Citation Nr: 21026898 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-33 828 DATE: May 4, 2021 ORDER Entitlement to service connection for bilateral (left and right eye) cataracts, including as secondary to Type 2 Diabetes Mellitus, is denied. FINDINGS OF FACT 1. The Veteran, without good cause, failed to report for his VA medical examination scheduled in December 2019 to ascertain whether there is any correlation between his military service and cataracts including in terms of whether caused or aggravated by a service-connected disability, namely, by his Type 2 Diabetes Mellitus. He also did not request to reschedule the examination, so the Board must decide his appeal based on the existing evidence of record. 2. The preponderance of this evidence is against finding that his cataracts were caused or aggravated by his service-connected Type 2 Diabetes Mellitus or are otherwise related or attributable to his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for bilateral cataracts. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1970 to October 1971. This appeal to the Board of Veterans' Appeals (Board) is from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ). In November 2018, the Board remanded this claim back to the RO (AOJ) to obtain additional medical treatment records relevant to this claim and to have the Veteran undergo a VA compensation examination for a medical opinion needed to assist in deciding this claim, including concerning whether his service-connected Type 2 Diabetes Mellitus caused or is aggravating his cataracts . There since has been the required compliance certainly acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The claim was recertified to the Board in June 2020. Entitlement to service connection for cataracts, including as secondary to service-connected Diabetes Mellitus, Type 2 The primary basis of this claim is that the Veteran's cataracts are a complication of, so secondary to, meaning caused or aggravated by, service-connected disabilities especially his Diabetes Mellitus, Type 2 (DMII). 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). Preliminarily, the Board notes that the requested claim development anticipated by the November 2018 remand was undertaken by the AOJ, as directed, but ultimately unsuccessful because the Veteran did not appear for his scheduled VA examination. To this end, in October 2019, the AOJ sent request forms to the Veteran's address of record to obtain information concerning any additional medical treatment records that are outstanding and relevant to his claim. The address used was the same address at which VA previously had mailed correspondence to him. There is no suggestion that any of that correspondence was returned as undeliverable, nor does a request to change his mailing address appear on record. However, no response has been received by VA, to date, and it has been nearly two years now since that request for this needed information. There is no indication he has followed up with VA or Marymount Hospital to obtain these additional records or any potentially relevant records, for that matter. Further, as also directed in the Board's remand of this claim, in October 2019, the AOJ scheduled him for a VA eye examination for a needed medical nexus opinion. He initially requested a rescheduled examination in November 2019, stating he had been out of the country. His examination, accordingly, was rescheduled for in December 2019. But he did not appear for the needed medical evaluation, even then. Moreover, there is no correspondence or other communication from him regarding his failure to appear or providing justifiable explanation ("good cause") for his absence or requesting to again reschedule his examination. The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has held that the burden is on VA to demonstrate that notice was sent to the claimant's last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination. Hyson v. Brown, 5 Vet. App. 262, 265 (1993); see also Connolly v. Derwinski, 1 Vet. App. 566 (1991). Although, in dicta, the Court added that, in the normal course of events, it was the burden of the appellant to keep VA apprised of his whereabouts, and that if he did not do so there was no burden on VA to turn up heaven and earth to find him before finding abandonment of a previously adjudicated benefit. Id. The Court also has held that VA's "duty to assist is not always a one-way street." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence. Id. In the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992)). Notification for VA purposes is a written notice sent to the claimant's last address of record. See 38 C.F.R. § 3.1(q). A pertinent VA regulation, 38 C.F.R. § 3.655, expressly directs the Board to decide a claim based on the available evidence already of record if, as here, the Veteran fails to report for an examination scheduled in response to a claim of entitlement to service connection. See Moody v. Wilkie, 30 Vet. App. 329, 336 (2018); Olson v. Principi, 3 Vet. App. 480, 482-83 (1992); Turk v. Peake, 21 Vet. App. 565, 568 (2008) (also noting that the Veteran has a duty to cooperate in VA's development of his claim). That being the case, the Board will render this decision in accordance with these principles, based on the existing evidence of record. Establishing service connection on a secondary basis requires evidence showing (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. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran's records reflect that he underwent bilateral cataract removal sometime between 2010 and 2012 at Marymount Hospital, associated with the Cleveland Clinic, although the precise date is unclear. He filed his claim in September 2011, so in the interim. In order to establish a current disability, evidence must show he had the claimed condition bilateral cataracts at the time his claim was filed or during the pendency of the claim, even if the condition since has resolved. See, e.g., McLain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). So, given that indication of surgical removal of cataracts (in both eyes), he has established that he has this claimed condition or that he at least did when he filed this claim or sometime contemporaneous to that. However, the Board does not find sufficient attribution of this disorder to his military service, including by way of his already determined to be service-connected DMII. