Citation Nr: 21005056 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-34 530 DATE: January 28, 2021 ORDER Service connection for an eye disability, to include bilateral cataracts and optic neuropathy, is denied. FINDING OF FACT The preponderance of the competent medical evidence of record weighs against finding that the Veteran has eye disabilities that are causally related to his service or service-connected type II diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for an eye disability, to include bilateral cataracts and optic neuropathy, secondary to service-connected type II diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1970 to December 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision. This matter was previously remanded by the Board in May 2018 for further evidentiary development. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Service connection for an eye disability, to include bilateral cataracts and optic neuropathy secondary to service-connected type II diabetes mellitus. Legal Criteria In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a) (2019). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all of the evidence in the claims file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). Factual Background & Analysis The Veteran contends that he has bilateral cataracts that are secondary to service-connected type II diabetes mellitus. On March 2013 VA examination the Veteran was diagnosed with right eye cataract and a pseudophakic lens implant. The Veteran stated that the condition began in March 2011, he was also hit in the left eye with a fire hose in 1976. He has blurred vision in both eyes and his vision flashes in and out in the left eye, the condition has improved in the left eye and is the same in the right eye. A February 2016 correspondence from the Veteran’s private optometrist states that the Veteran is “pseudophakic in the left eye with traumatic optic neuropathy; current vision in the left eye is secondary to the traumatic optic neuropathy which may be related to injury in 1976.” On June 2019 VA examination, the examiner diagnosed cataract, right eye, pseudophakia, left eye, and myelinated nerve fiber in both eyes. The examiner opined that the Veteran’s eye disabilities are less likely than not proximately due to or the result of service-connected type II diabetes mellitus. The examiner provided the following rationale: “Cataract right eye is age normal for veteran and is not due to diabetes. There is no evidence of abnormally fast or dense formation of cataract, which would be expected with a cataract formed from diabetes. Left eye pseudophakia occurred after traumatic cataract of left eye with history of trauma in 1976. Bilateral retinal nerve fiber layer myelinated is a congenital condition with no visual impact. For all above conditions, no nexus is established. Right eye cataract right eye, left eye pseudophakia, and bilateral retinal nerve fiber layer myelinated are less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s diabetes.” The examiner also opined that it is less likely than not that any eye disabilities were aggravated beyond their natural progression by service-connected type II diabetes mellitus. The examiner provided the following rationale: “Cataract right eye is age normal for veteran and is not due to diabetes. There is no evidence of abnormally fast or dense formation of cataract, which would be expected with a cataract formed from diabetes. Left eye pseudophakia occurred after traumatic cataract of left eye with history of trauma in 1976. Diabetes has no impact on synthetic implant. Bilateral retinal nerve fiber layer myelinated is a congenital condition with no visual impact and it is not medically possible for this congenital conditions to be impacted by diabetes.” After a thorough review of the evidence, the Board finds that a preponderance of the competent medical evidence of record weighs against finding that the Veteran’s eye disabilities are proximately due to or aggravated by service-connected type II diabetes mellitus. In that regard, the June 2019 VA examiner found no evidence of abnormally fast or dense formation of cataracts which would be expected if they were caused by service-connected type II diabetes mellitus. Moreover, the examiner further concluded that bilateral retinal nerve fiber layer myelination is a congenital condition with no visual impact and that “it is not medically possible” for this congenital condition to have been impacted by his diabetes. (Continued on the next page)   The Board acknowledges the Veteran’s lay assertions that these disabilities are causally related and that service connection under a secondary service connection theory of entitlement is warranted. However, there is no competent medical evidence which substantiates a nexus or otherwise suggests a causal relationship. 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). Lay testimony and opinions are not competent to provide the requisite cause of this disability because this determination requires medical expertise and training which the Veteran has not been shown to possess. 38 C.F.R. § 3.159 (a)(1); see Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore, lay assertions that the Veteran’s eye disabilities are related to service-connected type II diabetes mellitus are not considered to be competent because the Veteran is not medically qualified to provide evidence regarding matters requiring medical expertise, such as an opinion as to the cause of a complex disability such as cataracts (which has observable symptoms but which can have multiple possible non-observable causes that may interact over a period of decades). In sum, there has not been any competent medical evidence submitted which provides a basis for finding that the Veteran’s eye disability is related to service or is secondary to service-connected type II diabetes mellitus. Consequently, the preponderance of the evidence is against a finding of service connection and the appeal must be denied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.