Citation Nr: 1752349 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 11-05 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a bilateral eye disorder (other than glaucoma), to include as exposure to Agent Orange, or as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. B. Kass, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 until April 1972. This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran initially claimed entitlement to service connection for glaucoma of the right eye, but the claim was expanded to include bilateral glaucoma in a May 2009 rating decision. In August 2014, the Board expanded the claim to include service connection for a bilateral eye condition. In September 2016, the Board denied service connection for bilateral glaucoma and remanded the claim for a bilateral eye disability, other than glaucoma. The Board remanded this case in April 2017. It has since returned for further appellate consideration. FINDINGS OF FACT 1. The Veteran had his bilateral cataracts removed during the appeal period. 2. The Veteran's bilateral eye disability is not related to service. 3. The Veteran's bilateral eye disability is not caused or aggravated by his service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for bilateral eye disability are not met. 38 U.S.C. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Direct Service Connection The Veteran is seeking service connection for his bilateral eye disability. Although he underwent pseudophakia (cataract extraction), the Veteran had a current disability during the appeal period. The Veteran reported symptoms of sensitivity to light, pain, and discharge. He also stated that he experienced night blindness and loss of day vision through glare in both eyes along with decreased vision. See April 2009 VA Examination report. He contends his disability is related to a November 1971 incident and herbicide exposure. See March 2017 statement. Although he can satisfy the first element - a current disability, and the second element - in-service incurrence, he cannot satisfy the nexus between his in-service incurrence and current disability. The Board finds service connection is not warranted because there is no nexus to service. In November 1971, service treatment records (STRs) show the Veteran's left eye was infected. In addition, there was a large foreign body in left eye embedded in cornea at 9 o'clock, which was removed and the eye was patched. In March 1972, his separation examination did not indicate any eye problems. In April 2009, a VA examiner diagnosed bilateral cortical cataracts. In September 2014, a VA examiner provided an addendum opinion that diagnosed bilateral cataracts. However, the addendum did not provide an opinion on the etiology of the disability. In November 2016, the September 2014 examiner diagnosed pseudophakia (cataract extraction). The Veteran was diagnosed with senile nuclear sclerosis cataracts, which current literature categorized as age-related. Although the Veteran no longer had cataracts, the examiner reasoned that it was less likely than not that his bilateral eye disability was related to service, including herbicide exposure. The examiner explained that the development of age-related cataract was a painless, progressive process that was highly variable among individuals. Cataract formation was typically bilateral, although it was often asymmetrical. Patients usually complained of a problem with night driving, reading road signs, or difficulty with fine print. In this case, treatment records documented slow painless, progressive changes in the Veteran's cataract status with documented good corrected visual acuity in both eyes prior to extraction. The vast majority of cataract extractions were for acquired cataract, with senile or age-related cataract predominating. Risk factors that have been associated with acquired cataract included: age, smoking, alcohol consumption, sunlight exposure, metabolic syndrome, and diabetes mellitus. Most of these risk factors were environmental stressors that lead to the formation of toxins or the impairment of antioxidants, although low education has no obvious biologic link. An age-related cataract typically has three components: nuclear sclerosis; cortical spoking; and posterior subcapsular haze. A senile nuclear sclerosis cataract progresses very slowly. The examiner noted that distance vision was typically affected much more than near vision. While the Veteran was in his mid-60s when he had cataract surgery, it is not unusual to find individuals in their 80s with nuclear cataract degrading acuity to the 20/70 to 20/100 level, with near vision preserved at the 20/25 level. Such an individual may not be particularly aware of or bothered by the decreased vision from cataract if he or she does not drive. A nuclear cataract also dulls colors and white significantly. However, patients rarely make this complaint until after the first cataract is removed because the effect on color is noted by comparison with the brightness of colors in the operated eye. Based on the evidence and current literature that categorizes nuclear sclerosis cataract as age-related the examiner found the Veteran's bilateral eye disability was less likely than not that was related to service, including herbicide exposure. In May 2017, the same VA examiner identified that the Veteran had pseudophakia (cataract extraction). He was previously diagnosed with senile nuclear sclerosis cataracts and their extraction was successful. In regards to the foreign body embedded from the November 1971 in-service incident, the examiner found there was no eye disability, scarring, or other residuals. The STRs documented diagnosis and treatment of a "large" foreign body. However, the examiner noted that no descriptor was provided to determine the shape, material, or etiology of the foreign body. Further, the Veteran did not make additional eye complaints and there was no documentation in his separation physical. Moreover, the post-service treatment records did not reveal residual corneal scarring or other evidence of significant ocular trauma in the left (or right) eye resulting from the diagnosis and treatment of a "large" foreign body. Based on STRs and later treatment records, the examiner concluded the foreign body did not penetrate the cornea sufficiently to result