Citation Nr: 21028628 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-39 835 DATE: May 11, 2021 ORDER Entitlement to service connection for left eye cataract, to include as secondary to service-connected diabetes mellitus and dry eye syndrome, is denied. Entitlement to a rating higher than 40 percent for loss of the right eye is denied. FINDINGS OF FACT 1. The Veteran failed, without good cause, to report for a VA examination that was necessary to adjudicate the claim for service connection for a left eye cataract. 2. The Veteran failed, without good cause, to report for VA examinations that were necessary to adjudicate the claim for increased rating for the loss of the right eye. CONCLUSIONS OF LAW 1. The preponderance of the evidence is against finding that any left eye cataract is related to service or to any disease, injury, or event in service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.655. 2. The criteria for entitlement to a rating higher than 40 percent for loss of the right eye have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.655, 4.79, Diagnostic Code 6066. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to June 1971. In July 2016, January 2020, and November 2020, the Board remanded the case for further development. 1. Entitlement to service connection for left eye cataract, to include as secondary to service-connected diabetes mellitus and dry eye syndrome During the course of the appeal, the medical evidence showed a diagnosis of left eye cataract. Additional evidence was obtained to determine whether the cataract was related to service or the service-connected diabetes mellitus. Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). A disability that is proximately due to or the result of a service connected disability shall be service connected. When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a non-service connected disability, which is aggravated by a service-connected disability. In such an instance, the Veteran is compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Following careful review of the evidence of record, the Board finds the preponderance of the evidence is against the claim for service connection for a left eye cataract. At an April 2012 VA examination, the examiner diagnosed a mild cataract. Corrected distance measured 20/40 or better. The left eye cataract did not cause any decrease in visual acuity or other visual impairment. At a July 2017 VA examination, the examiner diagnosed an age-related cataract. Corrected distance measured 20/40 or better. The examiner opined that a decrease in visual acuity from 20/20 to 20/30 was most likely due to the left eye cataract. At an August 2019 VA examination, the examiner diagnosed an age-related cataract. Corrected distance measured 20/40 or better. The examiner opined that it was at least as likely as not that the left eye cataract caused a decrease in visual acuity. At an August 2020 VA examination, the examiner noted that the Veteran's cataracts were very mild considering his age. The examiner opined that it was less likely than not that the cataracts were due to the service-connected diabetes mellitus. An opinion on aggravation was not provided. In a November 2020 Board remand, a VA examination was requested. That examination was scheduled in February 2021. The Veteran did not report for that examination, and did not provide any good cause for failing to report. On review of the record, there is no indication, either by the Veteran or the representative, that an attempt has been made to reschedule or provide good cause for the failure to appear for the VA examination. When a claimant, without good cause, fails to report for an examination scheduled in conjunction with an original compensation claim, such as a claim for service connection, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. 38 C.F.R. § 3.655(a). Any evidence expected to be obtained as a result of the VA examination, to include a potentially favorable nexus opinion, cannot be considered. Based on the current evidence of record, the Board concludes that service connection for a left eye cataract is not warranted. The evidence shows that the Veteran had a diagnosis of left eye cataract during the appeal period. However, the etiology of any current left eye cataract remains unclear, and the August 2020 VA examiner found the Veteran's left eye cataract was less likely than not due to service-connected diabetes mellitus. While the Veteran is competent to testify to observable symptomatology, the Board cannot say without further information whether a causal relationship exists between the left eye cataract and service-connected diabetes mellitus or dry eye syndrome. Therefore, the Board concludes that the preponderance of the evidence is against a finding of a relationship between the left eye cataract and the service-connected diabetes mellitus or dry eye syndrome. The Board has considered the Veteran's lay statements. Laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The lay statements describing the Veteran's cataract symptoms are competent and credible. However, the Veteran is not competent to determine the etiology of a left eye cataract. The Veteran has not submitted any medical evidence to support the contention that his left eye cataract is related to the service-connected diabetes mellitus or dry eye syndrome. As the preponderance of the evidence is against the claim of entitlement to service connection for the left eye cataract, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating higher than 40 percent for loss of the right eye The Veteran is seeking an increased rating for a right eye disability. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, and when the examination was scheduled in conjunction with any claim for increased rating, the claim shall be denied. 38 C.F.R. § 3.655 (b). During the pendency of the appeals process, the Veteran attended four VA examinations. In November 2020, the Board determined that the deficiencies in the August 2020 examination warranted reexamination to evaluate the current level of disability experienced by the Veteran. Therefore, the Board remanded the matter to provide the Veteran with an additional VA examination to help determine the severity of the right eye loss. Pursuant to the November 2020 Board remand directives, VA examinations were scheduled in November 2020 and December 2020. The Veteran did not report for those examinations, and did not provide good cause for failing to report. In February 2021, the Veteran declined the examination. On review of the record, there is no indication, either by the Veteran or the representative, that an attempt has been made to reschedule or provide good cause for the failure to appear for the VA examinations. While VA has a statutory duty to assist in developing evidence pertinent to a claim, a veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA's duty must be understood as a duty to assist a veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565 (2008). Therefore, remand for additional VA examinations is not warranted. The Board finds that a VA examination is necessary to decide the claim for an increased rating for the right eye loss. Here, even considering the evidence of record, to include the Veteran's lay statements and assertions regarding the severity of the eye disabilities, there is insufficient competent evidence to demonstrate that any higher rating is warranted. Specifically, the Board notes that disability ratings for the eye disabilities are determined on the basis of objective criteria of visual acuity, visual field, and muscle function. While the Veteran may claim seeing black spots and flashes in the left eye, he is not competent to speak to the specific visual acuity or visual field loss requisite for a higher rating, as the evidence does not show that the Veteran has the proper medical training, experience, or education. That determination applying objective criteria requires a medical professional, such as during a VA examination. The Veteran did not attend the scheduled VA examination. The examination may have provided evidence to substantiate an increased rating. At the examination, other symptoms would have been elicited from the Veteran, if present, that may have supported the criteria for an increased rating, such as decreased visual acuity, visual field, and muscle function. Therefore, the Board must find that entitlement to a higher rating cannot be established without examination, which the Veteran did not attend. The Veteran has not provided a statement of good cause for not attending the examination or expressed a willingness to attend another scheduled examination. The Board finds that the Veteran has not been cooperative and that a remand to schedule another examination would cause further unnecessary delay in the proceedings. Moreover, the Veteran's representative did not acknowledge or state good cause for why the Veteran failed to appear for the examinations scheduled in this case. The Veteran's representative has not confirmed that the Veteran would appear for an examination or that the Veteran himself is requesting that the examination be scheduled. In any event, to support the assignment of any higher rating for loss of the right eye, the evidence would need to show that the Veteran had a service-connected disability of the other eye worse of 20/50 or worse. 38 C.F.R. § 4.79, Diagnostic Code 6066. Or, the evidence must show impairment of vision in each eye is rated at visual acuity of 20/200 or less; or the peripheral field of vision for each eye is 20 degrees or less, in order for the nonservice-connected eye to be rated as if service-connected. 38 C.F.R. § 3.383. No evidence of record shows that visual acuity in the nonservice-connected left eye is 20/200 or less or that visual field is 20 degrees or less. Therefore, the evidence of record does not otherwise support the assignment of any higher rating. As the Veteran, without good cause, has failed to appear for the VA examinations, and as entitlement to increased rating for the service-connected right eye loss cannot be established without a current VA examination, or based on evidence of record, the appeal for increased rating must be denied. 38 C.F.R. § 3.655. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kass, 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.