 38 C.F.R. §§ 3.6(c), 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant served in the Army Reserve from April 1978 to April 1990. He had no full-time active duty service, but had periods of active duty for training (ACDUTRA) from May to October 1978 and August 6 to August 27, 1988. In October 1989, the appellant filed his original claim for compensation for open-angle glaucoma. In a July 1990 rating decision, the RO denied the appellant's claim. After the appellant timely appealed the decision, and in an August 1991 decision, the Board denied the claim. In an October 1991 rating decision, the RO reopened and denied the claim for glaucoma, and in an April 2003 rating decision, denied reopening the claim. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the April 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2005, the Board reopened and remanded the claim for further development. The Board remanded the claim again in April 2007, September 2013, November 2014 and May 2015. In a December 2017 decision, the Board denied entitlement to service connection for glaucoma. The appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and by an October 2018 Order, the Court granted a Joint Motion for Remand (JMR) that vacated and remanded the Board's decision. In August 2019, the Board remanded the service connection claim to attempt to obtain medical records from the Wade Park Unit of the Cleveland VAMC per the JMR. Records obtained dated only back to 2003, and a response printed January 2020 indicates no additional paper records are on file. The Veteran was informed of the unavailability of the requested records in a January 2020 letter. The Board finds that additional efforts to obtain any additional Wade Park records would be futile. The Board finds that there has been substantial compliance with the August 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Thereafter, in December 2020, the Board remanded the claim to obtain an addendum medical opinion and it has since returned to the Board for further appellate consideration. Attempts were also made to obtain medical records from Surgical Medical Center for Dr. Lamping, and UH Hospital for Dr. Barney (sp), per the appellant's correspondence received in January 2021. Responses indicate Dr. Lamping's records were destroyed after a seven-year retention period and no response was received after multiple requests for Dr. Barney's records. See VA 21-0820 Reports of General Information, dated January 28, 2021 and February 27, 2021. However, the Board notes that medical records from Dr. Lamping dating back to 1990 have already been associated with the appeal from Mt. Sinai Medical Center and considered. See Medical Treatment Record Non-Government Facility, dated February 31, 1990; Third Party Correspondence, dated in February 23, 1990; and Third Party Correspondence, dated March 7, 1990. There are many duplicate copies of these records. Moreover, records from University Ophthalmologists, University Hospitals of Cleveland, indicate that Dr. Burney is a specialist in glaucoma, and those records have already been associated with the appeal. See Third Party Correspondence, dated February 14, 2005. Applicable Laws and Regulations The appellant contends that he lost his eyesight while serving in the Army Reserve for 12 years. See April 2004 and September 2005 Correspondence. Specifically, he asserts that: (i) glaucoma developed during his first period of ACDUTRA after training in the gas chamber during boot camp; (ii) had its onset when initially diagnosed in August 1988 during his second period of ACDUTRA; or (iii) was aggravated beyond its natural progression during that second ACDUTRA period. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "Active military service" includes periods of ACDUTRA in which a service member was disabled or died from a disease or injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6. Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of pre-existing diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service, are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. § 1111, 1112 (2012); 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309 (2020). However, these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA who have not established "veteran" status, such as the appellant in this case. See Smith v. Shinseki, 24 Vet. App. 40, 47 (2010); Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period). In this case, the appellant's service consists only of ACDUTRA and has not yet established service connection for any condition. He does not have "veteran" status unless or until it is shown that he "was disabled . . . . from a disease or injury incurred or aggravated in line of duty" during his period of ACDUTRA. See 38 U.S.C. § 101(2), (24). If he is shown to be so disabled, such a period of ACDUTRA is then considered "active military service" and he would then be considered a "veteran" for that period of service and entitled to the presumptions noted above assuming he meets the other requirements for the presumptions. Simply put, the above presumptions do not apply in this case. Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. The appellant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a claimant the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107 (b)). The Board has reviewed all the evidence in the appellant's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background and Analysis Turning to the evidence, prior to April 1988, the appellant's service treatment records (STRs) do not indicate treatment for, or complaints of, any eye disorders. In November 1977, the appellant's visual acuity was 20/20. There were no reports of eye trouble relating to a gas chamber incident during boot camp. In an April 1988 Report of Medical History, the appellant reported he was in good health, but had "eye trouble." It was noted he experienced occasional blurry vision late in the day or evening. The accompanying Report of Medical Examination indicated uncorrected distant visual acuity was 20/30, bilaterally and near vision was 20/40, bilaterally. It was recommended that the appellant see a specialist for glasses. Following the April 1988 examination, the appellant was retained in the Reserve and sent to Germany for a three-week period of ACDUTRA beginning August 6, 1988 and ending August 27, 1988. According to a STR dated August 12, 1988, the appellant indicated he had experienced a visual disturbance, described as having a film over his eyes, for the previous 8 months, and a gradual decrease in vision over the past 3 months. He complained of haziness of vision, poor field of vision especially in the lateral right eye and blurriness of vision when around bright lights. Following subsequent testing, the appellant was diagnosed with glaucoma on August 16, 1988. In connection with his original October 1989 VA claim for service connection, the appellant underwent a special ophthalmological examination in April 1990. He stated he began to have blurred vision in approximately June 1988 and went to the Dispensary of the Army hospital in Hamburg, Germany, and after undergoing various tests, he was diagnosed with open-angle glaucoma. The examiner noted that after the appellant was informed he had glaucoma by an Army ophthalmologist and after his return from Germany, he was seen in January 1989 at the Wade Park VAMC where he was again placed on medication for glaucoma. As indicated above, the Board has attempted to secure any such records from Wade Park, but unfortunately, to no avail. In an undated statement, a private doctor, Dr. J.M., of Mount Sinai Medical Center, noted that the appellant had first been seen in his clinic in November 1988. Dr. J.M. recalled that, at that time, visual field evaluation revealed "extensive damage consistent with long term disease." The opinion did not note any in-service incident, to include the reported gas chamber training, or even discuss the appellant's period of ACDUTRA. In August 1991, the Board denied the claim finding that the appellant's glaucoma pre-existed his August 1988 period of ACDUTRA and did not increase in severity during that period. Following an April 2002 claim to reopen, the appellant testified at a hearing before the Board in September 2005. He related that he had no vision problems prior to entering the Army Reserve and that he first noticed vision problems in Europe in 1988. He related that his vision was cloudy and that following a visit to the hospital, he was diagnosed with open angle glaucoma. He also testified that he recalled being put in a gas chamber during boot camp in New Jersey that made his face and eyes swell and caused a burning sensation. He stated a belief that perhaps that was the cause of his glaucoma. He elaborated that he did not have any lasting eye symptoms at that time. Also, he testified that he was able to complete his ACDUTRA with his unit following a diagnosis of glaucoma in August 1988. He did indicate that he stopped having to do morning physical exercises given the severity of the glaucoma. He indicated his vision had been fine prior to leaving for Europe and when he came back it was "still fuzzy" in both eyes. In December 2005, the Board reopened the claim and remanded it to obtain the appellant's Social Security Administration (SSA) records and to schedule him for a VA examination with an ophthalmologist. SSA records were associated with the claims file in October 2006. In November 2006, the appellant underwent a VA examination with an optometrist. Upon review of the record, the examiner indicated it would appear the onset of the open angle glaucoma in both eyes was prior to August 1988. The examiner also opined that given that records available from Mount Sinai in November 1988 showed results consistent with the findings from the appellant's active duty records of August 1988, that the appellant's condition did not progress significantly during the August 6, 1988 to August 27, 1988 period. The examiner concluded that any minor progression that may have occurred would have been due to the normal progression of the appellant's glaucoma. In April 2007, the Board remanded the claim seeking compliance with the December 2005 remand directive, namely, an examination with an ophthalmologist rather than an optometrist. In November 2010, the appellant underwent a VA examination with an ophthalmologist. The examiner recognized the appellant's 12 years of service in the Army Reserve and that while in Germany in 1988, he had visual symptoms, was diagnosed with primary open-angle glaucoma in both eyes, was noted to have severely restricted fields of vision to less than 5 degrees in both the left and right eyes, and was started on topical glaucoma medications. Funduscopic examination at that time also revealed severe glaucomatous optic nerve cupping consistent with his documented visual field loss. It was noted he was an only child of West African heritage and had 9 half-siblings between his parents. He had no knowledge of anyone in his extended family having a history of glaucoma. The examiner indicated that it was now known that patients of African heritage have as much as a four-fold increased incidence of primary open-angle glaucoma compared to Caucasians. The examiner stated that the crucial question was not whether the appellant's glaucoma progressed during the period of August 6, 1988 to August 27, 1988, but rather why glaucoma was not diagnosed prior to August 1988. The examiner explained that it is well-established that primary open-angle glaucoma is a disease that causes visual loss over a period of years and decades rather than days, weeks, or months. Therefore, the examiner opined with almost absolute certainty that the appellant had undiagnosed glaucoma during most, if not all, of his military service and that his glaucoma optic nerve damage progressed during that unknown period of time, prior to August 1988. In a January 2011 statement, the appellant again contended that his eyes swelled up and his skin was irritated when placed in a gas chamber during basic training in 1978. He repeated that no examinations prior to his period of ACDUTRA indicated signs of glaucoma. In January 2013, the Board sought an advisory VHA medical opinion from an ophthalmologist. The Board outlined the appellant's contentions, to include that he developed glaucoma during basic training in 1978 as a result of his training in a gas chamber or, in the alternative, that the disability had its onset during a period of ACDUTRA, or that it had existed prior to ACDUTRA, but was aggravated beyond the normal progress of the disease during that period. The eye specialist was asked to opine whether it was at least as likely as not that any current eye disability had its onset during the appellant's period of active service in 1978. The specialist was specifically asked to comment on the appellant's theory that his glaucoma was due to his training in a gas chamber. If that initial question was answered in the negative, the specialist was asked to opine whether any identified eye disability, in particular glaucoma, had its onset during the appellant's period of ACDUTRA in August 1988. If such question was answered in the negative, the specialist was asked to opine whether it is at least as likely not that the appellant's glaucoma was aggravated beyond the natural progress of the disease during his August 1988 period of ACDUTRA. In April 2013, an eye specialist, a VA ophthalmologist, opined that although it is possible that the onset of the patient's glaucoma could have been in 1978 during service, it is not any more likely (and therefore far less than 50 percent likely) to have begun at that time versus prior to, or after, service time in 1978. He stated further that "[e]xposure to gas chamber is not known to cause open angle glaucoma." The ophthalmologist acknowledged that there are forms of chemical-induced glaucoma, but stated that those forms typically would involve direct injury to the eyes and immediate complications that follow. The ophthalmologist also opined that the appellant's glaucoma was not likely to have progressed in the 3 weeks of service in August 1988, when it was "ultimately recognized." He stated that it was much more likely that the appellant's symptoms simply became apparent at that time. Moreover, with regard to the examinations in 1988, the ophthalmologist stated there were no findings of secondary glaucoma that could classify the appellant's glaucoma as traumatic or findings suggestive of an exacerbation from extreme exercise, which one might see in pigmentary glaucoma; noting that subsequent examination notes supported that assessment. The ophthalmologist added that, as is the case with many glaucoma patients, the condition can be quite advanced before detection. He stated that most basic physical examinations did not contain enough detail to suggest that the lack of a glaucoma diagnosis on physical examination prior to 1988 meant that glaucoma must have occurred at that time. He concluded by saying open-angle glaucoma typically takes months to years, rather than days, to progress. In April 2013, the appellant submitted an internet article that stated that open-angle glaucoma is the leading cause of blindness among adults in the United States and is particularly dangerous because it can progress gradually and go unnoticed for years. It was also noted that African Americans were at higher risk along with those over the age of 50 with a family history. In November 2013, the appellant underwent a subsequent eye examination for a separately claimed left eye disability. The appellant again reported the diagnosis of bilateral glaucoma in 1988 while stationed in Germany. The examiner noted that the August 1988 records stated that his peripheral vision was already restricted to less than five degrees in each eye, which met the criteria for legal blindness status at that time. Subsequent to the most recent remand, the appellant underwent a VA examination with an ophthalmologist in March 2021. The examiner opined that it was less likely than not (less than 50 percent probability) that the appellant's glaucoma was incurred in or caused by service. The examiner reasoned that there are no records to prove when the condition actually began, and the appellant was not formally diagnosed with open-angle glaucoma until 1988. He stated that the appellant "obviously had open angle glaucoma much earlier than that when it was diagnosed due to it being diagnosed at a late state, but the timeline is not able to be discerned due to lack of eye records/exams prior to 1988 that would uncover such a trauma." As there are no records supporting that glaucoma was claimed, diagnosed, or treated while in service, there is no evidence of aggravation beyond natural progression in service. The examiner stated further that the appellant is diagnosed with other eye disorders (i.e., anophthalmos of the right eye, macular ischemia, and age-related nuclear cataract in the left eye), which were not claimed, treated, or diagnosed while the appellant was in service, thus it is less likely than not that the increased manifestations of the appellant's glaucoma were aggravated beyond natural progression by an in-service injury, event or illness. The examiner explained that the appellant's anophthalmos was due to trauma; the cataract was due to age and prior glaucoma procedures, and macular ischemia was likely due to the branch retinal vein occlusion he had in the past. Upon review, the Board finds that the most probative evidence of record is against a finding that glaucoma was incurred in or worsened beyond its natural progression by either of his periods of ACDUTRA service from May to October 1978 or from August 6 to August 27, 1988. Therefore, service connection must be denied. Here, numerous medical professionals have opined that the appellant's glaucoma was already severe when it was detected in August 1988 and that glaucoma is a condition that develops slowly and can go undetected for long periods. When diagnosed in 1988, the appellant's peripheral vision already met the standard of legal blindness, and such a severity in 1988 also suggests that the condition had been present for a long time. Moreover, there is no evidence during the 1988 period of ACDUTRA that shows or even suggests that an in-service injury increased the severity of the glaucoma beyond its natural progression. Indeed, the medical opinions dated in November 2006, September 2009, and December 2010 affirmed that the appellant's records during and after his three-week period of ACDUTRA in August 1988 showed similar results, which demonstrates a lack of increase in severity of the condition during that 3-week period beyond natural progression of the disease. Further, the April 2013 eye specialist opined that the appellant's glaucoma was unlikely to have been incurred during boot camp in the gas chamber as the appellant did not have any immediate complications and examination did not show evidence of eye trauma. Finally, the March 2021 ophthalmologist opined that there was no aggravation of glaucoma beyond natural progression during the appellant's ACDUTRA from May to October 1978 as there are no records supporting treatment or diagnosis of glaucoma at that time. The ophthalmologist also opined that there was no aggravation beyond natural progression based on increased manifestations of his glaucoma in August 1988 as the appellant's other eye disorders were not claimed, diagnosed or treated while he was in service. The Board finds these opinions to be highly probative as they were based on review of the record, examination of the appellant and are supported by adequate and probative rationale. Notably, the record does not contain any opinions in support of this claim. Even the medical notes provided by the appellant's private physician in 1988 indicate severe glaucoma at that time, and a notation that the damage was consistent with long-term disease. While no medical professionals are able to date the exact onset of the appellant's glaucoma due to lack of records or undetected glaucoma symptoms, there are no records indicating or even suggesting that it could have begun during his first period of ACDUTRA service in 1978; the appellant's vision was normal at that time with no complaints of visual disturbances. The first report of visual disturbances is not shown in the record until the appellant was actually diagnosed with glaucoma in 1988, and at that time, he complained that he had been experiencing a film over his eyes for the previous eight months and blurry vision for the past three months. This time period in 1988 is nearly a decade past his first period of ACDUTRA and several months prior to his second period of ACDUTRA. Thus, even the appellant's own lay assertions suggest that the onset of glaucoma was later than 1978. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although a layperson can provide evidence as to some questions of etiology or diagnosis, the question of a medical relationship between open-angle glaucoma and service, which would require more than direct observation to resolve, is not in the category of questions that lend themselves to resolution by lay observation. Jandreau, 492 F.3d at 1376-77. The appellant in this case is not competent to opine on the question of etiology of his eye condition. Therefore, his statements asserting a relationship between glaucoma and a period of ACDUTRA do not constitute competent evidence in support of his claim. Moreover, the appellant's statements suggesting an initial onset of glaucoma symptoms during a period of ACDUTRA lack credibility because his statements on this matter are inconsistent. When seeking treatment contemporaneous to the first detection of glaucoma in 1988 the appellant specifically dated the onset of symptomatology to a few months prior to his period of ACDUTRA in 1988. Yet, he now suggests that symptoms first presented during ACDUTRA. Given the fact that his statements in 1988 were contemporaneous to service, and that his statements were made in furtherance of medical treatment (rather than in connection with a claim for compensation), his 1988 statements are found to be more probative. Regarding internet articles, the Court has held that "generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive." Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). Medical treatise evidence may indicate enough of a basis of a generic relationship to establish "a plausible causality based on objective facts." Mattern, 12 Vet. App. at 228 (citing Wallin v. West, 11 Vet. App. 509, 514 (1998)). In the present case, the internet article submitted by the appellant is of little probative value as to the etiology of the appellant's glaucoma because it lacks a rationale for the supposition that his glaucoma is related to ACDUTRA. The general article submitted does not place the onset of this appellant's glaucoma during either of the ACDUTRA periods in question. The medical evidence of record on the question of a nexus outweighs the internet article as the VA examination reports and opinions are case-specific, and supported by adequate rationale based on the facts of this case. The Board acknowledges the severity of the appellant's eye difficulties and sympathizes with his appeal for the benefits sought, however, the Board is bound to follow the law in the system established by Congress for the administration of VA benefits and is without authority to grant benefits on the basis of equity. 38 U.S.C. § 7104 (2012); Harvey v. Brown, 6 Vet. App. 416 (1994). Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim; the benefit of the doubt doctrine is not for application; and the appeal must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Beach, 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.