Citation Nr: 1637120 Decision Date: 09/22/16 Archive Date: 09/30/16 DOCKET NO. 13-21 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right eye disorder, to include diabetic retinopathy, pseudophakia, and blindness, to include as secondary to diabetes mellitus type II. 2. Entitlement to a compensable initial rating for diabetic retinopathy of the left eye. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Andrew Hinton, Counsel INTRODUCTION The Veteran had active service from March 1965 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2010 and September 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for a right eye disorder and granted service connection for diabetic retinopathy with an initial noncompensable rating, respectively. Thereafter, the Veteran perfected an appeal as to the denial of service connection for his claimed right eye disorder and the propriety of the initial rating assigned for his left eye disability. With regard to the initial rating claim, the Board notes that, in the November 2014 substantive appeal (VA Form 9) that perfected the appeal of such claim, the Veteran checked the box that read: "I want to appeal all of the issues listed on the statement of the case and any supplemental statements of the case that my local VA office sent to me." The Board notes that the Veteran specifically referenced his claim for service connection for a right eye disorder and only presented arguments on such issue. However, the Board finds that the checked box indicates that the Veteran wanted to appeal all of the issues addressed by the October 2014 statement of the case, which includes the initial rating claim. See Evans v. Shinseki, 25 Vet. App. 7 (2011). Therefore, such issue has been properly appealed and is before the Board. In April 2016, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge sitting in Washington, D.C. A copy of the hearing transcript has been associated with the record. At such time, the Veteran chose not to provide testimony regarding the initial rating claim on appeal. Additionally, he submitted additional evidence in support of his appeal and waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the file since the issuance of the April 2013 and October 2014 statements of the case. 38 C.F.R. § 20.1304(c) (2015). Finally, the undersigned held the record open for 60 days for the receipt of additional evidence, which was submitted in May 2016 with a waiver of AOJ consideration. Id. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The issue of entitlement to a compensable initial rating for diabetic retinopathy of the left eye is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The Veteran's current right eye disorders of diabetic retinopathy, pseudophakia, and blindness are proximately due to or the result of his service-connected diabetes mellitus type II. CONCLUSION OF LAW The criteria for service connection for diabetic retinopathy, pseudophakia, and blindness of the right eye have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for the Veteran's claimed right eye disorder, diagnosed as diabetic retinopathy, pseudophakia, and blindness, herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015). Service connection may also be granted for any disease diagnosed after discharge, 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of 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). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In a January 2010 statement the Veteran initiated a claim of service connection for blindness in his right eye as secondary to his service-connected diabetes mellitus type II. Although he subsequently offered other theories of entitlement to service connection, based on the evidence on file the determinative theory leading to the decision below is that the etiology of his right eye disorder is related to his service-connected diabetes mellitus type II. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to consider "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). In this regard, the Veteran's service treatment records show no indication of any eye problems referable to the claimed right eye disorder. During a February 1968 examination prior to release from active duty, the Veteran reported having no eye trouble, and only that he had a history of far sightedness and had worn glasses for 15 years. On examination the evaluation of the eyes was normal. Vision in the right eye was recorded as 20/200 corrected to 20/20. No eye condition other than refractive error was noted. However, VA has granted service connection for diabetes mellitus type II based on his service in Vietnam, and thereby, based on the presumption of exposure to certain herbicide agents, and of service connection based on that exposure. See 38 C.F.R. §§ 3.307, 3.309(e). VA has also granted service connection for the following as being associated with the diabetes mellitus type II: erectile dysfunction, diabetic retinopathy of the left eye; and peripheral neuropathy of the bilateral lower extremities. During a February 2005 VA examination for diabetes mellitus, the Veteran reported that he had no known history of diabetic retinopathy. With respect to examination of his eyes during a June 2007 VA diabetes mellitus examination, the report contains notation of "[n]o visual complaints at this time. No diabetic retinopathy." A March 2009 VA annual eye examination report records that the Veteran had a past medical history of diabetes mellitus without mention of complication, type II, or unspecified. The report shows that examination in March 2008 concluded with an assessment of cataracts in both eyes, and epiretinal membrane of the right eye. Presently, it was noted that the Veteran reported complaints of increasing blurriness in the right eye, and floaters in both eyes, and no flashes. The Veteran had a four year history of diabetes mellitus, and hypertension. After examination, the assessment was vitreomacular traction of the right eye; diabetes mellitus with hypertension; no retinopathy; and cataracts. The report recorded that on diabetic retinal examination the Veteran had no diabetic retinopathy. In August 2009, Dr. S.K. Gupta, M.D., Assistant Professor, and Medical Director, Department of Ophthalmology, College of Medicine, University of Florida, provided a statement describing the treatment of the Veteran's right eye disorder. Specifically, Dr. Gupta reported that the Veteran initially