Citation Nr: 22015124 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 19-15 132 DATE: March 16, 2022 ORDER The previously denied claim of entitlement to service connection for bilateral optic atrophy (claimed as blindness), to include as due to exposure to asbestos, is reopened; to this limited extent, the appeal is granted. REMANDED Entitlement to service connection for bilateral optic atrophy, to include as due to exposure to asbestos, is remanded. FINDINGS OF FACT 1. In an April 2009 rating decision, the Department of Veterans' Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina denied service connection for bilateral optic atrophy; the Veteran was advised of the RO's decision and of his appellate rights by letter dated later that same month. 2. The Veteran did not initiate an appeal of the RO's April 2009 decision during the one-year period following the mailing of notice of that decision; nor was any new and material evidence received within a year. 3. New evidence received since the time of the RO's April 2009 decision, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran's claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO's April 2009 decision denying service connection for bilateral optic atrophy is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.1103 (2008). 2. New and material evidence has been received to reopen the claim for service connection for bilateral optic atrophy. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from November 1968 to September 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision issued by a VARO. In May 2021, the Veteran and his spouse testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for bilateral optic atrophy. The Veteran first filed a claim for service connection for bilateral optic atrophy (claimed as blindness) in October 2008. An April 2009 rating decision denied the claim. He was notified of the decision, and of his appellate rights, by letter dated that same month. The Veteran did not initiate an appeal within the one-year period following the mailing of notice of the April 2009 decision. Nor was any new and material evidence received within that time frame. See 38 C.F.R. § 3.156(b). As a result, the RO's decision became final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.1103 (2008). Generally, a claim that has been denied in a final rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and has characterized the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 11 (2010). For purposes of determining whether new and material evidence has been received, the credibility of the evidence is to be presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The April 2009 rating decision denied service connection, in part, because the evidence failed to show that the Veteran's optic atrophy was related to service, to include as due to exposure to asbestos. The evidence before VA at the time of the prior final rating decision relating to the claim consisted, in part, of the Veteran's service treatment records (STRs), treatment records and statements from both VA and private providers, and the Veteran's lay statements. The Board finds that new and material evidence has since been received. In a May 2021 statement, P.F., O.D., Ph.D. stated that an insult to the optic nerve could have occurred during episodes of the Veteran's exposure to diesel exhaust and low levels of oxygen while serving aboard a submarine during service, and that it may have remained stable for many years before further progression to severe optic atrophy and severe vision loss. This evidence indicates that there may be a link between an in-service event and the Veteran's current diagnosis, which relates to a previously unestablished fact and raises a reasonable possibility of substantiating the claim. It is therefore new and material. The claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND Entitlement to service connection for bilateral optic atrophy is remanded. The Veteran believes that his bilateral optic atrophy was incurred in or caused by service. Specifically, in a February 2018 statement, he stated that he served aboard the U.S.S. Jallao, a World War II era submarine, that he was exposed to asbestos during that time, and that this exposure caused his optic atrophy. He has also contended that the disability is due to exposure to diesel exhaust and/or low levels of oxygen while serving aboard the U.S.S. Jallao. In that regard, he testified at the May 2021 Board hearing that due to the construction of the submarine, it would sometimes fill with diesel exhaust, that it happened many times, that when the vessel was submerged they could not come up or snorkel, and that the air would get so thin you could not light a match. He also testified that he had to have his glasses prescription changed every six months after service for many years, and that a doctor told him it was probably because he had been confined to a submarine and was able to look only 6 to 10 feet in front of him, but that when he got out and looked down the road and could see much further, that messed up his vision. The Veteran further testified that he started losing his sight when he was 22 or 23, that it had gotten worse ever since, and that he was told he was legally blind in 2007. As an introductory matter, the Board notes that the claims file indicates that there has previously been a conflict in regard to the whether the file contains a copy of the Veteran's STRs. At the May 2021 hearing, the Veteran testified that he had received a letter from VA informing him that some of his STRs were destroyed in a fire in St. Louis. The claims file contains an August 2014 letter to that effect, which also informed the Veteran that further attempts to obtain his STRs would be unsuccessful. The Veteran has also reported that he was not given an exit physical when he separated from service. Despite the August 2014 letter and the Veteran's reports of not being examined at his separation from service, the Board notes that the claims file appears to contain a complete copy of the Veteran's STRs, to include an August 1972 separation examination. In this regard, it appears that the August 2014 letter was sent in error. The Board notes that a copy of the Veteran's STRs were of record at the time of the April 2009 rating decision, as the RO specifically found at that time that STRs were silent for any treatment or diagnosis of a bilateral eye condition or eye injuries during service The Board also notes that the April 2009 rating decision stated that the Veteran's STRs showed a diagnosis of bilateral optic atrophy while serving in the Navy. That statement appears to be a typographical error, inasmuch as no such diagnosis was noted in service, and a review of the claims file shows that the Veteran was not diagnosed with bilateral optic atrophy until 2007 many years after his separation from service. The Board further notes that the error in the April 2009 rating decision has unfortunately been subsequently compounded. In a February 2018 submission, the Veteran contended that he was treated and diagnosed with bilateral optic atrophy while serving in the Navy. A review of the claims file makes clear that the Veteran based that contention upon the erroneous statement in the April 2009 rating decision. While sympathetic to the Veteran and acknowledging that VA made an inaccurate statement in its April 2009 rating decision, the Board emphasizes that the Veteran's STRs are silent for treatment and/or a diagnosis of optic atrophy. Turning to the merits of the case, the Board first notes that there is no material dispute that the Veteran has a current diagnosis of bilateral optic atrophy, as evidenced by VA treatment records. The first element of service connection has therefore been established. Military personnel records (MPRs) also confirm that he served aboard the U.S.S. Jallao from May 1969 to August 1972. Turning to the STRs, the Board notes that at his May 1968 pre-induction examination, the Veteran's vision was largely normal, with vision in the right eye measured as 20/20 and in the left eye as 20/30. The examiner noted that the Veteran needed glasses for reading. At a December 1968 examination for submarine training, his vision was measured as 20/25 in the right eye and 20/30 in the left eye. The examiner also noted amblyopia in the right eye, but recommended a waiver, which was given. March 1970, July 1971, and August 1972 STRs show that the Veteran was examined for a spectacles prescription as he had to stand topside for watches and needed sunglasses. In an April 1972 STR, the Veteran complained of blurred near vision since July 1971, though examination at that time was largely normal, with vision in the right eye measured as 20/20 and in the left as 20/25. The Veteran's August 1972 separation examination shows that his vision was measured as slightly better than it was at the time of his May 1968 pre-induction examination, with the right eye measured as 20/20 and the left eye as 20/25. The Board also notes, however, that a September 1972 STR shows that the Veteran's vision was again tested, and that his right eye was measured as 20/20, while the left was 20/40. Regarding the Veteran's contention that he was exposed to asbestos during service, the Board notes that the Veteran submitted an article in October 2021 showing that the U.S.S. Jallao was a World War II era submarine, and that its insulation, gaskets, valves, and more were in part or entirely made of asbestos. World War II era ships are known to have used significant amounts of asbestos in their construction. The Veteran's exposure to asbestos in service is therefore conceded. Regarding the Veteran's contention that he was exposed to diesel fumes and/or low levels of oxygen during service, the Veteran submitted a statement from his treatment provider, Dr. F., in May 2021. Dr. F. noted the Veteran's report that he was repeatedly exposed to diesel exhaust and low oxygen levels during episodes of engine stall or "flame out," and that during those times bread would only rise to 1.5 inches because the air was sucked out of the boat, and sailors would have to sit down or lay down due to a lack of oxygen. Dr. F. then stated that she was unable to find information on diesel exhaust exposure in submarines at the time the Veteran served, but that it was likely that these circumstances had been reported in submarine records of the time. She noted that the National Cancer Institute had done extensive review of exposure to diesel exhaust in 2009, and that while its study did not include submarine occupations, it looked at other occupations known for diesel exhaust exposure, finding that the highest levels were for mining, mine maintenance, and construction. She later stated that while diesel exhaust levels for submarines were not cited in the study, by common sense it would be expected to be similar to underground exposure. Dr. F. then stated that the Veteran was repeatedly exposed to diesel exhaust and low oxygen levels at a young age. The Board finds Dr. F.'s May 2021 opinion as to the in-service event of the Veteran's exposure to diesel exhaust and/or low oxygen levels probative. It is consistent with the record and the Veteran's report, with citation to medical literature and a thorough rationale provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran's exposure to diesel exhaust fumes and low oxygen levels during service is therefore