Citation Nr: 1645935 Decision Date: 12/05/16 Archive Date: 12/20/16 DOCKET NO. 13-20 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a bilateral eye disability, other than cataracts, to include as due to exposure to ionizing radiation. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and D. J. ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1951 to March 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The case was before the Board in January 2015, when entitlement to service connection for stage III kidney disease, to include as due to exposure to ionizing radiation, entitlement to service connection for a respiratory disorder, to include as due to exposure to ionizing radiation and entitlement to service connection for a heart disorder, to include as due to exposure to ionizing radiation, were denied and entitlement to service connection for bilateral cataracts with macular degeneration, to include as due to exposure to ionizing radiation, was remanded for further evidentiary development. During the pendency of the Veteran's appeal for a bilateral eye disability, an October 2015 rating decision granted service connection for bilateral cataracts. However, as such did not grant service connection for all eye diagnoses of record, such as macular degeneration, the Veteran's claim remains in appellate status and the Board has recharacterized the claim as listed on the title page. AB v. Brown, 6 Vet. App. 35, 38 (1993). In August 2014, the Veteran and D. J. testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, it is at least as likely as not that a bilateral eye disability, other than cataracts, best characterized as macular degeneration with scars, is related to in-service ionizing radiation. CONCLUSION OF LAW The criteria for service connection for bilateral eye disability, other than cataracts, best characterized as macular degeneration with scars, have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this decision, the Board grants service connection for a bilateral eye disability other than cataracts. This represents a complete grant of the issue on appeal. Therefore, VA's duties to notify and assist, including pursuant to 38 C.F.R. § 3.103 (c)(2) (2015) and Bryant v. Shinseki, 23 Vet App 488 (2010), are rendered moot. Additionally, the Board observes that the grant of the claim renders moot lack of compliance, if any exists, with any prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran asserts, as in his February 2013 application for benefits, that his bilateral eye disability, other than cataracts, was caused by his in-service exposure to ionizing radiation. The Veteran's exposure to ionizing radiation is conceded, as the Defense Threat Reduction Agency (DTRA) confirmed in May 2012 that the Veteran was a confirmed participant of U.S. atmospheric nuclear testing. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). To establish service connection on a direct incurrence basis, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In service connection claims consideration must be given to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (a) (West 2014); 38 C.F.R. § 3.303 (a). VA regulations also provide for service connection for radiation exposed veterans on three different legal bases. The first basis is a presumptive basis for diseases specific to radiation exposed veterans under 38 C.F.R. § 3.309 (d). The second is based on exposure to ionizing radiation with the subsequent development of a radiogenic disease as provided in 38 C.F.R. § 3.311 (2015). A veteran is also entitled to service connection if he can establish that a disability warrants service connection on a direct or presumptive basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran satisfies the existence of the present disability standard with regard to his bilateral eye disability other than cataracts. The Veteran was afforded a July 2015 VA eye examination, which provided an assessment of cataracts which had been removed, bilateral macular degeneration and macular scars, one scar which was secondary to a retinal detachment. Such is consistent with prior VA medical records dated proximate to and during the pendency of the claim. Specifically, a September 2014 VA treatment record assessed choroidal neovascular membrane (CNVM) of the retina, active in the left eye and inactive in the right eye and noted a history of central retinal vein occlusion (CRVO) with collateralization temporally and superotemporally. VA treatment records, most recently dated in February 2015, listed cataract, senile, unspecified, senile macular degeneration of retina (nonexudative) and pseudophakia as active problems. A July 2015 VA treatment record provided an impression of CNVM of the retina, active in the left eye and inactive in the right eye with retinal pigment epithelium (RPE) atrophy, subretinal fibrosis bilaterally, a history of CRVO with collateralization temporally and superotemporally and bilateral wet age-related macular degeneration (ARMD). As noted above, the Veteran is currently service-connected for bilateral cataracts. Thus, the Board finds that a current bilateral eye disability, best characterized as bilateral macular degeneration with scars, based on the July 2015 VA examination report, has been demonstrated. As noted above, the DTRA confirmed that the Veteran participated in U.S. atmospheric nuclear testing during his active duty service. Accordingly, the Veteran meets the criteria to establish that he is a radiation-exposed veteran. However, macular degeneration is not among the specific listed diseases eligible for the service connection presumption under 38 U.S.C.A. § 1112 (c) or 38 C.F.R. § 3.309 (d). Accordingly, service connection under the first theory of entitlement is not warranted. With respect to the second avenue of recovery under 38 C.F.R. § 3.311 (b)(2), this provision provides that other listed "radiogenic" diseases found 5 years or more after service in an ionizing-radiation-exposed veteran may be service-connected if the VA Undersecretary 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. 38 C.F.R. § 3.311 does not provide presumptive service connection for radiogenic disease but provides special procedures to help a Veteran prove his claim on a direct basis. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997). However, although the evidence shows that the Veteran was exposed to ionizing radiation, as discussed above, the Veteran's macular degeneration is not among the diseases considered radiogenic diseases under 38 C.F.R. § 3.311 (b)(2), and although posterior subcapsular cataracts is listed, the Veteran is already service-connected for such. Absent evidence that the Veteran developed a "radiogenic disease," other than posterior subcapsular cataracts, referral to the VA Undersecretary for Benefits for these disabilities is not required, and service connection is not warranted under the second avenue of recovery. See 38 C.F.R. § 3.311 (b). With respect to the third avenue of recovery, the Veteran may also establish service connection for his bilateral eye disability, other than cataracts, best characterized as macular degeneration with scars, directly under 38 C.F.R. § 3.303, which is applicable in this case. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The fact that the Veteran is not entitled to presumptive service connection as a result of exposure to ionizing radiation under 38 C.F.R. §§ 3.309 and 3.311 does not preclude an evaluation as to whether the Veteran is entitled to service connection under 38 C.F.R. § 3.303. The Veteran's service treatment records are not available, with the exception of a March 1953 separation examination report which did not note any eye or visual problems. However, during his August 2014 hearing before the Board, the Veteran testified that he developed problems with his eyes in approximately 1969, when he was diagnosed with a detached retina but reported that such records were not available. He also referenced eye related treatment in 1968. Such is generally consistent the July 2015 VA eye examination, during which the Veteran reported he had a retinal detachment sometime around the early 1960s. The record does reflect the earliest VA treatment records associated with the record, dated in June 2003, do reflect diagnoses of cataracts and ARMD. After a thorough review of the evidence of record, the Board concludes that service connection for bilateral macular degeneration is warranted, as there is probative evidence of record relating such to the Veteran's in-service exposure to ionizing radiation. Specifically, the July 2015 VA examiner stated, in pertinent part, that the macular degeneration was found in both eyes and although the radiation exposure may have predisposed the Veteran to macular degeneration, at this point in life, it was most likely due to his age. However, the Board notes that since the VA examiner found the radiation exposure may have predisposed the Veteran to macular degeneration such would be a sufficient link to establish service connection. Furthermore, the Veteran, as noted above, indicated his eye problems, including a retinal detachment onset in the 1960s, and thus would be unlikely to have been associated with age during that period. Moreover, the July 2015 VA examiner further stated the Veteran had macular scars in both eyes and that one of them was secondary to a retinal detachment. As noted above, the Veteran reported he was diagnosed with a retinal detachment in the 1960s. Additionally, while the July 2015 VA examiner stated that nothing in the Veteran's history indicated that the macular scars were related to his military service, it was possible that the radiation exposure may have predisposed the Veteran to an increased risk for retinal detachment. As noted above, as the VA examiner noted the radiation exposure may have predisposed the Veteran to an increased risk for retinal detachment, such would provide basis to establish a nexus for service connection. Furthermore, the July 2015 VA examiner stated the Veteran was the only radiation exposed veteran that had been personally seen that had a retinal detachment, and that perhaps somewhere in the order of eight or nine of these veterans had been examined. The July 2015 VA examiner further stated it he was going to be pretty hard pressed to conclude that those two conditions were related; however, it was not outside of the realm of possibilities. The Board does not find the July 2015 VA examiner's comparison to the cases of other veterans to be probative as such relied upon the examiner's unscientific recollection of memories and did not specifically address the etiology in the Veteran's case but rather relied upon the statistical probability of such. Additionally, as a practical matter, in an October 2015 Report of General Information, the July 2015 VA examiner clarified which symptoms were due to each proffered diagnosis. The July 2015 VA examiner stated that cataracts usually caused issues with poor night vision and fogginess, especially at night, and macular degeneration usually caused issues with central vision and visual acuity. With respect to central visual acuity, the July 2015 VA examiner stated that it was very hard to separate the exact level of impairment that was caused by each diagnosis and to what extent. However, with respect to the Veteran's impairment of visual fields, such was specifically due to his macular degeneration and not due to his cataracts. However, as noted above, with respect to central visual acuity, the July 2015 examiner was unable to differentiate the level of impairment may be attributable to the Veteran's service-connected cataracts compared to his macular degeneration, thus macular degeneration should be considered as part and parcel of any rating provided for service-connected cataracts in the event a diagnostic code that evaluates central visual acuity is assigned. See Mittleider v. West, 11 Vet. App. 181 (1998) (regulations require that when examiners are not able to distinguish the symptoms and/or degree of impairment due to a service-connected versus a non service-connected disorder, VA must consider all of the symptoms in the adjudication of the claim). Given the evidence outlined above, the Board is of the opinion that, at the very least, the point of relative equipoise has been reached in this matter. The July 2015 VA examiner indicated that the Veteran's in-service exposure to ionizing radiation may have predisposed him to bilateral macular degeneration and retinal detachment leading to a macular scar. Such an etiological relationship has not been definitively clinically excluded. The July 2015 VA examiner's opinion, coupled with the Veteran's competent and credible report as to the onset of his eye problems leads the Board to conclude that evidence is in equipoise as to whether the Veteran has macular degeneration with scars that is etiologically related to his active service as a result of exposure to ionizing radiation. Further inquiry could be undertaken with a view towards development of the claim so as to obtain an additional medical opinion. However, to do so in this case would only serve the purpose of obtaining negative evidence. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant). Moreover, under the benefit of the doubt rule, where there exists an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the Veteran shall prevail upon the issue. Thus, with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the Veteran has satisfied his burden of showing that it is at least as likely as not that he currently has macular degeneration with scars as a result of his period of active service to include as due to exposure to ionizing radiation. 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 Entitlement to service connection for bilateral eye disability, other than cataracts, best characterized as macular degeneration with scars, is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs