Citation Nr: 1337056 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 12-16 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral cataracts, including as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1968. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This claim requires further development before being decided on appeal, so the Board is remanding it to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Although the Board sincerely regrets the further delay that inevitably will result from remanding, rather than immediately deciding, this claim, it is necessary to ensure the claim is fully developed and receives all due consideration. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2013). Specifically, pursuant to VA's duty to assist under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), another medical nexus opinion is needed to address whether the Veteran's bilateral cataracts were caused or aggravated by his service-connected diabetes mellitus, so in this way secondarily related to his military service. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In a May 2010 VA opinion, the examiner stated that early cataracts are typical of the Veteran's age group and are not at least as likely as not associated with diabetes. But this same examiner then goes on to acknowledge and explain that cataracts of this type - so presumably of the type the Veteran has - are more than likely not a result of diabetes mellitus, as hyperglycemia produces opacity in the lens fibers, forming a diabetic cataract. Thus, this opinion is internally inconsistent. In a later October 2010 opinion, apparently obtained because of that inconsistency, a different VA examiner concluded the cataracts are less likely than not caused by or a result of the Veteran's service-connected diabetes mellitus. In discussing the underlying rationale, the examiner clarified that cataracts occur in everyone after a certain age, and that the Veteran's cataracts were of the average type and degree for his age, as opposed to the "snowflake" or diabetic cataract most often noted in individuals with Type I or juvenile-onset diabetes. But two opinions are required for secondary service connection claims: (1) Is the claimed disorder "caused by" or "due to" the service-connected disability? AND (2) Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)? Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connected disability (regulatory change effective from September 2006). An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). Thus, the opinions previously obtained are inadequate for making an informed decision on this claim since they only address causation, not also aggravation, and responses to both are needed. If the opinion is inadequate, it is incumbent on the Board to correct it. 38 C.F.R. § 4.2. See also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Obtain a supplemental opinion from a VA optometrist or ophthalmologist concerning the likelihood (very likely, as likely as not, or unlikely) the Veteran's service-connected diabetes mellitus - even if not the cause of his bilateral cataracts - nonetheless is aggravating them, meaning permanently worsening them. *In other words, although there already has been comment on causation, there additionally needs to be comment on the alternative possibility of aggravation since both can serve as grounds for secondary service connection. The entire claims file, therefore, including especially a copy of this REMAND, must be made available to the examiner rendering this opinion, and it must be noted in the report that the relevant evidence in the claims file has been reviewed, so considered. If, as the prior October 2010 VA examiner concluded, a causal relationship is not found, this new examiner still must specifically also determine whether the Veteran's diabetes mellitus alternatively has aggravated (again, meaning permanently worsened) his bilateral cataracts. Phrases such as "not due to" and "not related to" are generally insufficient to address this additional issue of aggravation. The term "as likely as not" does not mean merely "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion such as causation or aggravation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide explanatory rationale for his/her opinion, if necessary citing to specific evidence in the file supporting it. 2. Ensure the opinion is responsive to the determinative issues, that is, both as concerning causation and aggravation and with sufficient explanatory rationale. If not, take corrective action to avoid another remand of this claim. 38 C.F.R. § 4.2 (2012); see also Stegall v. West, 11 Vet. App. 268 (1998). 3. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).