Citation Nr: 21028041 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 12-35 931 DATE: May 10, 2021 ORDER Entitlement to service connection for left eye cataract is granted. FINDING OF FACT The evidence is at least in equipoise with regard to showing that the Veteran's left eye cataract disability is etiologically linked to his in-service blunt trauma to the left eye. CONCLUSION OF LAW The criteria for entitlement to service connection for left eye cataract are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1958 to August 1964, with additional service in the New Jersey Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). This matter originally came to the Board on appeal from an April 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. This appeal was previously before the Board in April 2016, when the Board denied the claim on appeal. The appellant appealed the denial to the Court. In February 2017, the Court issued a memorandum decision that vacated the April 2016 Board decision and remanded the issue for readjudication consistent with the instructions outlined in the memorandum decision. The appeal then returned to the Board for further appellate review; in October 2017, the Board remanded the matter for additional development consistent with the directives of the Court. Specifically, the Court directed that the Board must revisit the question of whether a VA examination should be provided to the Veteran to assist with this claim, and the Board's October 2017 remand found that a VA examination was warranted. The Board remanded for the VA examination, which was completed in February 2018. The issue on appeal was previously before the Board as "Entitlement to service connection for residuals of a left eye injury." The issue broadly encompassed all aspects of left eye disability that the Veteran asserted to be the result of an in-service left eye injury. Significantly, during the processing of the Board's October 2017 remand, the RO issued a February 2019 rating decision granting service connection for retinal tear and lattice retinal degeneration, residuals of a left eye injury. (The Agency of Original Jurisdiction (AOJ) reiterated this grant in a January 2020 rating decision.) That aspect of the appeal issue, concerning retinal tear and lattice retinal degeneration, has therefore been resolved with a complete grant of the benefit sought. Only a remaining portion of the broader prior appeal issue remains in appellate status, as the Veteran has been diagnosed with a left eye cataract (postoperative / removed) for which service connection has not been granted. The issue remaining for the Board to resolve is whether the Veteran is entitled to service connection specifically for a left eye cataract. The Board issued a decision denying service connection for left eye cataract in April 2019. The appellant appealed the denial to the Court. In March 2020, the Court issued a memorandum decision that vacated the April 2019 Board decision and remanded the issue for readjudication consistent with the instructions outlined in the memorandum decision. In October 2020, the Board remanded the case to the AOJ for development to ensure compliance with the directives of the March 2020 memorandum decision. The appeal has now returned to the Board for further appellate review. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a January 2016 Board video hearing, and a transcript of this hearing is of record. 1. Entitlement to service connection for left eye cataract is granted. Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish entitlement to service connection for a disability there must be evidence of: (1) a present disability for which service connection is sought; (2) incurrence or aggravation of a disease or injury in service; 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, 1166-67 (Fed. Cir. 2004). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability, by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that it has reviewed all of the evidence of record in the Veteran's claims file with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Court's March 2020 Memorandum Decision found that "[i]n light of the award of service connection for a left eye retinal tear with lattice degeneration, ... the record reasonably raised the issue of service connection for the left eye cataract as secondary to the other, service-connected eye disabilities." The Court directed that "the Board must address whether further development would corroborate a potential link between those disabilities and [the Veteran]'s left eye cataract[s]." In light of the Court's instructions, the Board's October 2020 remand directed that the AOJ obtain a medical opinion regarding the question of whether the Veteran's left eye cataract has been caused or aggravated by his service-connected left eye disabilities. The Court's March 2020 Memorandum Decision furthermore found, "[w]ith respect to a direct theory of entitlement," that "the February 2018 VA examination is inadequate to adjudicate the claim and that the Board erred in relying on it to deny service connection on a direct basis." The Court explained that "the examiner improperly based his negative linkage opinion on the date of treatment of the left and right eye cataracts instead of considering the onset or course of symptoms in the left eye." The Court notes that the Veteran "contends that a cataract developed first in his left eye, but his ophthalmologist 'waited until both [eyes] had achieved the same degree of severity before initiating corrective surgery.'" The Court noted that "there is no indication in the examination report that the examiner attempted to elicit information regarding the onset and progress of [the Veteran]'s left eye condition." The Court remarked: "In fact, the examination report contains no information about the onset of the left eye cataract or the course of [the Veteran]'s symptoms prior to its removal. Nevertheless, the examiner's rationale is clearly based on when the left eye cataract was removed without consideration of its onset or progression." While the Court stated that it "recognizes that there is no reasons-or-bases requirement imposed on examiners," it found that "the Court cannot conclude that the examiner's rationale was adequate to sufficiently inform the Board of the expert judgment that served as the basis for the opinion." In light of the Court's directives, the Board's October 2020 remand directed that the AOJ obtain a new medical opinion providing a more adequate rationale that expressly considers the onset or course of symptoms in the left eye rather than the date of treatment of the left and right eye cataracts. The report of the resulting December 2020 VA eye examination shows that the VA examiner interviewed the Veteran and noted "Details of Onset: The patient had progressive worsening of vision that was a result of cataracts, worse in the left eye than the right due to a previous left eye injury during service. The veteran had surgery when the vision was poor enough that glasses could no longer correct it." With reference to the Veteran's established in-service blunt injury to the left eye, the VA examiner opined that it was "less likely than not (less than 50 percent probability)" that the Veteran's left eye cataract was "incurred in or caused by the claimed in-service injury...." Notably, the VA examiner's rationale notes a limitation in the available information: "However, it is not clear from the evidence since the veteran has had the cataracts removed and I am only basing the decision by the claims file evidence." The VA examiner's rationale acknowledged that "Accelerated cataract can result as a later sequelae of blunt eye trauma," and the VA examiner acknowledged that the Veteran's lay testimony indicates that his left eye cataract had been "worse" than his right eye cataract. The VA examiner further noted, significantly, that "It would be common for the left eye with the blunt trauma to have caused a more significant cataract though." The VA examiner rationalized, however, that "[t]here is no evidence that the patient had asymmetric cataract besides the veteran's testimony." By acknowledging, but apparently not accepting, the Veteran's lay testimony in this regard, the VA examiner essentially concludes that the absence of a showing of a distinction between the severity of the left eye cataract as compared to the right leads to a conclusion that the left eye cataract was most likely age-related and not etiologically linked to his military service. The Board interprets the VA examiner's opinion to indicate that if there were a showing of worsened left eye cataract relative to the right eye cataract then it would otherwise be reasonable to conclude that the left eye cataract was etiologically linked to the in-service blunt injury to the left eye. The Board has carefully considered the VA examiner's language indicating that: "Accelerated cataract can result as a later sequelae of blunt eye trauma," and "It would be common for the left eye with the blunt trauma to have caused a more significant cataract...." The Board has furthermore considered the Veteran's lay testimony indicating that his left eye cataract impairment developed earlier and with greater severity than his right eye cataract, despite the fact that the VA examiner appears to not have fully accepted this lay testimony. The Board notes that the VA examiner did not identify a clear reason to doubt the Veteran's testimony in this regard. The Board observes that it is not clear that the VA examiner's treatment of the Veteran's pertinent lay testimony would survive judicial scrutiny. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) (holding that the duty to assist requires that an examiner address the veteran's lay statements to provide the Board with an adequate medical opinion). A layperson is competent to offer testimony regarding symptoms capable of observation. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In a February 2021 addendum medical opinion, the VA examiner rationalized that "[t]he left eye cataract was removed at the same time as the right eye cataract, which had not suffered any eye injuries. Therefore, it is hard to establish a connection that the left eye cataract was caused by the service connected injury...." However, this rationale appears to be quite similar to the rationale the Court's March 2020 decision found to be inadequate in a prior VA medical opinion. The Court stated: "the examiner improperly based his negative linkage opinion on the date of treatment of the left and right eye cataracts instead of considering the onset or course of symptoms in the left eye." With this in mind, the Board finds it significant that the VA examiner's December 2020 opinion also stated: "Yes," it was the case that "the Veteran's [left eye cataract was] at least as likely as not aggravated beyond its natural progression by service connected condition," and cited medical literature to support the medical principle that "[b]lunt trauma can cause accelerated cataract changes." The VA examiner explained that she was unable to "[d]etermine a baseline level of severity," explaining: "Medical evidence is not sufficient to support a determination of a baseline level of severity. There is not enough evidence prior to cataract surgery and retinal surgery to support this decision." The Board finds that the December 2020 / February 2021 VA medical opinion supports finding, at a minimum, that the Veteran's left eye cataract was aggravated in severity by his service-connected left eye disabilities resulting from the established in-service blunt trauma to the left eye. However, the Board furthermore finds that a more straightforward and complete grant of service-connected status on a direct basis is reasonably supported by the evidence. The December 2020 VA examiner instructs that "Accelerated cataract can result as a later sequelae of blunt eye trauma," and "It would be common for the left eye with the blunt trauma to have caused a more significant cataract." The VA examiner's conclusion that the Veteran's particular left eye cataract was not etiologically linked to his particular in-service "blunt trauma" included a citation of the VA examiner's uncertainty. The VA examiner stated that "it is not clear from the evidence," because the VA examiner could only rely upon the Veteran's lay testimony for the reported distinction between the progression of the left eye cataract compared to that of the non-service-connected right eye cataract. However, despite this uncertainty, the same examining VA optometrist reached an expert conclusion that the Veteran's left eye cataract was aggravated by the service-connected left eye disabilities that are established to have resulted from the in-service left eye trauma; this strongly suggests the VA examiner considered it reasonable to conclude that the Veteran's left eye cataract's progression was indeed distinguishable from that of his right eye cataract. Rather than base a grant of service-connected compensation for the left eye cataract in an analysis of secondary service connection, the Board finds that the evidence reasonably supports finding that the Veteran's left eye cataract was directly etiologically linked to his in-service left eye trauma. The Board finds: (1) the post-service diagnosis is established, (2) the in-service injury is established, (3) the December 2020 VA medical opinion identifies that it would be a "common" result for such an in-service injury to cause a more significant cataract," and (4) the Veteran's testimony and a portion of the December 2020 VA medical opinion reasonably indicate that the left eye cataract was more severe / aggravated relative to the right eye cataract. The Board also again notes that the rationale presented for the December 2020 / February 2021 VA medical opinion's negative nexus opinion appears to be inadequate to otherwise support a contrary outcome. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for left eye cataract is warranted on a direct basis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barone, 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.