Citation Nr: 1426331 Decision Date: 06/10/14 Archive Date: 06/16/14 DOCKET NO. 10-18 598 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for bilateral cataracts, including as secondary to ionizing radiation exposure. ATTORNEY FOR THE BOARD Suzie Gaston, Counsel INTRODUCTION The Veteran served on active duty from April 1945 to December 1946 in the U.S. Army, from November 1951 to October 1955 in the U.S. Navy, and from September 1947 to September 1951 and July 1958 to March 1969 in the U.S. Air Force. He died in July 2012, and the appellant is his surviving spouse who has been substituted to pursue this appeal. This matter initially came before the Board of Veterans' Appeals (hereinafter Board) on appeal from an April 2008 rating decision, by the Jackson, Mississippi, Regional Office (RO), which determined that new and material evidence had been received to reopen the previously denied claim of service connection for bilateral cataracts, including as secondary to ionization radiation exposure; however, the RO confirmed and continued the denial of the claim on the merits. The Veteran perfected an appeal of that determination. In a March 2012 decision, the Board determined that new and material evidence had been submitted and reopened the claim of entitlement to service connection for bilateral cataracts, including as secondary to ionization radiation exposure. The Board then remanded the case for additional development of the record and a de novo review of the evidence. Following the requested development, a supplemental statement of the case (SSOC) was issued in January 2014. In March 2010, the Veteran requested a Board hearing at the local RO via video teleconference. He indicated on his May 2010 substantive appeal, however, that he did not desire a hearing. Thus, the hearing request is considered withdrawn. See 38 C.F.R. § 20.702(e) (2013). In August 2012 VA was informed that the Veteran had died in July 2012. In September 2012, the appellant submitted an application for accrued benefits (VA Form 21-534), and she was accepted as an appropriate substituting party. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran died in July 2012. The appellant filed a proper claim for substitution in September 2012. 2. The record reflects that the Veteran was exposed to ionizing radiation during his military service. 3. The Veteran's bilateral cataracts were first manifested decades after service and are unrelated to any incident of service, to include in-service radiation exposure. CONCLUSION OF LAW Bilateral cataracts were not incurred in or aggravated by the Veteran's active service, nor may they be presumed to have been incurred in service, to include as due ionizing radiation exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103A, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.311 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of letters dated in February 2008 and April 2008 from the RO to the Veteran, which were issued prior to the RO decision in April 2008. An additional letter was issued in January 2010. Those letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. Moreover, as discussed below, VA has undertaken efforts to obtain an estimate of the maximum total dose equivalent of radiation exposure. The RO has also solicited the necessary medical opinion in this case. Based on a review of the record in this case, the Board concludes that the record on appeal contains sufficient medical evidence to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c) (4) (2013); see also McLendon v. Nicholson, 20 Vet. App. 79 (2007). The statute regarding accrued benefits claims was amended on October 10, 2008. Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212 (2008). Section 212 created a new, liberalizing statute, which provides that if a claimant died while a claim or appeal for any benefit under a law administered by VA was pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C.A. § 5121A. The new statute allows a person who could be considered an accrued benefits claimant to substitute for a deceased claimant to continue adjudication of the deceased claimant's claim. The provisions of the new statute apply with respect to the claim of any claimant who dies on or after October 10, 2008. See Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). In this case, the Veteran died in July 2012 and the appellant filed a proper claim for substitution thereafter. The appellant has been substituted as the claimant for the purposes of all claims that were pending at the date of the Veteran's death. 38 U.S.C.A. § 5121A. As such, under the new law, the appeal is to be continued as if the original claimant were not deceased and the record is not closed on the date of death of the original claimant; any evidence received thereafter may be considered in adjudicating the claims. II. Factual background. The Veteran's service records indicate that his military occupational specialty was as military policeman; he served with the 19th Infantry Regiment for 6 months in Japan, where he did both foot and jeep patrol. The service treatment records (STRs) for the periods from April 1945 to December 1946, September 1947 to September 1951, and from November 1951 to October 1955 are negative for any complaints or findings of any eye disorders. The STRs show that the Veteran was seen in July 1967 for complaints of swelling of the left lower eye lid, where an abscess was noted. A July 1967 entry notes a chalazion was excised. The STRs indicate that the Veteran was seen for ophthalmological consultation in March 1968 for evaluation of bifocals, complaints of headaches and watery eyes. It was noted that the Veteran had has coral dust removed from the left lid in 1967, and glasses had been prescribed. The diagnosis was beginning presbyopia. On the occasion of his retirement examination in July 1968, it was noted that the Veteran had had eye trouble pertaining to wearing glasses and having had an operation for removal of chalazion in the left lower lid in 1967. Distant vision was 20/20 in both eyes; near vision was 20/200 in the right eye and 20/50 in the left, both corrected to 20/20. When seen in December 1968, it was noted that the Veteran had defective near vision in both eyes corrected to 20/20; it was also noted that he had an operation for removal of chalazion in 1967. Examination of the eyes was reported as normal. During a medical board examination in January 1969, Veteran's near vision was reported as 20/70 in the right eye and 20/70 in the left eye, corrected to 20/20 in both eyes. On the occasion of an initial post service VA examination in September 1969, it was noted that the Veteran had had recurrent swelling in the left eye for the past three weeks, and that he had had a growth removed from the right lower lid at the Air Force Hospital. It was noted that he used to have swelling in the right eye before the lesion was removed; his eyes watered and tired easily. It was further noted that his distant vision was good. There was no history of other eye operations, eye injury, disease, strabis or diplopia. Vision was 20/20 in both eyes. The impression was chalazion, left lower lid, inactive. By a rating action in November 1969, the RO granted service connection for chalazion, left lower lid, inactive. Private treatment reports dated from June 1979 to May 2003 reflect that the Veteran received ongoing clinical evaluation and treatment for various eye disorders. During a clinical evaluation in June 1995, it was noted that the Veteran had been wearing glasses for the past 25 years. It was noted that the Veteran had noticed decreased visual acuity over the past 6 months and his right eye seems to be worse. It was also noted that the Veteran had coral dust removed from his left eye in 1968. Visual acuity was 20/200 in the right eye and 20/100 in the left eye, corrected to 20/60 in the right eye and 20/50 in the left eye. At that time, he was informed about cataracts. The records indicate that the Veteran was diagnosed with cataracts in January 1996; subsequently, he underwent cataract surgery with posterior chamber intraocular implant in the right eye in January 1996, and in the left eye in February 1996. When seen in March 1997, it was noted that no changes were seen in the eyes; the impression was pseudophakia in both eyes, and vitreous floaters. A treatment note dated in November 2000 also reflects a diagnosis of pseudophakia. Received in September 2007 were treatment records from North Mississippi Medical Center (NMMC), dated from December 2005 to June 2007, reflecting ongoing evaluation and treatment for eye disorder. A treatment note dated in March 2007 indicates that the Veteran had had trouble reading; he was diagnosed with macular degeneration in both eyes. Among these records is a medical statement from Dr. Ana Flores, dated in May 2007, indicating that the Veteran had a history of macular degeneration. She also noted that he was unhappy with his vision in both eyes ever since he had cataract surgery; his vision was worse at a distance than up close. Dr. Flores further noted that the Veteran had floaters and flashing lights in both eyes which last for a few seconds; he also had burning, itching and tearing in both eyes. He denied any pain. Vision was 20/70 in both eyes. The assessment was choroidal neovascular membrane in the left eye; age-related macular degeneration, dry in the right eye; posterior vitreous detachment in the left eye; and pseudophakia. Of record is a Radiation Risk Activity Information Sheet (RRAIS), dated in March 2008, indicating that the Veteran was stationed in Japan from 1945 to 1946 as apart of an American Occupation Forces at the end of the war. He performed patrol duty, searching caves, rode trains, and performed military police duties. The Veteran related that he was stationed midway between Nagasaki and Hiroshima Japan, where he was exposed to radiation from fallout on the ground, in the water he drank and the food he ate during his tour in Japan. In a statement from the Defense Threat Reduction Agency (DTRA), dated in August 2008, it was determined that Army records confirm that the Veteran participated as a member of the American occupation forces in Japan following World War II. It was noted that, while serving aboard USS General R. Blatchford (AP 153) and with Antitank Company, 19th Infantry, the Veteran was present in the VA defined Hiroshima and Nagasaki areas on several occasions between October 31, 1945 and May 18, 1946. Received in April 2012 were treatment reports from Memphis eye clinic dated from May 2008 through October 2011 showing ongoing clinical evaluation and treatment for choroidal neovascular membrane in the left eye; age-related macular degeneration, dry in the right eye; posterior vitreous detachment in the left eye; and pseudophakia. In January 2014, the claims folders were referred to an ophthalmologist for review and opinion regarding the nature and etiology of the cataracts. The examiner stated that the Veteran's cataracts was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that a review of STRs revealed no complaint of, examination for, or treatment of cataracts. At the Veteran's discharge medical examination on July 8, 1968, vision in each eye was 20/20 with no mention of cataracts. The veteran underwent a series of eye examinations in the private sector between June 1995 and November 2000. These records were also reviewed. In 1995, the Veteran began to complain of a decrease in vision. The diagnosis was mild to moderate nuclear sclerotic cataracts in both eyes. In January 1996, the Veteran was diagnosed with moderate nuclearsclerotic cataracts with resultant 20/50 vision in each eye. The Veteran underwent successful cataract surgery in January 1996 and February 1996. At the time of the surgeries the Veteran was 66 years old. The examiner noted that moderate nuclearsclerotic cataracts in a 66 year old would be considered a normal aging change. There was no mention of posterior subscapular cataracts or atypical morphological cataracts at these examinations. Both Vojnosanit Pregl. 2004. A 20 year perspective Cohort Study Among US Radiological Technologists Gabriel Chodick, Nural Bekiroglu, Michael Hauptmann, Bruce H. Alexander, D, Micahel Freedman, Michele Morin Doody, Li C. Cheung, Steven L. Simon, Robert M. Weinstock, Andre Bouville, Alice J. Sigurdson, Am J. Epidemiol. 2008; 168 (6): 620-631 indicate that while there may be long-term development of cataracts after exposure to low doses of inonizing radiation, these cataracts would be atypical in presentation and develop at an atypical rate. III. Legal Analysis. Service connection may be awarded 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." 38 U.S.C. §§ 1110, 1131. To establish a right to service connection, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). When a disease is first diagnosed after service, service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during the Veteran's service. 38 C.F.R. § 3.303(d). Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd, 120 F.3d. 1239 (Fed. Cir. 1997). First, there are specific diseases that may be presumptively service connected if manifest in a radiation-exposed veteran. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). A "radiation-exposed" veteran is one who participated in a radiation-risk activity. A "radiation-risk activity" includes the onsite participation in a test involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain specified sites. 38 C.F.R. § 3.309 (d) (3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. Second, other "radiogenic" diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b) (2), found five years or more after service in an ionizing radiation-exposed veteran may also be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service, or if they are otherwise linked medically to ionizing radiation exposure while in service. "Radiogenic diseases" under this regulation include tumors of the brain. 38 C.F.R. § 3.311(b) (2) (xx). Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence that supports that finding. 38 C.F.R. § 3.311(b) (4). When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest 5 years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. §§ 3.311(b), (c) (1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is "at least as likely as not" that the disease resulted from in-service radiation exposure or whether there is "no reasonable possibility" that the disease resulted from in- service radiation exposure. 38 C.F.R. § 3.311(c) (1). Third, direct service connection can be established by showing that the disease or malady was incurred during or aggravated by service, a task which includes the burden of tracing causation to a condition or event during service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a question of fact. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Barr v. Nicholson, 21 Vet. App. 303 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for bilateral cataracts, to include as due to ionizing radiation exposure, is not warranted. As noted above, it has been determined that, while serving aboard USS General R. Blatchford (AP 153) and with Antitank Company, 19th Infantry, the Veteran was present in the Hiroshima and Nagasaki areas on several occasions between October 31, 1945 and May 18, 1946. As such, he is a radiation-exposed Veteran. See 38 C.F.R. § 3.309(d) (3). Nevertheless, cataracts are not subject to the presumptive provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) (2) for radiation-exposed veterans. While posterior subcapsular cataracts are considered to be a radiogenic disease under 38 C.F.R. § 3.311, there is simply no medical evidence indicating that the Veteran has been diagnosed with this type of cataract. Specifically, post-service records of treatment, dated in January and February 1996, reflect diagnoses only of cataracts. And, the DBQ medical opinion, dated in January 2014, specifically noted that the Veteran had moderate nuclearsclerotic cataracts. A posterior subcapsular cataract is defined as a cataract involving the cortex at the posterior pole of the lens, as opposed to a nuclear cataract, which is defined as a cataract involving the nucleus. See Dorland's Illustrated Medical Dictionary, 31st Edition (2007), p. 308-309. The medical opinion, dated in January 2014 further noted that there was no mention of posterior subcapsular cataracts or atypical morphological cataracts at the time of the January and February 1996 examinations. It was added that, at the time of the surgeries the Veteran was 66 years old; and that moderate nuclearsclerotic cataracts in a 66 year old would be considered a normal aging changes. Again, nuclearsclerotic cataracts are not a radiogenic disease, as such, service connection pursuant to 38 C.F.R. § 3.311(b) (2) is not warranted. In addition, the competent evidence of record does not support a relationship between the Veteran's current cataracts and service, to include in-service radiation exposure. Rather, following a review of the claims folder, in January 2014, a VA examiner stated that the Veteran's cataracts were not likely incurred in or caused by the claimed in-service injury, event or illness. The examiner further noted that, at the time of the surgeries in 1996, the Veteran was 66 years old; he stated that moderate nuclearsclerotic cataracts in a 66 year old would be considered a normal aging changes. No doctor has related the Veteran's cataracts to radiation exposure. In short, there is no competent medical evidence to support the claim for service connection on a direct basis. Other than lay assertions, there is nothing in the claims file that would tend to establish that this claimant's bilateral cataracts are related to his military service. Lay statements may be competent 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.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Robinson v. Shinseki, 312 Fed. Appx. 336 (Fed. Cir. 2009) (non-precedential) (confirming that, "in some cases, lay evidence will be competent and credible evidence of etiology"). Lay statements that cataracts were due to in service radiation exposure hold no probative value in this case as neither the Veteran nor the claimant is shown to possess the requisite medical training and expertise to speak to issue of medical causation. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature). The Board must decide cases such as this in light of sound scientific data, and, based upon the record before the Board, the claim for service connection for bilateral cataracts under 38 C.F.R. § 3.311 must be denied. For all the foregoing reasons, the claim for service connection is denied. In arriving at this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for bilateral cataracts, including as secondary to ionizing radiation exposure, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs