Citation Nr: 21006681 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-19 158 DATE: February 4, 2021 ORDER Service connection for a bilateral eye disability, to include bilateral cataracts status post removal and insertion of bilateral replacement intraocular lens (pseudophakia) is granted. FINDING OF FACT The Veteran has a current eye disability, to include bilateral cataracts status post removal and insertion of bilateral replacement intraocular lens (pseudophakia) and the evidence of record is in relative equipoise regarding whether it is causally related to service and the Veteran’s service-connected diabetes mellitus. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for the Veteran’s current bilateral eye disability, to include bilateral cataracts status post removal and insertion of bilateral replacement intraocular lens (pseudophakia) have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the U.S. Air Force from August 1956 to August 1960, and from November 1960 to August 1982, including service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned at a hearing held in June 2018; a transcript of that hearing is of record. In January 2019, the Board remanded this appeal for further development, including scheduling the Veteran for a VA examination to evaluate his current eye disability. To the extent that the directed VA examination report was procured in December 2019, the Board finds that substantial compliance with its January 2019 remand directives has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902. (2020). See 38 U.S.C. § 7107(b) (2020). Service connection for a bilateral eye disability, to include bilateral cataracts status post removal and insertion of bilateral replacement intraocular lens (pseudophakia) and as secondary to the Veteran’s service-connected diabetes mellitus, is granted. The Veteran contends that the onset of his current bilateral eye disability occurred during his active military service, and for the reasons set forth below, resolving all reasonable doubt in favor of the Veteran, the Board agrees. Service connection is warranted where the evidence of record demonstrates that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty during active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge may be found to be service-connected where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Service connection for a disability requires competent and credible evidence of the following: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. See Hickson v. West, 12 Vet. App. 247, 252 (1999). Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disability. See 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that (1) a current disability exists; and (2) the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to a service-connected disability. See Velez v. West, 11 Vet. App. 148, 158 (1998). In the absence of a superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, hyperopia, presbyopia, and astigmatism, even if visual acuity decreased in service, as those are not a diseases or injuries within the meaning of applicable legislation relating to service connection. See id. Thus, VA regulations specifically prohibit service connection for refractive errors of the eyes unless the defect was subjected to a superimposed disease or injury that created additional disability. See VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45,711 (1990). Where an approximate balance of positive and negative evidence exists regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must weigh against the Veteran’s claim in order for it to be denied. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). For the reasons set forth below, the Board finds the evidence of record to be in relative equipoise as to whether the Veteran’s current bilateral eye disability is causally related to his active military service, and that he is therefore entitled to service connection, to include as due to his service-connected diabetes mellitus and to his in-service eye exposure to jet fuels. See 38 C.F.R. §§ 3.303(d), 3.310. The Veteran contends that the onset of his current bilateral eye disability occurred during his active military service immediately following his exposure to the spillage of jet fuel in connection with his twenty-six years of active military service as an aircraft fuel specialist. In addition, the Veteran also contends that his current eye disability is causally related to his service-connected diabetes mellitus. The Board notes that in April 2002, the Veteran was awarded service connection for diabetes mellitus, and that the medical evidence of record indicates that the Veteran has been diagnosed with the following eye conditions: (1) dry eye syndrome of the bilateral lacrimal glands; (2) bilateral asteroid hyalosis; and (3) bilateral cataracts status post removal and insertion of bilateral replacement intraocular lens (pseudophakia). Accordingly, the Veteran has established that he suffers from a current bilateral eye disability, and the Board must determine whether the Veteran’s current bilateral eye disability is causally related to his service-connected diabetes mellitus. See 38 C.F.R. § 3.310. In addition, as the Veteran has testified that he suffered multiple eye injuries during his active military service, the Board must also determine whether the Veteran’s current bilateral eye disability is causally related to his in-service eye exposure to jet fuel in connection with his military occupational specialty (MOS) as an aircraft fuel specialist. The Veteran has submitted numerous lay statements describing his in-service eye exposure to jet fuel, including the following: (1) the Veteran’s March 2017 Form 9 stating that he worked as an aircraft fuels specialist for twenty-six years during his active military service in the U.S. Air Force, which included exposure to the “horrors of combat and jet aircraft engines,” an explosion at a fuel farm in Cam Rham Bay, Vietnam, and being “covered in jet fuel on more occasions than [he] can remember,” having had jet fuel in his mouth, eyes, and ears; (2) the Veteran further contends that he was treated during service for corneal abrasions; (3) during his December 2019 VA eye examination, the Veteran reported as follows: (a) that in 1961, 1964, and 1969 he was exposed to jet fuel in both eyes which caused a corneal abrasion, blurred vision, eye irritation, and eye pain, and that he continues to experience eye pain “around his eye sockets;” (b) he has suffered from eye “floaters” ever since his jet fuel incident during service; (c) he experiences eye strain when driving at night and is “not able to see;” (d) he suffers from calcium deposits as a result of his service-connected diabetes mellitus; (e) he treats his eye condition with eye drops for inflammation and infection; and (f ) he had cataracts surgically removed in 2014/2015 and in 2017 as well as a post-cataract laser posterior capsulotomy. In addition, the Veteran testified at his June 2018 Board hearing as follows: (1) during his active military service in aircraft refueling, the Veteran experienced “several cases of fuel spillage [in his] eyes because of equipment malfunctioning or hoses that were leaking or disconnected;” (2) on at least a couple of occasions, he was immediately treated at the hospital for his eye injuries; (3) post-service, his vision acuity worsened, to include occasional blurred vision and spotty objects, especially at night, as well as floaters appearing as black and white spots in his vision; (4) the results of his bilateral cataract surgery have been “okay;” and (5) he continues to suffer from bilateral calcium deposits The Veteran also contends that the medical treatise evidence he has submitted into the record indicates that diabetes, heart disease, and hypertension can all increase the risk of cataracts, as can exposure to certain herbicide agents, such as Agent Orange. The Board finds that the Veteran is competent to describe the observable, non-medical symptoms of his bilateral eye disability, such as blurred vision, floaters, pain, dryness, and vision loss, see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), and further finds his lay statements to be credible because they are consistent throughout the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (citations omitted). In addition, the Board finds that the current record contains sufficient competent medical evidence to establish that the Veteran suffers from a current diagnosis of a bilateral eye disability. Accordingly, the Board finds that the Veteran currently has a bilateral eye disability, and the threshold element for service connection, a current disability, has been established. Turning to an in-service injury, the Board finds that the Veteran is competent to describe his exposure to jet fuel spills and the resulting eye symptoms, such as pain, floaters, dryness, and altered vision. See Falzone v. Brown, 8 Vet. App. 398, 406 (1995). In addition, the Board finds the lay statements regarding his in-service injury to be credible because, as stated above, such statements have been consistent throughout the record and are confirmed by the evidence of record regarding his military service. See Caluza, 7 Vet. App. at 511. In addition, the Veteran’s service treatment records (STRs) confirm the following: (1) in June 1961, he was treated for a left eye corneal abrasion and conjunctivitis with eye drops and an eye patch; (2) in February 1964, he was treated for “something in [the] right eye” with irrigation and eye drops; and (3) in August 1969, he was treated for a foreign body in the right eye and corneal abrasion with removal of foreign body with cotton swab, neosporin, and an eye patch. The Board finds the Veteran’s contentions regarding his in-service injury to be credible because they are consistent with other evidence in the record, as well as with the places, types, and circumstances of his service. See Caluza, 7 Vet. App. at 511. Accordingly, because the Veteran has provided competent and credible testimony, the Board finds that he has established an in-service injury to the bilateral eyes. Finally, turning to the establishment of a nexus, the Board finds the evidence of record to be in relative equipoise regarding the causal relationship between the Veteran’s military service and his current bilateral eye disability. In December 2019, the Veteran was afforded a VA eye examination which culminated in a report concluding that the Veteran’s current bilateral eye disability is at least as likely as not to be caused by or a result of his reported in-service injuries as (1) the Veteran’s description of his eye exposure to jet fuel “could very well have caused permanent damage to the [eye] tissue resulting in chronic irritation; and (2) the Veteran’s bilateral eye symptoms are consistent with the December 2019 VA eye examination; thus, (3) it is at least as likely as not that jet fuel getting into the eyes could have caused permanent damage to the Veteran’s bilateral eye soft tissue. In addition, the December 2019 VA eye examination report further found it to be at least as likely as not that the Veteran’s bilateral eye cataracts are proximately due to or the result of the Veteran’s service-connected diabetes mellitus, as “diabetes does in fact cause early-onset cataract development.” Moreover, the report further concluded as follows: (1) the Veteran was unlikely to have had “clinically significant cataracts” during his active military service; (2) although cataracts are largely age-related, diabetes can in fact cause them to manifest earlier; and (3) the current severity of the Veteran’s bilateral eye condition was at least as likely as not to have been aggravated beyond natural progression by the Veteran’s service-connected diabetes mellitus. In addition, the Veteran has submitted private treatment records dated August 2019 from his private ophthalmologist (Dr. P) confirming the Veteran’s diagnosis of the following: (1) “type 2 diabetes without complication; distributed on the right inferior peripheral cornea and left temporal peripheral cornea;” (2) posterior capsular opacification; and (3) crystalline deposits (floaters). Dr. P further noted that the Veteran reported experiencing floaters, blurred vision, and mild diabetic symptoms. In light of the foregoing, the Board finds that the Veteran’s lay statements regarding the onset of his symptomatology during service, in combination with Dr. P’s diagnoses, and the December 2019 VA examination report findings that the Veteran’s current bilateral eye disability is at least as likely as not related to his in-service eye injuries and service-connected diabetes mellitus, establishes at least an approximate balance of positive and negative evidence regarding the onset of the Veteran’s current bilateral eye condition. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the evidence of record is in relative equipoise as to whether the Veteran’s bilateral eye disability as likely as not had its onset during his active military service, as his lay statements regarding his in-service injury and the onset of his symptoms are entitled to significant probative value due to their consistency and credibility. Therefore, the Board finds that the application of the benefit of the doubt rule is warranted in this case, as there is at least an approximate balance of positive and negative evidence regarding the merits of issues material to the determination of the matter. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for bilateral eye disability is warranted in this case. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale 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.