Citation Nr: 21042349 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-04 727 DATE: July 12, 2021 ORDER Entitlement to service connection for an eye disorder other than diabetic retinopathy, to include retinal detachment, choroidal neovascular membranes (CNVM) and pseudophakia, is granted. FINDING OF FACT The Veteran's retinal detachment, CNVM, and pseudophakia are proximately due to his service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for an eye disorder other than diabetic retinopathy, to include retinal detachment, CNVM, and pseudophakia as secondary to service-connected disabilities are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1965 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that this matter was most recently remanded to the Agency of Original Jurisdiction (AOJ) in April 2021. Following the requisite development, a supplemental statement of the case (SSOC) was issued in May 2021. This matter has been returned to the Board at this time for further appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Entitlement to service connection for an eye disorder other than diabetic retinopathy To establish service connection, the evidence must generally 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). Service connection on a secondary basis is warranted when it is shown that a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. This includes disabilities aggravated or made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Pursuant to 38 U.S.C. § 1110 and 38 C.F.R. § 3.310(a), when aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See Allen, 7 Vet. App. at 448. The Board notes that the United States Court of Appeals for Veterans Claims (CAVC) has noted that conditions may wax and wane in severity, and that a medically ascertainable incremental increase in disability, may meet the definition of "disability" "the impairment of earning capacity due to disease, injury, or defect." Ward v. Wilkie, 31 Vet. App. 233, 239-40 (2019). The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that his eye disorder other than diabetic retinopathy is secondary to his service-connected conditions. Relevant to this claim, the Veteran is currently service-connected for diabetes mellitus, type 2, and diabetic retinopathy with macular degeneration. Further, the Veteran's macular degeneration was granted service connection based on the determination that it is at least as likely as not aggravated beyond the normal course of the condition by his service-connected diabetic retinopathy. The Veteran's post service treatment records contain complaints and treatment of multiple eye disorders. Currently, the Veteran is diagnosed with pseudophakia, retinal detachment, and CNVM. In connection with this claim, the Veteran underwent a VA examination in May 2021. Upon review of the record, the examiner determined that the Veteran's retinal detachment is attributed to his peripheral exudative hemorrhagic chorioretinopathy and macular degeneration, as determined by the Veteran's private by retinal specialist. However, the examiner noted that at the time of the Veteran's retinal detachment, it was indicated that diabetic retinopathy was not present. Therefore, the examiner opined that the claimed condition is less likely than not proximately due to or the result of Veteran's service-connected condition. Regarding the Veteran's diagnosed CNVM, the examiner found that the CNVM is attributed to the Veteran's macular degeneration, which does not have a positive association with diabetes type II or diabetic retinopathy. Therefore, the examiner determined that the claimed condition is less likely than not proximately due to or the result of Veteran's service-connected condition. Additionally, prior to the Veteran's May 2021 VA examination, the Veteran was provided an addendum VA medical opinion in April 2019. Upon review of the record, the examiner opined that the Veteran's right eye pseudophakia is most likely aggravated by the Veteran's treatment for retinal detachment. On review of the record, the Board finds that the May 2021 VA examiner opinion on secondary service connection flawed. The examiner opined that the Veteran's claimed eye disabilities are not related to the Veteran's service-connected disabilities. However, the examiner stated that the Veteran's macular degeneration attributed to the Veteran's eye disabilities. Although a remand for further medical opinion could be accomplished, the Board will not remand for negative evidence. The Board finds that the medical evidence is in relative equipoise inasmuch as the examiner specifically opined that the Veteran's macular degeneration, a service-connected disability, attributed to the Veteran's eye disabilities. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 Therefore, upon review of the evidence, the Board finds that service connection for an eye disorder, to include retinal detachment, CNVM, and pseudophakia on a secondary basis is warranted. The Veteran has a diagnosis of retinal detachment, CNVM, and pseudophakia. Furthermore, there is medical evidence that the Veteran's service-connected macular degeneration attributed to his retinal detachment and CNVM; and the Veteran's pseudophakia is aggravated by the Veteran's treatment for retinal detachment. Because there is an approximate balance of positive and negative evidence, the benefit of the doubt must be applied in favor of the Veteran. 38 U.S.C. § 5107(b); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102. Accordingly, service connection for an eye disorder, to include retinal detachment, CNVM, and pseudophakia as secondary to the Veteran's service-connected disabilities is granted. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, 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.