Citation Nr: 21062531 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 14-36 290 DATE: October 7, 2021 ORDER Entitlement to service connection for a disability of the eyes, to include cataracts, is denied. FINDING OF FACT A chronic disability of either eye was not manifest during service; and the preponderance of the evidence fails to establish that a present eye disability is etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection a disability of the eyes have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1956 to September 1959 and from September 1962 to September 1965. He had additional periods of reserve service between January 1975 and June 1998 thereafter. This appeal to the Board of Veterans' Appeals (Board) is from a February 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2016, the Veteran testified before a Decision Review Officer (DRO) at the RO. The Veteran and his spouse testified before the undersigned at Travel Board Hearing in January 2018. Transcripts of these hearings are of record. This matter was remanded in March 2018 and July 2020 for further development. 1. Entitlement to service connection for a disability of the eyes, to include cataracts. The Veteran seeks service connection for disabilities of the eyes. He asserts that his disabilities are the result of an in-service injury which scratched his right cornea during his first period of service in approximately 1957/1958. Alternatively, he maintains that he suffers from posterior subscapular cataracts that were caused by in-service radiation exposure. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For periods of ACDUTRA, service connection may be granted for disability resulting from injuries or diseases incurred or aggravated during such periods. For periods of INACDUTRA, service connection may be granted for disability resulting only from injuries incurred or aggravated during such periods, not disability resulting from diseases. 38 U.S.C. § 101(22), (24); McManaway v. West, 13 Vet. App. 60, 67 (1999) (quoting Brooks v. Brown, 5 Vet. App. 484, 485 (1993) (discussing 38 U.S.C. §§ 101(24), 1131) (stating that the law "permits service connection for persons on inactive duty (training) only for injuries, not diseases, incurred or aggravated in line of duty"). Congenital or developmental defects, such as refractive error of the eye, are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). VA General Counsel Precedent Opinion has held that service connection may be granted for disease, but not defects, which are congenital, developmental, or familial in origin when the evidence establishes the disorder was incurred in or aggravated by active service. As to congenital or developmental defects, service connection may be granted for disability which is shown to have resulted from a defect which was subject to a superimposed disease or injury during service. VAOGCPREC 82-90 (Jul. 18, 1990). VA regulations provide for service connection for radiation-exposed veterans under three different legal bases. First, there are diseases that are presumptively service-connected specific to "radiation-exposed veterans" under 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309 (d). Second, service connection can be established under 38 C.F.R. § 3.303 (d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303 (d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). VA examinations establish diagnoses of right eye pseudophakia, left eye cataract, and retinal scarring. Current disability is thereby established. As to in-service incurrence, treatment records from the Veteran's first period of service have been deemed unavailable. Nevertheless, the records in evidence note repeat diagnoses for refractive error and defects of the eye, corneal injury in 1958, and a diagnosis of cataracts in May 1998 during a period of INACDUTRA. Personnel records also confirm that the Veteran was exposed to radiation while in-service between May and September 1957. In-service injury is conceded. The remaining question pertains to a nexus. VA examination opinions were obtained in October 2018 and May 2021. The 2018 examiner opined that the Veteran's current disabilities were unrelated to service. The 2021 examiner confirmed that none of the Veteran's current disabilities were etiologically related to service. Instead, his left eye cataracts were found to be related to age and his remaining disabilities were residuals of his non-service-connected right cataracts removal. The examiner acknowledge the Veteran's in-service history of corneal abrasion and scarring as well as radiation exposure. However, as to the abrasion and the resulting scarring, per clinical and examination records, the examiner explained that both conditions fully resolved long before the period on appeal without residuals. Moreover, per the examiner, the combined medical record did not support it was causative of the Veteran's former right eye cataracts. With respect to the Veteran's in-service radiation exposure, the examiner explained that radiation is clinically known to cause only one kind of cataract, which is posterior subscapular cataracts. The examiner then clarified that the records was negative for a diagnosis other than nuclear cataracts. The examiner acknowledged the