conceded. Inasmuch as the Veteran was treated for and complained of blurred vision during service, and the evidence also demonstrates that he was exposed to asbestos, diesel exhaust, and low oxygen levels during service, the Board finds that the second element of service connection as to an in-service event has also been established. Turning to the medical evidence of record, the Board notes that the claims file contains extensive documentation of the Veteran's sudden and progressive vision loss around 2006 and 2007, to include etiological opinions. He was seen by multiple providers around that time, but a review of the records indicates that the etiology of his vision loss was never definitively determined. A December 2006 private treatment record shows a diagnosis of possible ischemic optic neuropathy. That same month, another private provider found that the Veteran had a diagnosis of questionable early optic neuropathy versus vision loss of undetermined etiology. A January 2006 private treatment record shows a diagnosis of optic neuropathy with the etiology being unclear. By February 2007, a private provider noted the same diagnosis and stated that extensive workup was negative. The provider suspected tobacco/alcohol amblyopia versus post-viral inflammation. The Veteran saw an M.M., M.D. later that month, who noted the working diagnoses but stated that while evaluation had been extensive, providers were still not certain regarding a definitive diagnosis. A March 2007 letter from T.M, M.D., assessed the Veteran with bilateral cecocentral scotoma, noting that differential diagnoses included hereditary optic neuropathies, and that Leber's hereditary optic neuropathy (LHON) in particular remained a possibility. He opined that the acute onset would vote against other hereditary neuropathies, but acknowledged that it would also be atypical for LHON given the somewhat simultaneous onset. Dr. M. ordered a blood test to look for mitochondrial mutations in LHON, stated that toxic/nutritional neuropathy was certainly a possibility, and that tobacco/alcohol amblyopia would certainly fall into that category. In a September 2007 letter, Dr. M. noted that the blood test for LHON was not sent to the laboratory until several months after it was taken, but that they did finally get a report back showing that the Veteran had the Wallace mutation with 11778-G mutation. An October 2007 letter from N.N., M.D., another private provider, noted that the Veteran had severe bilateral simultaneous vision loss and tested positive for the 11778 mutation associated with LHON. He noted that he had a past ocular history of lazy eye (amblyopia) diagnosed around age 8, which was treated with patching. He further noted that the Veteran had normal visual acuity and was in a usual state of health until November 2006, when he developed severe viral syndrome and noticed progressive visual loss before it ultimately plateaued. Dr. N. also noted that Dr. M. had diagnosed bilateral optic nerve pallor, cecocentral scotomas on visual fields, and right Horner's syndrome. Finally, in a March 2008 letter, Dr. F. stated that the Veteran was legally blind with vision affected by optic nerve disease. From that time forward, VA treatment record problem lists have shown both optic atrophy and Leber's optic atrophy as diagnoses. The Board also notes that at his May 2021 hearing, the Veteran questioned the diagnosis of LHON. He testified that many VA doctors had asked what happened and that they had said LHON does not come on like that, and that it had to be something else. While acknowledging that Dr. M., in his March 2007 letter, stated that the acute onset would be atypical for LHON in that it affected both eyes simultaneously, the Board notes that he made this statement prior to the blood test which was positive for the 11778 mutation. VA providers have also subsequently addressed the apparent conflict as to the validity of the 2007 genetic testing. In a March 2014 VA treatment note, a provider told the Veteran that VA would not recommend repeat testing of LHON in his case as a positive test result was available. An April 2019 VA treatment shows that the Veteran was not satisfied with the results of the genetic testing for LHON in that some providers stated that he had LHON and others stated he probably did not. The provider clarified that laboratories did confirmatory testing before reporting a positive result, and that there was no need for VA to do repeat testing as the Veteran's positive genetic result confirmed LHON as the cause of his vision loss. In her May 2021 statement, Dr. F. addressed the issue of whether there is a link, or nexus, between the Veteran's optic atrophy and his in-service exposures. She stated that the Veteran was a former patient, that she understood that military records indicated that the Veteran was diagnosed with optic atrophy while in the Navy, that his records were destroyed in a fire, and that he reported that he had no physical examination on his discharge from the Navy. Dr. F. then stated that the Veteran's LHON results were unclear, but that it was likely that testing was done to try to determine the etiology of his vision loss. She stated that LHON was a hereditary condition that typically affected vision, and that testing for the mitochondrial genetic mutation would be a sound strategy since the Veteran exhibited vision loss that manifested at an age unlikely to be age-related. Dr. F. then stated that optic atrophy might occur at any age, as could LHON, that diesel exhaust was a known probable carcinogen that caused mutations to mitochondrial DNA, and that LHON was a mitochondrial disease that might manifest due to exposures to agents that activate mitochondrial mutations. She also stated that a study on the effects of diesel exhaust on the eye found that high serum homocysteine levels correlated with a decrease in the blood flow velocity of the ophthalmic artery in highway toll workers, and that decrease in blood flow velocity of the ophthalmic artery had been associated with orbital occlusive disease which included optic atrophy. She further stated that low levels of oxygen affected the optic nerve adversely, and that as in cancer associated with diesel exhaust exposure, an insult to the optic nerve might manifest vision loss long after the initial insult occurs. Dr. F. then stated that her opinion was based on medical history, reported military history, and medical and research literature. She opined that based on the fact that the Veteran was diagnosed with optic atrophy while in the military and that he reported fluctuations in vision shortly after discharge that continued for several years, it was more likely than not that his optic nerve received an insult during service while on the submarine. She further reasoned that because there was no evidence of optic atrophy at the Veteran's entrance to service, the insult could have occurred during episodes of exposure to diesel exhaust and low oxygen levels during 'flame out,' and that regardless of whether the Veteran had LHON or not, that insult might have remained stable for many years before further progression to severe optic atrophy and severe vision loss. Dr. F. supported her opinion with citation to several medical articles. While clearly supportive of the Veteran's claim, the Board finds Dr. F.'s May 2021 opinion as to the element of nexus insufficient for an award of service connection for at least three reasons. First, while her opinion that the Veteran's optic nerve received an insult during service on the submarine is unequivocal, her opinion as to whether that insult ultimately caused the Veteran's optic atrophy is expressed in terms of possibility, rather than probability ('could have occurred;' 'might have remained stable'). Second, her opinion is based, at least in part, on an inaccurate factual premise, which is that the Veteran was diagnosed with optic atrophy in service. Third, it does not appear that Dr. F. reviewed the Veteran's STRs, in that she appears to have taken as true the Veteran's report that his STRs were destroyed in a fire and that he did not undergo a separation examination. To date, the Veteran has not been afforded a VA examination in connection with his claim. Given the presence of a current diagnosis, conceded in-service exposures, and Dr. F.'s May 2021 statement indicating that there may be a link between the two, the Board finds that a VA examination and/or opinion is warranted. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Updated records of any VA treatment the Veteran has received should also be procured. Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). As a final matter, the Board notes that evidence of record indicates that the Veteran may be, or at one point was, in receipt of disability benefits from the Social Security Administration (SSA). An SSA inquiry indicates that the Veteran has a disability onset date of November 2006. Thus far, it does not appear that any attempt has been made to obtain a complete copy of the medical records underlying the SSA's award. Because the records from SSA could contain information pertinent to the issue on appeal, efforts should be made to procure them. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This matter is REMANDED for the following action: 1. Ask the SSA to provide copies of any relevant records in its possession pertaining to its consideration of the Veteran's application for SSA disability benefits, to include any medical records considered in making that award, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence obtained, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured in March 2018, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to provide the record on appeal to a qualified VA examiner for the purpose of assessing the etiology of the Veteran's bilateral optic atrophy. The examiner should review the record. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's bilateral optic atrophy had its onset in, or is otherwise attributable to, service, to include as due to his conceded in-service exposures to asbestos, diesel exhaust, and/or low oxygen levels. In so doing, the examiner should consider the Veteran's in-service vision examinations and treatment, to include the April 1972 STR in which the Veteran complained of blurred vision since July 1971. The examiner should also consider and address Dr. M.'s March 2007 letter discussing the possible etiologies of the Veteran's vision loss; Dr. M.'s September 2007 letter indicating that the Veteran's blood test was positive for the 11778-G mutation associated with Leber's hereditary optic neuropathy; Dr. N.'s October 2007 letter to the same effect; and Dr. F.'s May 2021 statement indicating that exposure to diesel exhaust and/or low levels of oxygen while serving aboard a submarine could have caused an optic insult which might have remained stable for many years before further progression to severe optic atrophy and severe vision loss. The examiner should also consider the Veteran's contention that his optic atrophy was caused by being confined to a submarine where he could only see 6 to 10 feet in front of him, that when he got out and looked down the road he could see much further, and that this contrast messed up his vision. The need for an in-person examination and/or video or telephonic interview of the Veteran is left to the discretion of the examiner. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.