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). On complete review of the record, the Board finds no medical evidence tending to support a relationship between his DMII and any eye diagnoses, to include cataracts. His medical records do not reflect a diagnosis of diabetic retinopathy, cataracts related to DMII, or any treatment notes suggesting or speculating to a relationship or correlation ("nexus") between the two conditions. Notably, the Veteran originally had requested the surgical records from Marymount Hospital in September 2011. VA received a response that he was not treated at the main hospital campus and no records were returned. His claims file contains two VA DMII examinations, from January 2013 and 2014. The second identified peripheral neuropathy as a complication of his DMII, but neither identified cataracts, diabetic retinopathy, or other eye conditions as related. More recent treatment notes confirm the same. But, to further explore this possibility, the Board as mentioned remanded this claim in November 2018 to have the Veteran undergo a VA compensation examination so the examiner could comment on whether the Veteran has/had cataracts as a complication of his DMII, meaning whether his DMII caused or is aggravating his cataracts. Unfortunately, however, as already discussed, he did not report for his VA examination, even after it was rescheduled for in December 2019. Other records however show that, also in December 2019, the Veteran underwent a Yag capsulotomy procedure to correct cloudy vision after eye surgery. But none of the procedure notes, treatment notes leading up to the procedure, or post-procedure medical record suggest his condition was caused or otherwise influenced by his DMII. In a December 5, 2019 note leading up to his procedure, his treating ophthalmologist noted the Veteran had DMII without diabetic retinopathy or clinically significant diabetic macular edema (CSME), as might be anticipated in a patient with DMII. In sum, then, the only evidence suggesting attribution of the Veteran's cataracts to his military service especially by way of his service-connected DMII, are his personal statements that are unsubstantiated. And, while lay evidence may be competent to establish observable symptoms or to support a diagnosis, competent medical evidence is necessary when, as here, the condition at issue is complex, not just simple; the determinative questions of causation and aggravation consequently require medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159(a)(1) and (a)(2). Unfortunately, the Veteran has not been shown to possess any pertinent medical training or credentials that would make him competent to diagnose his cataracts as secondary to DMII. He is not competent to make that determination and, therefore, the required nexus is not established. See Kahana v. Shinseki, 24 Vet. App. 428 (2011) (explaining this is a fact-specific, so case-by-case, determination that is dependent on the type of condition being claimed in terms of whether complex or, instead, simple). Although, for the reasons and bases already discussed, service connection on a secondary basis may not be granted, the Board nonetheless will still consider whether the Veteran may be entitled to service connection, instead, on a direct or presumptive basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection on a direct basis is warranted where there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or a disease, and (3) a nexus, or link, between the current disability and the disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain "chronic" conditions may be awarded service connection alternatively on a presumptive basis if they manifest to a compensable degree within 1 year of the Veteran's separation from service, or if "noted" during his service and then again at a later date, if not attributable to an intervening ("intercurrent") cause. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 49697 (1997)); 38 C.F.R. § 3.303(b). Here, though, the Veteran has not alleged, and the records do not reflect, that cataracts initially developed during his service from March 1970 to October 1971 or manifested to the required minimum compensable degree (meaning to at least 10-percent disabling) within a year of his discharge from service, so by October 1972. His January 1970 service entrance examination noted left eye pain and a tendency to tear excessively. Service treatment records (STRs) show myopia and astigmatism diagnoses in March 1970. He reported painful, blurry vision in July 1971, but the associated STR states that diagnostic indicators were "within normal limits." His October 1971 service separation examination recorded a refractive error only. Indeed, the first indication of cataracts on record comes many years later, in 2010, so nearly 40 years after he left service. That long a lapse of time between conclusion of his service and initial indication of this now claimed disability tends to refute the notion that this condition dates back to his service or is related or attributable to his service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). As such, there is no indication the Veteran experienced cataract onset during his service or that the condition was caused by or otherwise related to his service. Direct service connection, therefore, is not for application. Further, the record does not reflect that his cataracts are or were a chronic (i.e., permanent) condition or that they were noted in service. Therefore, presumptive service connection under 38 C.F.R. §§ 3.307, 3.309(a) also is not for application. So, in conclusion, while the evidence in this case clearly establishes a diagnosis of cataracts, the only evidence suggesting a nexus to the Veteran's service and, more specifically, by way of his service-connected DMII is his own statements, which, unfortunately and as noted, he does not have the medical qualification to offer. Thus, as the preponderance of the evidence is against this claim of entitlement to service connection for cataracts, including as caused or aggravated by his DMII, the benefit-of-the-doubt rule does not apply, and this claim must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.