record lacked documentation of the specific kind of cataracts the Veteran suffered from in his right eye prior to surgery. Nevertheless, per the examiner, were the Veteran to have experienced radiation so severe as to cause subscapular cataracts, the condition would have manifested bilaterally, which, here, it did not. As to retinal detachment and impaired vision, the examiner explained these are medically known side effects of cataract removal. Moreover, in the instant case, the timeline of their manifestation supported them being due to surgery. Finally, following detailed consideration of the record, and examination, both examiners opined against the presence of congenital disease or defect. The Board finds these opinions when combined are highly probative and well rationalized against the evidence of record. The positive evidence of record is of less probative value. As discussed in the Board remands, the positive statements of record are insufficient to form the basis of a grant of service connection. Although Dr. D.L., O.D., noted the Veteran's reports of in-service injury and diminished vision no nexus opinion was provided correlating the two. To the contrary, Dr. L. indicated being unable to determine whether the Veteran's eye injury resulted in his current disabilities. Similarly, although Dr. L. indicated the Veteran's cataracts could "possibl[y]" be due to radiation exposure, he also emphasized there being "no way to know for sure." Given the speculative nature of these statements, they are accorded no probative weight. See Tirpak v. Derwinski. 2 Vet. App. 609 (1992). Additionally, of record, is a statement from a Dr. H.Y., M.D., indicating that cataracts generally can be due to age or trauma. However, Dr. Y., specifically refused to opine as to the cause of the Veteran's cataracts. As a result, this statement is also accorded no probative value. Lastly, a statement by a Dr. S. S., D.O. did not address nexus. The Board has considered a medical article cited to by the Veteran's representative. The article provides general information about corneal abrasions. Notably, the representative points out that deep corneal abrasions could result in scarring that could in turn result in serious vision impairment. The Court has held that "generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive." Mattern v. West, 12 Vet. App. 222, 228 (1999). Here, the medical article of record is of little probative value, when compared with the examination opinions, because the medical professionals who authored the article did not establish a nexus as to this Veteran's specific medical history. Further, contrary to the implications made by the representative, there is no indication that the Veteran experienced deep corneal abrasions in service. The above discussed record shows that the abrasions were mild or slight and left no residuals. The Board again emphasizes that even the Veteran's private physicians were either unable or unwilling to correlate his current disabilities to service. The Board also acknowledges that the Veteran is competent to report observable symptoms. While the Veteran is competent to report observable symptoms, the issue of nexus in this case is a complex medical question, which is not something that can be determined by mere observation. The question of the cause of the Veteran's symptoms or any medical association with service is not an observable fact; it requires clinical testing and/or knowledge to assess and diagnose the underlying condition and training to make the appropriate interpretations and conclusions for causation or association. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board finds that the Veteran's statements are not competent evidence as to nexus and finds the VA examiners combined opinions are the most probative evidence of record. Finally, the Board the finds that the Veteran may not prevail under the presumptive provisions governing service connection for chronic diseases. See 38 C.F.R. §§ 3.303 (b), 3.307, 3.309 (a). Although such diseases include disabilities of the central nervous system, service connection would not be warranted unless current eye disabilities manifested to a compensable degree within a year of the Veteran's release from active service, or if the Veteran exhibited a continuity of symptomatology since that time. Here, there is no competent evidence of record which demonstrates that any of the Veteran's current eye disabilities manifested to a compensable degree within one year from discharge, and there is no competent evidence, per the record and examiners, demonstrating a continuity of symptoms following service. In conclusion, the Board finds that service connection for a disability of the eyes is not warranted. The Board finds the combined opinions well rationalized against the clinical, examination, diagnostic, and lay evidence of record. As such, the opinions are probative evidence against the claim. There are also no competent probative opinions of record correlating any disabilities to service. The preponderance of the evidence is against the claim. Entitlement to service connection for disabilities of the eyes is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. L. Burroughs, 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.