in residual corneal evidence. It was more likely than not that the foreign body injury was a slow velocity object that embedded in the anterior surface and removed with no evidence of complication. Further, there was no evidence of residuals from the 1971 left eye injury. Since post-service treatment records did not document evidence of residuals from Veteran's left eye corneal injury, the examiner determined that it was less likely than not that the Veteran's current eye disability was related to the in-service injury. Accordingly, the Board concludes that the evidence weighs against the existence of a nexus between the Veteran's current bilateral eye disability and his in-service incurrence. Secondary Service Connection The Veteran contends that his bilateral eye disability is related to his service-connected diabetes mellitus. See February 2011 statement. Although he can satisfy the first element - a current disability, and the second element - a service-connected disability, he cannot satisfy the nexus between his service-connected disability and current disability. The Board finds secondary service connection is not warranted because there is no nexus. In November 2016, a VA examiner explained that there was no evidence of diabetic retinopathy in the Veteran's treatment records. In May 2017, the same VA examiner found it was less likely than not that the Veteran's eye disability was proximately due to or aggravated by his service-connected diabetes. He stated that many people without diabetes get cataracts, but people with diabetes are 60 percent more likely to develop this eye condition. The examiner noted that the risk factors associated with acquired cataract included age, smoking, alcohol consumption, sunlight exposure, metabolic syndrome, and diabetes mellitus. However, most of these risk factors were environmental stressors that lead to the formation of toxins or the impairment of antioxidants. A dose-response relationship had been demonstrated with ultraviolet-B exposure in sunlight but the size of the risk associated with duration of exposure to diabetes had not been quantified. In addition, people with diabetes also tend to get cataracts at a younger age and have them progress faster. The Veteran was diagnosed with senile nuclear sclerosis cataracts. However, current literature categorizes nuclear sclerosis cataract as age-related. The examiner explained that most cases of cataracts occurred in patients over 60 or in younger individuals who had risk factors such as diabetes mellitus, systemic steroid use, or a history of significant eye trauma. Here, the Veteran was in his mid-60s when he had cataract surgery, which was typical of age-related cataracts. In conclusion, the examiner found there was no evidence to support an alternate etiology for the Veteran's bilateral eye disability other than an age-related cataract, such as treatment at a younger age, having a history of systemic steroid use, or significant eye trauma. Accordingly, the Board concludes that the evidence weighs against the existence of a nexus between the Veteran's bilateral eye disability and his service-connected diabetes mellitus. The Veteran, as a lay person, is competent to report observable symptoms of his asthma. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). However, as a layperson, the Veteran is not competent to comment on its etiology because that is a complex medical question. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In June 2009, the Veteran submitted information on the relationship between diabetes and glaucoma. Although the May 2017 examiner addressed this evidence, the claim for entitlement to service connection for glaucoma is not before the Board. Accordingly, it will not be discussed. In March 2017, the Veteran submitted information on eye complications and the relationship between diabetes and eye disabilities. The May 2017 examiner explained that development of age-related cataract is a painless, progressive process that was highly variable among individuals. The vast majority of cataract extractions were for acquired cataract, with senile or age-related cataract predominating. The examiner noted that the risk factors associated with acquired cataract included age, smoking, alcohol consumption, sunlight exposure, metabolic syndrome, and diabetes mellitus. Most of these risk factors are environmental stressors that lead to the formation of toxins or the impairment of antioxidants. The size of the risk associated with duration of exposure to diabetes has not been quantified. In addition, no studies have been performed to evaluate whether blood sugar control in patients with diabetes correlates with cataract risk. Further, in diabetics, retinopathy is an eye disease that is caused by damage to the small blood vessels in the retina, which may result in the loss of vision. The examiner concluded that there was no evidence in previous reviewed articles and literature or in the March 2017 article submission to support Veteran's claim that his service-connected diabetes mellitus caused or aggravated his cataracts. The Board finds the May 2017 medical opinion, highly probative, as the examiner had the benefit of reviewing the Veteran's entire claims file, which includes the Veteran's available STRs, post-service medical evidence, his medical history, lay statements and testimony. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)). In addition, the examiner's opinion relied on sufficient facts and provided rationale and sound reasoning for the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, it is competent and the most probative evidence of record. For these reasons, the Board concludes that the evidence weighs against the existence of a nexus between the Veteran's bilateral eye disability and any injury or disease during his service, and the Veteran's bilateral eye disability and his service-connected diabetes mellitus. The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds the evidence in this case does not reach the level of equipoise. See Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA ... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Rather, a preponderance of the evidence is against the claim. ORDER Service connection for a bilateral eye disability is denied. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs