Citation Nr: 22014498 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 09-34 472 DATE: March 14, 2022 ORDER Entitlement to service connection for an eye condition, to include as secondary to service-connected diabetes mellitus is denied. FINDING OF FACT The claimed eye condition is not related to an active period of the Veteran's military service or to any service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for an eye condition, to include as secondary to service-connected diabetes mellitus have not been met. 38 U.S.C. § 1101, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active-duty service in the United States Air Force from March 1986 to February 1990 and from March 2003 to September 2003, with additional service in the Air Force National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in July 2018 and May 2021. Service connection for the Veteran's cervical spine condition was granted in an August 2021 rating decision issued by the RO. Service connection for migraine headaches was granted in October 2021. Therefore, the issues of service connection for a cervical spine condition and service connection for migraine headaches are no longer before the Board as these issues were granted in full. See 38 C.F.R. § 6 Vet. App. 35 (1993). The claim for service connection for an eye condition is now properly before the Board. The Board notes that the December 2021 post-remand brief submitted by the Veteran's representative lists entitlement to a rating in excess of 0 percent for service-connected migraine headaches as an issue presently before the Board. However, the rating assigned in October 2021 at the time of the grant of service connection has not been appealed. SERVICE CONNECTION Service connection is warranted where the evidence of record establishes that an injury or disease resulting in a disability was incurred in the line of duty during active military service or, if an injury or disease pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection may also be granted for any disease diagnosed after military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). With a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in approximate balance, i.e., "nearly equal". 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 claimant. 38 U.S.C. § 5107(b). This benefit-of-the-doubt rule applies if the competing evidence is nearly equal but does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, at *11 (Fed. Cir. Dec. 17, 2021). 1. Entitlement to service connection for an eye condition, to include as secondary to service-connected diabetes mellitus The Veteran contends that he should be service-connected for an eye condition, to include as secondary to service-connected diabetes mellitus. In January 2018, the Veteran was afforded a hearing before the undersigned, Veteran's Law Judge (VLJ). The Veteran and the Veteran's representative provided information to the Board that the Veteran had a September 2000 eye examination that was previously conducted while the Veteran was in Officer Candidate School. The Veteran's representative requested that the record be held open for 60 days so that additional evidence showing that the Veteran did have an eye condition could be submitted. The undersigned VLJ granted the representatives request during the hearing. The Veteran was afforded a VA examination in September 2020. The September 2020 examiner conducted a physical examination of the left and right eye. The Veteran's visual activity was measured. The Veteran's uncorrected distance vision in his right eye was measured at 20/200. The Veteran's uncorrected distance vision in his left eye was measured 10/200. The Veteran's corrected distance vision was measured at 20/20 or better in both the left and right eye. The Veteran's uncorrected near (reading) vision in his right and left eye were also measured as 20/20 or better. The examiner found that the Veteran does not have anatomical loss, light perception only, or extremely poor vision or blindness in either eye. The examiner noted the Veteran does not have an astigmatism, scotoma, loss of visual field or legal blindness. The examiner also found that the Veteran's claimed eye condition does not impact the Veteran's ability to work and that a diagnosis of an eye condition was not confirmed. The examiner opined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The examiner determined that there were no findings of an eye condition related to diabetes mellitus upon examination. The Veteran was afforded another VA examination in July 2021. The examiner provided an opinion as to direct service connection and determined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale indicated that an eye condition has not been diagnosed that is the result of an in-service, injury, illness, or event. The examiner opined, in regards to secondary service connection, that the Veteran's claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected diabetes mellitus. The examiner noted that based on the September 2020 eye exam no ocular conditions were found that are related to diabetes mellitus. The examiner also stated that the treatment records do not document any diabetes related eye conditions. In the May 2021 remand, the Board requested that the RO obtain additional private treatment records related to the Veteran's eye condition and associate them with he claims file, or to document any attempts to obtain such records. On May 26, 2021, the RO sent the Veteran a duty to assist (DTA) letter requesting assistance in development of his appeal. In the DTA letter the RO asked for evidence of treatment the Veteran received from any non-VA healthcare/private healthcare provider to include Dr. Derksen. As of the October 2021 supplemental statement of the case the RO did not receive a response from the Veteran. The RO did obtain relevant outstanding VA treatment records dated 2005 to present. Upon review of the claims file, there is no indication or evidence that supports a finding that the Veteran's claimed eye condition is related to active-duty service or as being secondarily connected to a service-connected condition. A February 2014 medical note indicated that the Veteran had an eye examination in May 2013 that indicated the Veteran's vision was normal. The Veteran's September 2020 physical eye examination also indicated that the Veteran's vision was normal. There is no evidence of a current diagnosis of an eye condition within the record. The Veteran indicated during the January 2018 hearing that he would submit additional evidence to support his claim for service connection for an eye condition. The undersigned VLJ granted the Veteran's request for an additional 60 days. Additional documents were not received. In the May 2021, pursuant to the Board's remand directives, the RO sent out a letter requesting outstanding private treatment records and release authorizations to be signed by the Veteran. The Veteran failed to respond to the RO's request for release of any additional records. The duty to assist is not a one-way street and a claimant cannot stand idle and fail to cooperate. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran's active participation is necessary to adjudicate his claim. Here, the Veteran failed to provide additional records or to provide the RO with the necessary authorizations to obtain the records, as outlined in the May 2021 letter sent to the Veteran. There is no evidence of returned mail after the May 2021 letter was sent to the Veteran, and therefore the Board finds that the Veteran did receive the May 2021 letter. The Board finds that the RO has fulfilled its duty to assist the Veteran in developing his claim as it requested additional records, provided the Veteran a new VA examination and associated outstanding VA treatment records to the claims file. The Board has carefully and sympathetically reviewed the Veteran's claims file. Unfortunately, there is no evidence of record that supports a finding that the Veteran has an eye condition nor is there evidence that an eye condition was caused by or related to an in-service event, injury, or condition. The Board finds that the evidence is persuasively against granting service-connection for an eye condition. B. Mullins Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.