presented in their clinic with a diagnosis of cataract, epiretinal membrane, and diabetic retinopathy in his right eye. In March 2009 the Veteran underwent successful combined phacoemulsification with intraocular lens placement and pars plana vitrectomy with removal of epiretinal membrane. Dr. Gupta further stated that the Veteran subsequently developed a retinal detachment complicated by proliferative vitreoretinopathy for which he underwent surgery in May 2009, with silicone oil placement. Subsequently in July 2009, the silicone oil was removed, at which time areas of sub-retinal and pre-retinal fibrosis were addressed. Dr. Gupta also stated that, in August 2009, the Veteran came in for an urgent visit complaining of severe eye pain. At that time examination revealed rubeosis and IOP (intraocular pressure) of 52 mmHg. Dr. Gupta noted that this diagnosis is typically related to retinal ischemia, which may represent a complication of diabetic retinopathy. The Veteran was treated and scheduled for a repeat pars plana vitrectomy with endolaser. However, the laser in the clinic was not possible secondary to poor view from media opacity and residual gas bubble in the vitreous cavity. Surgery was successful in regressing the rubeosis and stabilizing the Veteran's IOP. Dr. Gupta concluded that the Veteran suffers from serious eye disease that is multi-factorial in nature; however, patients such as the Veteran who are known diabetics are at significantly increased risk for diabetes-related complications such as retinopathy, retinal membranes, and cataracts. Dr. Gupta opined that, while it is impossible to determine the extent of the role that diabetes played in the Veteran's eye disease process, that all of the Veteran's ocular findings were consistent with and much more likely with his medical history. A January 2010 VA treatment record shows that the Veteran reported that he had had five surgeries on his right eye through the University of Florida retina clinic, first for a membrane and then later for retinal detachment. He reported that the right eye was filled with air, then with silicone oil; and the oil caused nerve damage. After examination the assessment was (1) vitreomacular traction, (2) diabetes mellitus with hypertension-no retinopathy; and (3) cataracts NVS (nonvitrectomizing vitreous surgery). The report records that on eye examination the Veteran had no diabetic retinopathy. During a March 2010 VA eye examination, the report contains an initial summary of problems, which was comprised of: (1) epiretinal membrane, right eye, first documented on eye examination dated in March 2007, and in March 2009, the Veteran was diagnosed with vitreomacular traction, at which time he had no diabetic retinopathy, and was scheduled for surgical repair; (2) retinal detachment of right eye, date of onset in May 2009; (3) diabetes mellitus; and (4) cataracts, date of onset in March 2004. After a complete examination, the examiner diagnosed history of epiretinal membrane right eye treated with surgical repair, and subsequent development of a retinal detachment which has resulted in decreased vision in the right eye. The examiner opined that epiretinal membrane and retinal detachment in the right eye is not caused by or a result of diabetes. In support of such opinion, the examiner indicated that an epiretinal membrane is a growth of scar tissue over the macula. It can be caused by diabetes, prior surgery, aging, or idiopathic. However, there was no diabetic retinopathy when the Veteran was diagnosed with the epiretinal membrane; and that in a patient with no history of diabetic retinopathy, an epiretinal membrane is not caused by or a result of diabetes. Further, since the Veteran had no history of diabetic retinopathy, his history of retinal detachment that occurred after surgical repair of the epiretinal membrane in the right eye was not caused by or a result of diabetes. The examiner also opined that the Veteran did not have diabetic retinopathy. A December 2011 VA treatment record shows that the Veteran was being seen for check-up of his right eye for IOP and dilated fundus examination. The report contains an assessment of (1) neovascular glaucoma, (2) blepharitis, and (3) history of diabetes mellitus with non-proliferative diabetic retinopathy. A June 2012 VA treatment record contains an assessment of status post pars plana vitrectomy for epiretinal membrane of the right eye, post-operative retinal detachment. Presently there was neovascular glaucoma with high pressures. The report of a March 2013 VA examination for eye conditions contains a discussion of the medical history of the Veteran's right eye symptomatology and treatments, and an examination. After examination, the report includes diagnoses of "no diabetic retinopathy OD (right eye) was noted", and pseudophakia both eyes. The examiner commented that no diabetic retinopathy of the right eye was found on CPRS (Computerized Patient Record System) notes, thus there is no onset of the condition; and that no diabetic retinopathy of the right eye was noted on present eye examination. The examiner opined that, with no history of diabetic retinopathy noted in CPRS, diabetic retinopathy did not cause any of the loss of vision in the right eye; rather, the loss of vision was caused by retinal detachment after epiretinal membrane surgery. In an April 2013 addendum to the March 2013 VA examination, the examiner commented that CPRS notes prior to August 2009 shows no diagnosis of diabetic retinopathy. On this basis, the examiner opined that, without any diagnosis of diabetic retinopathy prior to retinal detachment in July 2009, diabetic retinopathy did not cause a retinal tear. The examiner noted that diabetic retinopathy was noted in CPRS in November 2011, after the retinal detachment in July 2009. A January 2014 VA treatment record contains an assessment of status post pars plana vitrectomy for epiretinal membrane of the right eye, post-operative retinal detachment status post repair; history of neurovascularization of iris of the right eye with IOPs in the 50s. The report of an April 2016 VA Form 21-0960N-2, Eye Conditions Disability Benefits Questionnaire, completed by an examining private medical doctor shows that he noted that there were existing right eye diagnoses of: blind right eye diagnosed in January 2016 and diabetic retinopathy diagnosed in 2009. He noted that the Veteran had a history of diabetic retinopathy proliferative resulting in neovascular glaucoma per prior doctor's notes. The examiner noted that the Veteran had a history of diabetes mellitus, status post multiple eye surgeries to the right eye, and now was NLP (no light perception) in his right eye. On examination, visual acuity of the right eye was recorded as having no light perception/no vision at all; the right eye was non-reactive. Examination showed laser scars and retinal pigmentary changes atrophy. Right eye conditions included glaucoma, cataract, and retinal condition. There was postoperative cataract and replacement intraocular lens on the right. Neovascular glaucoma was present on the right. The right eye had retinal conditions of retinopathy and detached retina. The Board finds that the criteria for service connection for a right eye disorder have been met. Although the record includes evidence both in favor of and against the Veteran's claim, the evidence in his favor is more persuasive and probative than that against his claim. The physician who treated the Veteran in 2009 for the eye pathology, Dr. Gupta, with specialties in ophthalmology and vitreoretinal diseases and surgery, provided an opinion that is consistent with the overall facts of the case and the clinical history and development of the Veteran's right eye symptomatology in relation to that of his diabetes mellitus type 2 as discussed above. Essentially, there are treatment records and the August 2009 statement from the Veteran's treating physician, which contain evidence and opinions that a chronic right eye disorder is secondary to the Veteran's service-connected diabetes mellitus type 2. Certainly the evidence logically shows that the diagnosed diabetic retinopathy of the right eye is caused by or is part of the service-connected diabetes mellitus type II. Dr. Gupta essentially opined that the Veteran's diabetes placed him at a significantly increased risk for diabetes-related complications such as: retinopathy, retinal membranes, and cataracts. Dr. Gupta opined that, although it would be impossible to quantify the extent to which the Veteran's diabetes played a role in the Veteran's eye disease, nonetheless, all of the Veteran's ocular findings were consistent with and much more likely, given his diabetes medical history. In other words, the right eye pathologies are consistent with and much more likely related to the Veteran's diabetes mellitus type II. Dr. Gupta's statement contains findings and pertinent opinions arrived at in the course of providing significant eye treatment to the Veteran including surgery. These findings and opinions are dated months before the Veteran's claim for service connection. They clearly provide unbiased evidence of the presence of diabetic retinopathy in the right eye prior to and at the time of the August 2009 statement. There is no evidence to conclude that the treating physician's opinion was written in advocacy of the Veteran's claim or is otherwise not unbiased in its medical assessment at that time, which was several months prior to the Veteran's filing of his claim for service connection. As discussed above, findings contained in treatment records and the April 2016 VA Eye Conditions Disability Benefits Questionnaire show the presence of diabetic retinopathy. Such evidence is consistent with the opinion contained in Dr. Gupta's statement, and generally in conflict with the rationale of the VA examination opinions. The Board finds that the private treatment record findings and concluding opinions of Dr. Gupta are consistent with the record overall, whereas the opinion of the VA examiners appears somewhat inconsistent, given the evidence overall shows the presence of diabetic retinopathy on which Dr. Gupta's opinion is in part based. The Board finds highly persuasive and probative the opinion of the treating ophthalmologist, Dr. Gupta, in essence that the Veteran's right eye disorder, to include diabetic retinopathy, pseudophakia, and blindness, is secondary to residuals of diabetes, principally diabetic retinopathy. On that basis, and after resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence overall establishes the etiological relationship of the Veteran's right eye disorder, to include diabetic retinopathy, pseudophakia, and blindness, to his diabetes mellitus type II. See 38 C.F.R. § 3.310. In consideration of the evidence of record, the evidence is at least in equipoise as to whether service connection is warranted. Resolving reasonable doubt in his favor, the Board concludes that service connection is warranted for right eye disorder, to include diabetic retinopathy, pseudophakia, and blindness, as secondary to diabetes mellitus type II. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for diabetic retinopathy, pseudophakia, and blindness of the right eye is granted. REMAND The Veteran claims that an initial compensable rating for diabetic retinopathy of the left eye is warranted. In the decision above, the Board has granted service connection for diabetic retinopathy, pseudophakia, and blindness of the right eye. The downstream action to evaluate and assign an initial disability rating for the right eye disability is a function of the RO following the grant of service connection by the Board. Adjudication of the appealed claim for an initial compensable rating for diabetic retinopathy of the left eye is inextricably intertwined with the evaluation to be assigned by the RO for the right eye disability, as these disabilities must be evaluated in combination. See 38 C.F.R. § 4.79; Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue); Parker v. Brown, 7 Vet. App. 116, 118 (1994). Therefore, the Board's resolution of the initial disability rating claim regarding the left eye on appeal would be premature at the present time. Accordingly, the case is REMANDED for the following action: Following the implementation of the Board's grant of service connection for diabetic retinopathy, pseudophakia, and blindness of the right eye, readjudicate the issue of entitlement to an initial compensable rating for diabetic retinopathy of the left eye based on the entirety of the evidence. If the claim 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. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. 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 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 2014). ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs