Citation Nr: 1429489 Decision Date: 06/30/14 Archive Date: 07/03/14 DOCKET NO. 09-37 003A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a bilateral eye disorder that includes retinopathy, retinal detachment, and cataracts, to include a secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from February 1965 to February 1971. This appeal to the Board of Veterans' Appeals (Board) is from an August 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2011, the Veteran testified at a Travel Board hearing before the undersigned; a transcript of this hearing is in the record. Thereafter, the matter was remanded in September 2011. FINDINGS OF FACT 1. The Veteran did not have an eye injury in service. 2. The Veteran does not have diabetic retinopathy and a preponderance of the evidence is against finding that a current eye disorder is related to service or, alternatively, is caused or aggravated by the service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for an eye disorder to include retinopathy, retinal detachments, and cataracts, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants with their claims for VA benefits upon receipt of a complete or substantially complete application. The VCAA was codified by statutes at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013), and the implementing VA regulations were codified, as amended, at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). To this end, VA must: (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant of the information and evidence that VA will obtain; and (3) inform the claimant of the information and evidence he is expected to provide. See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). VCAA notice also should address all five elements of a service-connection claim: (1) Veteran status, (2) existence of a disability, (3) relationship between the disability and service, (4) disability rating, and (5) effective date. See Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Here, the Veteran was provided with the relevant notice and information in a March 2008 letter prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds VA made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). Here, the Veteran's service records and VA and non-VA records are associated with the claims file. Pursuant to the Board's remand, the Veteran was also provided with VA examination. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Compliance with the Board's remand directives was achieved through development of the claim. The Veteran testified at Travel Board hearing. The hearing was adequate as the undersigned explained the issue and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2) (2013); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran has not alleged that there were any deficiencies in the Board hearing under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. The applicable duties to notify and assist have been satisfied. There is sufficient evidence on file in order to decide these claims and the Veteran has been given ample opportunity to present evidence and argument in support of his claim. Legal Criteria and Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to establish service connection, the evidence must generally 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In deciding claims, the Board must assess the probative value of all evidence submitted, so including both lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This evaluation generally involves a three-step inquiry. First, the Board must determine whether the evidence is competent. See e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Second, the Board must determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). In the third and final step, the Board must assess the probative value and weight of the evidence in light of the entire record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997). It is well-settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). The Veteran contends he has an eye disorder that is either related to service or secondary to the service-connected diabetes mellitus. During his hearing, he testified that he was first diagnosed with retinopathy 34 years ago. He also stated that he was getting what seemed like a lace curtain over his right eye, but when he was seen by a physician he was told both eyes had detached retinas. See page 3 of the transcript. There is highly probative medical evidence that shows the Veteran does not have a diagnosis of diabetic retinopathy. See VA treatment records in February 2009 and April 2011 and private medical records in December 2007 and May 2009. The Veteran was also afforded two VA examinations and neither examiner diagnosed retinopathy. See July 2008, October 2011, and August 2012 VA examination reports. In matters of establishing a diagnosis, medical records are more probative on the matter of whether the Veteran has the claimed disability. Here, the medical evidence establishes he does not have diabetic retinopathy. The record does show, however, the Veteran has a history of retinal tears/detachment, which is different than retinopathy. The earliest diagnosis of this disorder was in December 2007. Although the record indicates the retinas were repaired, his August 2012 VA examination indicated he had detached retina in both eyes. See the April 2012 VA examination report. Despite the diagnosis, there is no probative evidence of a nexus between the disorder and service or the service-connected diabetes mellitus. The October 2011 VA examiner noted that retinal detachments were the result of many different causes. She added that of all the possible causes, the pertinent etiologies to consider in this case were trauma, vascular disease (particularly diabetes mellitus), and vitreal traction. All other possible etiologies were ruled out based on a review of the Veteran's medical and ocular history. She opined that both detachments were not likely due to trauma since the Veteran reported and the file confirmed there was no history of ocular trauma. Both retinal detachments were also not likely due to vascular disease since retinal detachments resulting from diabetes were often the result of proliferative diabetic retinopathy, which was the later-stage complication of diabetic retinopathy. It was determined from the examination that while the Veteran had diabetes mellitus, neither eye was remarkable for any sort of diabetic retinopathy, including the proliferative form. She concluded that it was most likely that the retinal detachments were caused by vitreous traction on the retina. This occurs as the vitreous gets inside the eye and naturally begins to decompose and in some cases it can exert a tractional force that pulls on the retina, resulting in a break or tear. Both the Veteran's eyes revealed a posterior vitreous detachment ( natural event that involves the detachment of the vitreous gel from the retinal surface), which supports the likelihood of this etiology as the source of the Veteran's retinal detachments. For these reasons, the examiner opined that the condition was less likely than not due to his service or caused or aggravated by diabetes mellitus. This opinion was supported by a comprehensive rationale and based on an examination and review of the claims file, so it is highly probative. The August 2012 VA examiner also opined that Veteran's bilateral retinal detachment is less likely than not incurred in or caused by service. He noted the Veteran had a history of bilateral retinal detachment that occurred in 2007 and that there was no record of ocular injury during his time in service. He acknowledged it was possible the Veteran was at increased risk for retinal detachment during service due to trauma, but the records indicate the Veteran did not experience any ocular injury in service. The Board's own review of the Veteran's service treatment record also did not reveal evidence of an eye injury and the Veteran even testified that he did not have an eye injury in service. No equally probative competing or contradictory medical evidence has been presented to refute these medical opinions. Due to the examinations, reviews of the record, and explanation for the opinions, the medical evidence is very probative and weighs heavily against the claim. The Veteran also asserts his cataracts are either related to service or the service-connected diabetes mellitus. The presence of cataracts is documented in the medical records. See private treatment records in December 2007, May 2008 and May 2009, and July 2008 VA examination. There is no credible evidence that cataracts had their onset during service. The Veteran testified that he had 20/20 vision in the Marines in 1965 and that for the first time, in 1967, he woke up one morning and was blind in one eye. There was a grayish film that totally blocked his vision. He was seen at the battalion aid station, and then sent by helicopter some place where he remained for 2 days. He was then given glasses and has worn them ever since. See page 6 of the transcript. A review of his service treatment reveals a different account. His February 1965 enlistment medical history report shows he gave a positive response to having worn glasses. A June 1967 service treatment record shows the Veteran complained of having a sore right eye. The following day he complained of blurry vision. It was noted that he was supposed to wear glasses but he did not. The provisional diagnosis was glasses and myopia. The Veteran is competent to report what he experienced, but his testimony is not credible because it is contradicted by his service treatment records. These records are more probative because they are contemporaneous records and, therefore, found to be more reliable accounts than the Veteran's recollections more than 40 years later. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran long after the fact). The more probative evidence of record does not link the Veteran's cataracts to service or the service-connected diabetes mellitus. The October 2011 VA examiner, who opined it was less likely than not due to service or caused or aggravated by diabetes mellitus, stated the visually significant cataract that required removal in the Veteran's right eye likely developed secondary to the gas/pneumopexy/laser treatment used to repair the Veteran's retinal detachment. The cataract in the left eye was a normal, age-related change that is not visually significant and not causing any current disability. Neither cataract was complicated by diabetes mellitus. This opinion, which was based or a review of the file, medical knowledge, and an examination, is probative. The Veteran has not presented nor does the record contain equally probative medical evidence to refute the opinion. In a February 2014 brief, the Veteran's representative asserts that literature establishes that cataracts are an ocular manifestation of diabetes mellitus. This literature has not been presented the Board, but even so it is insufficient to grant the claim. Although this evidence indicates diabetes mellitus is one cause for cataracts it does not establish it as the only cause. Because the literature is a general proposition that does not specifically take into consideration the Veteran's own medical background it does not have the same probative weight as the VA examiner's opinion. After consideration of all of the lay and medical evidence, the Board finds that a preponderance of the evidence is against the claim, so service connection for an eye disorder on a direct and secondary basis is denied. ORDER Service connection for a bilateral eye disorder that includes retinopathy, retinal detachment, and cataracts, to include a secondary to service-connected diabetes mellitus is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs