Citation Nr: 22013336 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 09-46 466 DATE: March 9, 2022 ORDER Entitlement to service connection for a bilateral glaucoma is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the evidence of record supports finding that his bilateral glaucoma occurred in, or is the result of, his period of active duty service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for bilateral glaucoma are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1964 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. A Board hearing was conducted at the Board in Washington, D.C. A transcript of this hearing is contained within the electronic claims file. The Veteran argues that he began experiencing vision problems in service that eventually developed into his present-day glaucoma. During service, he endorsed bilateral blurred vision, a feeling of tunnel vision in his right eye, and loss of peripheral vision in his left eye. Jan. 7, 2016, Hr'g Tr. (Tr.) at 18. This claim most recently was remanded in a January 2020 Decision. There, the Board, pursuant to a previously granted Joint Motion for Remand (JMR), instructed the agency of original jurisdiction (AOJ) to secure an addendum medical opinion that addressed August 1965 in-service eye treatment and the use of steroid eye drops. In January 2022 the AOJ secured a new examination and medical opinion. The examiner diagnosed the Veteran with advanced glaucoma since 1967, cataracts since 2015, and blindness since 2018. In opining that the Veteran's glaucoma was unrelated to service, the examiner stated the following: Foreign body sensation in the eye is NOT a typical glaucoma symptom. Steroid drops did not harm nor hurt in this situation; drops did nothing for his condition at the time. Based on the history of his glaucoma, and the fact he was considered in an advanced stage of glaucoma in 1967, it is my professional feeling that he had glaucoma PRIOR to his military career and it was never diagnosed. When he began having symptoms and attempted to be seen in Germany, he was not examined properly for a diagnosis. Glaucoma is a disease that typically does not cause any pain or show obvious signs until it is in the advanced stages. During this process, central vision remains intact and that is why it is was not caught early. Even today entering recruits do not get screened for glaucoma. This examiner's opinion has altered the scope and analysis of the claim presently before the Board. It now must assess this claim under the lens for the presumption of soundness. For 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, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1110. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). "When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry." Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004) A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted; an indication of past disorder or disability by a veteran on a report of medical history is not enough to prevent the presumption of soundness from attaching. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)(1). If the Veteran is sound upon entry, the burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any 'increase in disability [was] due to the natural progress of the' preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner, 370 F. 3d at 1096 (citing 38 C.F.R. § 3.322). With respect to the aggravation prong, there is a wealth of caselaw regarding what does and does not constitute aggravation. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). The recurrence of pre-service symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1998). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. This standard does not require the evidence to be exactly equal; rather, it includes "scenarios where the evidence is not in equipoise but nevertheless is in approximate balance. Put differently, if the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt." Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1380 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Veteran's December 1963 enlistment examination noted normal eyes upon clinical evaluation. There are, however, complaints of blurred vision in the right eye due to what the Veteran described as a feeling of a "foreign body" in the right eye. He was provided steroid eye drops. Because no condition was noted upon entry into service he, therefore, is considered sound upon entry for any eye disability, and the burden shifts to VA to prove by clear and unmistakable evidence that his glaucoma both preexisted service and was not aggravated therein. Of record is an April 2017 private opinion by Dr. S.M. In pertinent part, he states that, at the time of separation, the Veteran had 20/20 vision in each eye, normal color vision, and normal intraocular pressure; however, the latter was not recorded. It is Dr. S.M.'s opinion that a diagnosis of glaucoma at the time of separation could have been missed and that normal visual acuity has "no bearing on [a] diagnosis of Glaucoma," as visual acuity usually is not affected until the disease has progressed to the end-stage. The same is true for colored vision. He went on to note that topical steroids "can and do create a rise in intra ocular pressure," and that "careful evaluation is mandatory while prescribing topical steroid drops." He further opines that it is more likely as not that the use of the steroid medication "cause[d] high intraocular pressure in this [Veteran]." In March 2018, the Board received as part of a prior remand a medical opinion from VA Dr. J.H. He stated the following: After reviewing the new documents, I am still not certain that [the Veteran] had glaucoma during his military service, the medical record does not indicate that he had glaucoma and there is no indication in the record that he indicated any complaint of visual field defect at that time. He was seen for an irritation of his right eye. Also at his separation exam performed on 12/29/65 his visual acuity was noted to be 20/20 in each eye and his intraocular pressure is documented to be normal. A numerical value was not documented. While including a numerical value in 2018 would be considered standard of care: not including it in 1965 in a military separation exam may have been standard of care. I do not know. The only thing I can say is that the pressure was recorded as "normal" at that exam. Glaucoma is a disease where the prevalence increases with age. The older any individual is, the greater the chance that he or she will develop glaucoma. It is more likely than not that Mr. L.H. did not have glaucoma while he was in the military and developed it later in life. As I stated in the original opinion, one piece of information that would be valuable is a copy of the examination when Mr. L.H. was originally diagnosed with glaucoma. If that examination occurred in the late 1960's or early 1970's then the evidence would point to him having glaucoma while in the military. If, however, the diagnosis was made in the late 1990's or early 2000's then it is more likely that he developed glaucoma later in life. The Board finds that the record clearly and unmistakably show that the Veteran had glaucoma prior to service. Both the January 2022 examiner and Dr. S.M. confirm this finding. The former explicitly states as such, noting that the Veteran would have had glaucoma prior to military service even though an official diagnosis was not rendered until 1967. The latter implies it by the way in which he medically describes the progression of glaucoma. According to Dr. S.M., impairment to visual acuity and colored vision is not something seen until the end stages of glaucoma. Given that both were noted to be normal at the time of enlistment and separation, the Board finds that it would have existed prior to military service. See Wagner, 370 F. 3d at 1096. The record, however, shows that the Veteran's service did aggravate his glaucoma. Dr. S.M. noted that the use of steroidal drops without documentation of careful monitoring or evaluation can and do lead to an increase in intraocular pressure, progressing glaucoma. He further notes that the use of such measures without more documentation regarding treatment falls below the standard of care, and Dr. J.H. even admits the same by today's medical standards. Increasing intraocular pressure in the Veteran's eyes due to the administration of drops naturally qualifies as aggravating the Veteran's condition beyond its natural progression. Thus, the presumption of soundness has not been rebutted, and this claim remains one for service connection. See id. The first two elements of service connection have been established: The Veteran clearly has a bilateral eye disability and, as outlined above, it was aggravated during service. See Romanowsky, 26 Vet. App. at 293 (2013); 38 C.F.R. § 3.303(a). Thus, this claim hinges on the third element of service connection. The medical professionals' competent and credible opinions concerning a nexus are nothing shy of conflicting and uncertain. Take for example Dr. J.H. He does not believe that glaucoma preexisted service and immediately states that he is unable to determine whether it began during service at all. He later contradicts that assertion when he says that it is more likely than not that the Veteran had glaucoma during service, basing that opinion on normal findings at separation, but that only is after he acknowledges the possible failure to abide by the standard of care in not documenting the Veteran's intraocular pressure at that time. He continues to imbue uncertainty into his opinion when he notes that if the Veteran truly was diagnosed with glaucoma in the late 1960s or 1970, then it is likely that he would have had glaucoma during service; if a diagnosis presented in the 1990s or 2000s, then the opposite would be true. This, of course, fully cannot be verified without the original medical records confirming a diagnosis, which are not of record. The January 2022 examiner, however, believes that glaucoma preexisted service altogether and explains that symptoms typically do not arrive until the advanced stages. Dr. S.M.'s opinion concurred with the latter finding. The Board reads these opinions to mean that, in essence, based on the severity of the symptoms for when there is documentation of glaucoma, a diagnosis around the late 1960s is probable. As is evident, there is no medical consensus regarding the Veteran's glaucoma; however, a fact on which most of the medical professionals do agree is that the Veteran was diagnosed around 1967. Given the proximity in time from the Veteran's separation from service and his diagnosis, the Board finds that his credible lay statements that he experienced bilateral vision problems since service until the present can serve as a medical nexus, as he is competent to report symptoms concerning his vision. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Furthermore, the Board stresses that while the service treatment records document care only for his right eye, the Veteran credibly has testified at this hearing that he suffered problems in both eyes during service. There is no evidence to contest the Veteran's credibility, and, indeed, it medically makes sense that if he has had a diagnosis of bilateral glaucoma since 1967 that he would have experienced symptoms to both eyes during service. Thus, the Board is satisfied that the third element of service connection has been established. See Romanowsky, 26 Vet. App. at 293 (2013); 38 C.F.R. § 3.303(a). Even if the Board were to find that the Veteran is not competent or credible to satisfy the third element of service connection, it nevertheless would still grant his claim, affording all reasonable doubt to him. This appeal has been ongoing for almost fifteen years. The multiple medical opinions of record are conflicting and do not place the Board in any better position to decide this claim than if it were without them. Any remand to obtain another medical opinion to address the three of record in an attempt to harmonize them would be a waste of resources and contrary to law. There isat the very leastreasonable doubt in this case. The law requires that it be resolved in the Veteran's favor. See Lynch v. McDonough, 999 F.3d at 1395; Gilbert, 1 Vet. App. at 53; 38 C.F.R. § 3.102. Because the evidence of record supports the Veteran's claim for entitlement to service connection for bilateral glaucoma, his appeal is granted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.