Citation Nr: 21002474 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 04-22 282 DATE: January 13, 2021 ORDER Entitlement to service connection for an eye disability manifested by pseudophakia and or bilateral cataracts is denied. FINDING OF FACT The Veteran’s disability manifested by pseudophakia and or bilateral cataracts is not secondary to service-connected diabetes mellitus, and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a disability manifested by pseudophakia and or bilateral cataracts have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1970 to February 1972, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The claim has a long appellate history. Of note, in March 2019, the Board bifurcated the Veteran’s claim for a bilateral eye disorder. In doing so, the Board granted service connection for hypertensive retinopathy, denied service connection for glaucoma suspect and for dry eye syndrome, and remanded the current claim for service connection for any disabilities manifested by pseudophakia and or bilateral cataracts. The claim for service connection for any disabilities manifested by pseudophakia and or bilateral cataracts was most recently before the Board in June 2020. At that time, the Board remanded the claim to allow the AOJ to obtain a copy of a December 27, 2019 Veterans Evaluation Services (VES) VA contract examination and associate it with the claims file. As noted by the October 2020 appellate brief, the previous reference to the December 27, 2019 VA contract examination, separate from the examinations already of record, was in error and all relevant examinations have been associated with the record. Entitlement to service connection for a disability manifested by pseudophakia and or bilateral cataracts is denied. The Veteran contends that his eye disability manifested by pseudophakia and bilateral cataracts are related to his active service. See November 2002 VA 21-4138. He also contends that his service-connected diabetes mellitus caused or aggravated these conditions. See June 2003 VA 21-4138; April 2004 VA Form 9. Alternatively, the Veteran, by his representative, asserted that his disability may be directly related to presumed in-service herbicide agent exposure. See September 2011 appellant’s brief; see also January 2013 Board remand. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which 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). Service connection for certain disabilities may be presumed for those exposed to particular herbicide agents. Veterans exposed to Agent Orange or other listed herbicide agents are presumed service-connected for certain conditions even if there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Previously, the Board noted that the Veteran likely was exposed to an in-service herbicide agent while on active service in the Republic of Vietnam between September 1970 and September 1971. See 38 C.F.R. § 3.307 (a)(6)(iii) (2018). See July 2013 Board remand; March 2019 Board decision. Turning to the evidence of the case, the service treatment records are silent for eye conditions other than defective distance vision. In fact, the January 1972 separation examination noted no pertinent eye or ophthalmoscopic abnormalities although the defects and diagnosis summary included myopia (nearsightedness). Post-service, the Veteran was first noted to have cataracts in January 1997 private treatment records. See also December 2002 21-4142 (reporting that treatment for cataracts beginning in September 1997). The Veteran underwent subsequent surgery for the condition as well as numerous other surgeries to address detached retinal conditions and artificial lens implantation. See e.g. March 1997 and March 1998 private treatment records. The Veteran has been afforded multiple VA examinations during the pendency of this appeal. In the May 2010 VA eye examination, the examiner noted a medical history which listed the earliest date of cataracts as February 1997, with subsequent bilateral retinal detachment and repositioning of the left intraocular lens. The examiner also noted a diagnosis of diabetes mellitus without retinopathy, and bilateral pseudophakia associated with cataracts, among other diagnoses. The examiner explained that pseudophakia is the term for artificial lens implantation in patients who have had cataract surgery. The examiner opined that the Veteran’s pseudophakia and or cataracts are not related to active service. The examiner reasoned that there were no eye conditions in service. Further, the examiner noted that cataracts and the pseudophakia are caused by diabetes and aging. However, the examiner indicated that he was unable to differentiate between the two causes. Thus, the examiner concluded that he could not resolve the issue of whether the Veteran’s service-connected diabetes mellitus caused this condition. In June 2011, the Veteran was afforded another VA eye examination by the same examiner who conducted the May 2010 examination. The examiner noted no diabetic retinopathy, but hypertensive retinopathy in April 2004 VA treatment records. The examiner reiterated that he could not provide an opinion without mere speculation on the etiology of the Veteran’s cataract as it relates to his service-connected diabetes for either proximate causation or aggravation. In doing so, the examiner noted that cataracts is a natural aging process of the lens that can progress at increased rate with various diseases, including diabetes mellitus. In November 2011, VA obtained an addendum opinion as to secondary service connection by the same VA examiner who authored the previous reports. The examiner reiterated his previously stated inability to provide an opinion without speculation. However, the examiner did note that cataracts are not caused or aggravated by insulin. The examiner reasoned that the physician desk reference is silent on insulin related development or aggravation of cataracts. The Veteran was afforded another VA eye examination with a different examiner in March 2013. The examiner stated that an opinion on whether the Veteran’s eye disability manifested by cataract and subsequent pseudophakia could not be provided without mere speculation. In doing so, the examiner noted that a specific type of cataract, posterior subcapsular cataract, is strongly associated with diabetes, as well as other conditions. The examiner further indicated that there is no evidence of this type of cataracts in the Veteran’s records. Current examination showed that there was no hypertensive or diabetic retinopathy. Nonetheless, the examiner could not opine on secondary service connection. The examiner did state that the Veteran’s pseudophakia and cataracts are not related to service or exposure to Agent Orange. In a September 2013 opinion, the examiner opined negatively on the matter of the Veteran’s hypertensive retinopathy and glaucoma as it related to diabetic medication. A subsequent January 2014 VA medical opinion also opined on the Veteran’s hypertensive retinopathy and glaucoma suspect as related to service, including presumed in-service exposure to Agent Orange and secondary to service-connected diabetes mellitus. Neither opinion discussed the Veteran’s cataract and pseudophakia. Pursuant to the Board’s April 2015 VHA opinion request, a VHA ophthalmologist opined in July 2017. The examiner opined that it is less likely than not that the Veteran’s cataract and pseudophakia were related to military service as there is no evidence relating development of cataracts to exposure to Agent Orange in the medical literature searched. However, the examiner also stated that he could not provide an opinion concerning whether the service-connected diabetes mellitus caused or aggravated the Veteran’s pseudophakia and or bilateral cataracts because he could not determine the kind of cataract affecting the Veteran. The examiner explained that most cataracts are nuclear sclerotic, and age related. Cortical lenticular and posterior subcapsular cataracts comparatively more commonly found in diabetic individuals. The examiner indicated that there was no documentation of the type of cataract the Veteran had prior to his surgery. Most recently, VA obtained a January 2020 medical opinion. The examiner provided an unfavorable opinion on whether the Veteran’s cataract and pseudophakia was related to service. The examiner noted that the Veteran developed cataracts in his late 40s and the condition appears age related. Moreover, the lack or minimal presence of diabetic retinopathy makes it unlikely that the Veteran’s diabetes mellitus caused or aggravated his retinal detachment and cataracts. Severe diabetic retinopathy can cause retinal detachment, but the weak zonules which complicate cataract are not related to diabetes itself. Given the lack of diabetic retinopathy, the examiner opined against a causal nexus. For the reasons that follow, the Board finds that service connection is not warranted. Initially, the Board notes that although the Veteran is presumed to have been exposed to herbicide agents. However, the presumption for service-connection for certain conditions due to herbicide agent exposure does not include cataracts and pseudophakia. Thus, a statutory presumption is not granted secondary to herbicide exposure. Nonetheless, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Considering direct service connection, the Board assigns great probative weight to the May 2010, and March 2013 VA examination reports and the July 2017 VHA opinion. The examiners reviewed the Veteran’s claims file in its entirety and considered the Veteran’s reported history. After considering the record, the examiners concluded that the Veteran’s cataracts and subsequent pseudophakia were not causally related to active duty, including herbicide agent exposure. Each examiner noted that there were no complaints of any eye conditions that began in service. The Board also notes that the Veteran has not asserted that his condition began in service. Further, the examiners opined that cataracts and pseudophakia were caused by age or other conditions. Finally, the July 2017 VHA opinion indicated that the medical literature did not support a relationship between the development of cataracts and subsequent pseudophakia to exposure to Agent Orange. The Board finds the rationales, collectively and individually, provided in these opinions are thorough, and cogent and thus persuasive. To the extent the Veteran and his representative contend otherwise, their opinions are not probative. Although the Veteran is competent to report eye symptoms, he possesses neither the medical training nor expertise to comment on the etiological relationship between his cataracts and pseudophakia to any in-service events, including herbicide agent exposure. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The question is medically complex and beyond simple observations as it requires knowledge of the ophthalmological disease progression, anatomical relationships, and physiological functioning. The diagnoses of such require complicated diagnostic tests and thus determining the presence and etiology of such are outside the competence of the Veteran in this case, as he has not been shown by the evidence of record to have had medical training or skills. Finally, the Board notes that a medical article or treatise generally can be probative evidence when combined with an opinion of a medical professional if the medical article or treatise deals with generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). Here, the article cited by the Veteran’s representative details a different condition (retinopathy) and is not sufficient to support a causal nexus as it relates to the Veteran’s cataracts and or pseudophakia. Thus, the Board’s affords the VA medical opinion more probative weight compared to the lay evidence of record, including the Veteran’s statements, his representative’s arguments, and the medical articles cited therein. Turning to the Veteran’s assertion that his cataracts and pseudophakia are secondary to service-connected diabetes mellitus, the preponderance of the probative evidence weighs against this contention. Although the Veteran has consistently contended that his cataracts and pseudophakia are due to his diabetes, determining the etiology of these conditions is medically complex determination, and the Veteran is not qualified to provide an opinion on such. Further, there is no competent medical evidence of record that establishes such a causal relationship or nexus to his service-connected diabetes mellitus. Undoubtedly, the Veteran’s diabetes mellitus has been raised as a possible cause of his cataracts in the May 2010, June 2011, November 2011, and March 2013 VA opinions, as well as the July 2017 VHA opinion. However, none of the opinions could opine on the relation of his disability to diabetes mellitus without mere speculative. The examiners also indicated that there were physical findings that would support a connection to diabetes mellitus, which included certain types of cataracts, which were not documented in the Veteran’s treatment records. Although the Board notes that this is due to the general lack of documentation as to the type of cataracts the Veteran had prior to his surgery, this crucial step in determining etiology in favor of the Veteran’s claim is nonetheless absent. Moreover, the January 2020 VA medical opinion is unfavorable on the question of secondary causation and aggravation. The opinion was provided by a competent medical professional, a Doctor of Optometry, and supported by a clear rationale which included consideration of the evidence and medical principles at hand. Thus, the opinion remains the sole competent and probative opinion on this particular matter. Based on the foregoing, the probative evidence does not support an etiological relationship between the Veteran’s cataracts and pseudophakia and service, to include herbicide agent exposure therein; or, between the current eye conditions and the service-connected diabetes mellitus. Accordingly, the benefit-of the-doubt rule is not for application. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102. Thus, the claim must be denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.