Citation Nr: 1234931	
Decision Date: 10/09/12    Archive Date: 10/17/12

DOCKET NO.  04-10 478	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for an eye disability other than refractive error, including as secondary to diabetes mellitus, type II. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Terrence T. Griffin, Counsel

INTRODUCTION

The Veteran had active service from February 1955 to March 1975, including combat service in the Republic of Vietnam from June 25, 1965, to June 24, 1966, and from August 16, 1969, to September 12, 1970, and his decorations include the Combat Medical Badge.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 decision of the St. Petersburg, Florida, Regional Office (RO).

In August 2006, the Veteran testified at a hearing before an Acting Veterans Law Judge who is no longer employed with the Board and a transcript of the proceeding is of record.  In a May 2012 correspondence, the Board notified the Veteran of his right to provide testimony before the Veterans Law Judge who will decide his claim and requested he indicate a desire to provide such testimony or waive such right.  See 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2011).  After more than 30 days, the Veteran has not responded to this communication; therefore, as indicated in the May 2012 correspondence, the Board will assume he does not want another hearing and will proceed with the adjudication of his claim.  

The Board previously remanded the appeal in August 2006, October 2008 and December 2010.  

In August 2012, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA).  The requested opinion was received in September 2012.  Because the opinion supports the Veteran's claim, the Board will proceed with the adjudication of the Veteran's appeal.


FINDINGS OF FACT

1.  Service connection is in effect for diabetes mellitus, type II.

2.  Resolving all reasonable doubt in the Veteran's favor, the competent evidence of record indicates that diabetes mellitus, type II, caused bilateral cataracts.  


CONCLUSION OF LAW

Bilateral cataracts are it proximately due to or the result of the Veteran's service-connected diabetes mellitus.  38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2006, 2011). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board grants the service connection for bilateral glaucoma, which represents a complete grant of the benefits sought on appeal, a discussion of VA's duty to notify and assist is unnecessary.  

The Veteran presently seeks service connection for an eye disability other than refractive error, as a manifestation of service-connected diabetes mellitus, type II.  Specifically, he maintains that his current eye symptomatology is related to his service connected diabetes mellitus, type II.  

Establishing service connection generally requires 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.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table).  The second and third elements may be established by showing continuity of symptomatology.  Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

In addition to the elements of direct service connection and presumptive service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  VA amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established prior to any aggravation.  38 C.F.R. § 3.310(b).  Because this claim was filed in October 2001 and pending prior to the recent amendment, which is not liberalizing, the Board will consider the claim under the former criteria.

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

The Board notes that the competent evidence of record confirms the Veteran's diagnosis of bilateral cataracts.  See "Diagnosis," VA Examination Report, Jan. 10, 2009.  Thus, the analysis to follow will center on whether the current disability is related to military service or any service-connected disability.  

The Veteran's February 1955 enlistment and October 1974 retirement examinations reflect eye, ophthalmosopic, pupil, or ocular motility abnormalities.  Additionally, service treatment records are negative for any eye related treatment or complaints, aside from refractive error related matters.  

The Veteran was provided a January 2007 VA examination in connection with his present claim.  During the examination interview, the Veteran detailed his account of eye/visual symptomatology and the examiner reported his eye/visual related medical history.  However, the examiner only excluded a diagnosis of diabetic retinopathy and did not provide any relevant etiological opinion.  

At a January 2009 VA examination, the Veteran reported eye/visual symptomatology, with the examiner documenting his eye/visual related medical history.  After performing a contemporaneous examination, the examiner diagnosed bilateral cataracts, but indicated an inability to provide an etiological opinion without resorting to speculation because the condition is a natural aging process of the lens, which can progress at an increased rate based on many conditions that cannot be distinguished.  

During a February 2011 VA examination, the Veteran again reported his eye/visual symptomatology and the examiner reported his eye related treatment and care, as well as current examination findings.  At this time, the examiner continued the bilateral cataracts diagnosis and opined that the condition was not related to military service.  Nevertheless, the examiner stated that an etiological opinion could not be provided without resorting to speculation, providing a virtually identical rationale as that of the January 2009 VA examiner to support the proposition.  

The Board supplemented the evidence of record with a September 2012 VHA expert medical opinion.  After reviewing both the Veteran's statements and the medical evidence associated with the claims folder, the examiner opined that the evidence did not support any finding that bilateral cataracts had its onset in service or within a year of separation.  The examiner further opined that, the Veteran's diagnosed bilateral cataracts were at least in part caused by diabetes mellitus, type II, even accounting for the natural aging process.  

	Merits

As a foundational matter, the Veteran also does not maintain that his current condition or relevant symptoms were incurred in service, including during combat, or that such symptoms persisted since separation, which is generally consistent with both service and post-service medical evidence of record.  See 38 U.S.C.A. § 1154; Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012).  

The Veteran provides a competent and credible account of eye/visual symptomatology.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  His account as to these matters has been generally consistent, including solely for the purpose of seeking and obtaining medical care, and the objective medical evidence of record also tends to corroborate his account.  These factors render the Veteran's account of eye/visual symptomatology to be competent, credible and highly probative.  See Buchanan, supra. ("[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (elucidating that VA must consider lay evidence, but may give it whatever weight it concludes the evidence is entitled to).  

In any service connection claim, medical records and examinations are highly probative in evaluating whether service connection is warranted.  In the present matter, the most probative evidence of record addressing the determinative issues, weighs in favor of the claim.  The Board finds that the January 2009 and February 2011 VA examination opinions are not adequate and are not properly considered in the evaluation the Veteran's appeal.  Courts have made it clear that if a medical examiner concludes he or she is unable to provide a nexus opinion without speculation and sufficiently explains the reasons for this inability, the opinion is not per se inadequate.  See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010); see also Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  In providing the respective January 2009 and February 2011 VA examination opinion, both examiners stated an etiological opinion could not be provided without resorting to speculation; however, neither examiner provided a basis to support the proposition and the Board finds is it not evident that such conclusions "considered 'all procurable and assembled data,' by obtaining all tests and records that might reasonably illuminate the medical analysis."  Jones, 23 Vet. App. 390 (quoting Daves v. Nicholson, 21 Vet. App. 46 (2007).  As such, the Board finds the January 2009 and February 2011 VA examination opinions to be inadequate and not probative of the question at hand.  

Conversely, the September 2012 VHA medical opinion, weighing in favor of the claim, his highly probative.  The examiner provides a medical opinion relating bilateral cataracts, at least in part, to diabetes mellitus, type II.  Moreover, the opinion is based the examiner's relevant medical expertise and consideration and analysis of the Veteran's competent account of symptomatology and relevant medical evidence.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Additionally, the opinion specifically accounts for the factors cited by the January 2009 and February 2009 VA examiners as factors (i.e., the aging process).  Thus, the Board finds that the most probative evidence of record supports a finding that the Veteran's service-connected diabetes mellitus, type II, caused his bilateral cataracts.  

In sum, the evidence confirms the Veteran's diagnosis of bilateral cataracts and provides a competent and credible account of eye/visual symptomatology.  The most probative evidence of record also relates his diagnosis of bilateral cataracts to service-connected diabetes mellitus, type II.  Accordingly, the criteria to establish service connection for bilateral cataracts have been established and service connection is warranted.  


ORDER

Service connection for bilateral cataracts is granted.  



______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs