Citation Nr: 18150782 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 14-06 856 DATE: November 15, 2018 ORDER 1. Entitlement to service connection for an eye disability, diagnosed as bilateral glaucoma and bilateral cataracts, as secondary to service-connected diabetes mellitus, is granted. 2. Entitlement to service connection for hypertension, as secondary to service-connected diabetes mellitus, is granted. REMANDED Entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. The most probative medical opinion of record concludes that the Veteran’s eye disability, diagnosed as bilateral glaucoma and bilateral cataracts, was caused by his service-connected diabetes mellitus. 2. The most probative medical opinion of record concludes that the Veteran’s hypertension was caused by his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for service connection for an eye disability, diagnosed as bilateral glaucoma and bilateral cataracts, on a secondary basis, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for service connection for hypertension, on a secondary basis, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from January 1964 to January 1966. These matters are before the Board of Veterans’ Appeals (Board) on appeal of August 2009 and June 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In July 2014, the Board remanded the Veteran’s claim for further development. By a March 2015 decision, the Board denied the claims. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in April 2016, the Court granted the parties’ Joint Motion for Remand (JMR) to vacate the Board’s decision and remand the case for readjudication in accordance with the JMR. In December 2016, the Board remanded the appeal to obtain updated VA treatment records, as directed by the JMR. These records have been associated with the claims file. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for an eye disability, as secondary to service-connected diabetes mellitus, is granted. The Veteran contends that his eye disability is related to his service-connected diabetes. There is no dispute that he has been diagnosed with cataracts and glaucoma. See VA Treatment Record dated July 15, 2014. Thus, the remaining question is whether the Veteran’s diabetes caused, or aggravated, the claimed eye disability. In October 2016, the Veteran submitted a private medical opinion from Dr. A. A., who opined that his current eye disabilities, to include bilateral cataracts and glaucoma, were more likely than not secondary to his service-connected diabetes. The examiner disagreed with the October 2014 VA examiner who found that these disabilities were not related to diabetes. She cited extensive medical literature indicating that diabetes was a risk factor for the development of both conditions, and that there was an association between glaucoma and diabetes. The Board finds that the October 2016 private opinion reflects a thorough review of the claims file, including the Veteran’s medical history and VA examination reports of record, and contains a sufficient rationale to support its conclusion. It also cites to several medical journal articles which found that individuals with diabetes were more likely to develop glaucoma and cataracts. Therefore, it is afforded more probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board is persuaded by the October 2016 private medical opinion, and finds it to be the most probative medical opinion of record. Thus, the benefit sought on appeal is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. 2. Entitlement to service connection for hypertension, as secondary to service-connected diabetes mellitus, is granted. The Veteran contends that his hypertension is related to his service-connected diabetes. There is no dispute that he has been diagnosed with hypertension. See VA Examination Report dated July 2009. Thus, the remaining question is whether the Veteran’s diabetes caused or aggravated, the claimed disability. In October 2016, the Veteran submitted a private medical opinion from Dr. A. A., who opined that his hypertension was more likely than not secondary to his service-connected diabetes mellitus. She cited a study from the National Institute of Health, which recognized diabetes as a risk factor for the development of hypertension. The private examiner disagreed with the October 2014 VA examiner who found that without findings of diabetic nephropathy, hypertension cannot be a complication of diabetes. The private examiner noted that patients with type II diabetes often develop hypertension before signs of kidney decline. Dr A. A. further explained that the medical evidence of record did not reflect that the Veteran’s hypertension was well-controlled at that time, contrary to the October 2014 VA opinion. The Board finds that this opinion reflects a thorough review of the claims file, including the Veteran’s medical history and the VA examination reports, and contains a sufficient rationale to support its conclusion. It also cites to medical studies which concluded that individuals with diabetes have an increased risk of developing hypertension. Therefore, it is afforded more probative weight. See Nieves-Rodriguez, supra; Stefl, supra. The Board is persuaded by the October 2016 private medical opinion, and finds it to be the most probative medical opinion of record. Thus, the benefit sought on appeal is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. REASONS FOR REMAND Entitlement to a TDIU, to include on an extraschedular basis, is remanded. Where, as here, the Veteran’s service-connected disabilities do not meet the schedular requirements for TDIU set forth in § 4.16(a) and a Veteran has been found to be unemployable, TDIU may be considered on an extraschedular basis. The Board may not do so in the first instance; the Director of the Compensation and Pension Service is charged with making the initial determination as to entitlement to extraschedular TDIU, once that matter is referred by the AOJ and/or the Board. 38 C.F.R. § 4.16 (b). Prior to this decision, the Veteran did not meet the schedular criteria for a TDIU. However, as noted above, service connection has been granted for an eye disability and hypertension, secondary to service-connected diabetes mellitus. As such, the Veteran’s combined rating may be adjusted so as to meet the schedular criteria for a TDIU once the disability ratings and effective dates for these conditions are implemented. The Veteran has submitted a September 2016 private opinion of a vocational expert, which indicates that he is precluded from securing and maintaining substantially gainful employment due to his service-connected disabilities. This evidence is sufficient to raise the probability of entitlement to TDIU on an extraschedular basis. Therefore, if the Veteran continues to not meet the schedular criteria after implementation of the ratings assigned for the eye disability and hypertension, as granted herein, the matter of entitlement to a TDIU must be submitted to the Director of the Compensation and Pension Service for extraschedular consideration. The matter is REMANDED for the following action: 1. Assign initial disability ratings and effective dates for the newly service-connected eye disability and hypertension that are granted by the Board herein. 2. If the Veteran continues to not meet the schedular criteria for a TDIU, after the assignment of disability ratings for the now service-connected eye disability and hypertension, refer the claim of entitlement to a TDIU to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of a TDIU on an extraschedular basis. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel