Citation Nr: 1648556	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  09-00 254A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to service connection for a right eye disorder, to include cataract, to include as secondary to left eye disorder. 


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

T.Y. Hawkins, Counsel






INTRODUCTION

The Veteran had honorable active duty service in the Army from July 1972 to July 1983, and in the Army National Guard in May 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

In September 2015, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for additional evidentiary development.  As there has been substantial compliance with the Board's remand directives, the Board finds there is sufficient evidence to adjudicate the claim.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDING OF FACT

The probative and competent evidence of record is against finding that the Veteran's right eye cataract is the result of active duty service, is secondary to a service-connected disability, or is the result of improper VA treatment under the provisions of 38 U.S.C.A. § 1151.


CONCLUSION OF LAW

The criteria for service connection for a right eye disorder have not been met.  38 U.S.C.A §§ 1131, 1151, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310(a) (2015).






REASONS AND BASES FOR FINDING AND CONCLUSION

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in, or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In order to establish a right to compensation for a present disability, a veteran must show:  "(1) the existence of a present disability; (2) the 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"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

For purposes of §3.303(b), where the veteran asserts entitlement to service connection for a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 
38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. 
§ 3.303(d). 

The Veteran has advanced several theories of entitlement to service connection for a right eye disorder.  First, he claimed that he has a right eye cataract that is secondary to his left eye traumatic cataract, the latter of which he said resulted from improper VA treatment under the provisions of 38 U.S.C.A. § 1151.  After his claim for service connection for the left eye was denied, he averred that the right eye cataract was a result of VA treatment under the same provisions.  Finally, he has claimed that he suffered an injury to his right eye when it was hit by his "dog tags" while he was on active duty with the Army National Guard during the 1992 LA Riots.

Regarding the Veteran's first theory of entitlement, service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2015).  The United States Court of Appeals for Veterans Claims (Court) has construed this provision as entailing any additional impairment of earning capacity resulting from an already-service-connected condition, regardless of whether the additional impairment is itself a separate disease or injury caused by the service-connected condition.   Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists, and (2) that the current disability was either (a) caused or (b) aggravated by a service- connected disability.  Id.

Here, because the Veteran is not service-connected for a left eye disability, to include a traumatic cataract, service connection for a right eye disorder as secondary to a left eye disorder is not applicable.  Moreover, as there has been no probative evidence presented to suggest that the Veteran's right eye cataract is secondary to another service-connected disability, service connection for the right eye must be denied on this basis.

As to his second assertion, that he has a right eye cataract as a result of improper VA treatment, Title 38 U.S.C.A. § 1151 reads, in pertinent part, as follows:

"(a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and --

(1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was-- (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable."

In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment.  38 C.F.R. § 3.361(b) (2015).

To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability.  Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause.  38 C.F.R. § 3.361(c)(1) (2015).

Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress.  38 C.F.R. § 3.361(c)(2) (2015).

To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent.  38 C.F.R. § 3.361(d)(1) (2015).  See also VAOPGCPREC 5-01.  The issue of informed consent has not been argued here, as the Veteran's contention is that his squamous cell carcinoma of the right tongue base was not timely diagnosed.

Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen.  The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.  In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32.  38 C.F.R. § 3.361(d)(2) (2015).

Here, there is no probative evidence that the Veteran underwent hospital care or medical or surgical treatment that resulted in a right eye cataract or any other right eye disorder.  Although he underwent surgery on the left eye in 2000 at a VA medical facility for extraction of his left eye cataract with a replacement intraocular lens, his claim for service connection for the left eye under 38 U.S.C.A. § 1151 was denied because the probative and competent evidence failed to show that the hospital care or medical or surgical treatment caused an additional disability or death; and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent.  38 C.F.R. 
§ 3.361(d)(1).  See VA examination August 2013.  Further, while VA treatment records show that the Veteran underwent right eye cataract extraction with implantation of intraocular lens in February 2014, there has been no probative evidence presented to suggest that he sustained an additional disability as a result of the right eye surgery.  The post-operative report indicated a satisfactory result and, during a follow-up with the ophthalmologist in March 2014, it was noted that the Veteran was "doing well."  Accordingly, compensation for a right eye disorder, to include a cataract, under the provisions of 38 U.S.C.A. § 1151 is not for application.

Finally, as to the Veteran's third assertion that he was struck in the right eye by his "dog tags," unfortunately, a thorough search for the Veteran's complete service treatment records only yielded partial results.  VA was unable to locate any treatment records for the 5-day period in May 1992 that the Veteran served on active duty with the Army National Guard.  See Formal Finding of Federal Records Availability, August 2007.  Although several letters were sent to the Veteran asking him to provide any service treatment records in his possession, throughout the appeal period, he reported that neither he, nor his California DVA representative, were able to locate such records.  The first evidence of post-service treatment for a right eye disorder were VA treatment records dated in November 2005, which showed a diagnosis of compound hyperopic astigmatism.  The next evidence of a right eye disorder were VA treatment reports dated November 2007, which showed a diagnosis of a mild, senile cataract of the right eye.  There was no indication from either the Veteran or his treating clinicians that either disorder was the result of some incident or injury sustained during his military service.   In January 2012, he was diagnosed with nongranulomatous anterior uveitis of the left eye; the clinician said that right eye involvement had resolved without treatment.  He was also diagnosed with pigment dispersion glaucoma, bilaterally, and a right eye cataract.  However, in none of these records is there probative evidence from a medical professional suggesting that any of his right eye disorders was caused or aggravated by military service.

Accordingly, the Board concludes that the most probative evidence of record does not support a grant of service connection for a right eye disorder, to include cataract, to include as secondary to a left eye disorder.  The "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b) is not applicable, as there is not an approximate balance of evidence.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 

Veterans Claims Assistance Act of 2000 (VCAA)

VA met all statutory and regulatory notice provisions by means of letters dated in February 2012 and August 2013.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).
ORDER

Entitlement to service connection for a right eye disorder, to include as secondary to left eye disorder, or as due to VA treatment under 38 U.S.C.A. § 1151 is denied.



____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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