BVA9507183 DOCKET NO. 90-27 468 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for bilateral subcapsular cataracts. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Associate Counsel INTRODUCTION The veteran had active military service from March 1967 to September 1970 and from January 1974 to December 1975. The veteran also had additional periods of active duty for training, the dates of which have not been verified. After developing additional evidence in this case, the Board of Veterans' Appeals (Board), in accordance with Thurber v. Brown, 5 Vet.App. 119 (1993), informed the appellant in an October 1994 letter of the additional evidence developed, and provided an opportunity to respond. In an October 1994 response, the representative indicated that there was no further evidence, argument or comment to present. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that an inservice explosion which occurred while he was soldering casings of shells together caused damage to his eyes and led to the development of bilateral cataracts. DECISION OF THE BOARD The Board of Veterans' Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence as to the veteran's claim is in equipoise and with reasonable doubt resolved in favor of the veteran, service connection is warranted for bilateral subcapsular cataracts. FINDINGS OF FACT 1. All relevant evidence for an equitable decision has been obtained by the regional office (RO) insofar as possible. 2. Bilateral subcapsular cataracts had their onset during service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the veteran, bilateral subcapsular cataracts were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303(d) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). As the veteran has submitted a well-grounded claim, the Department of Veterans Affairs (VA) has a duty to assist the veteran. In this regard, we note that in March 1991, the Board remanded the case, requesting that further effort be taken to obtain service medical records, private medical records, and verified dates of service. The RO did respond fully to these requests; however, the responses to the RO's requests were less fully complete than desired. The military personnel commander advised the RO in October 1991 of various dates on which the appellant had been recalled to active duty for training, through May 1976. The Navy liaison officer in St. Louis, Missouri, advised the RO in December 1991 that all available records pertinent to the appellant had previously been forwarded to the RO. The Naval Reserve Center in New Orleans, Louisiana, advised the RO by telephone in May 1992 that it had no pertinent records. The National Personnel Records Center advised the RO in July 1992 that it had no additional pertinent medical records. The Naval Military Personnel Command advised in August 1992 that it could not verify any active duty for training subsequent to 1975. In May 1991, the RO requested that the appellant's private physician, Matthew C. Kartch, M.D., provide records of treatment of the appellant on or about April 25, 1990. Dr. Kartch wrote back, in a letter received later in May 1991, inquiring exactly what information was requested regarding the appellant. The RO advised Dr. Kartch that the VA required copies of all of the appellant's treatment records; however, Dr. Kartch provided only an operative report dated in April 1990, without any reports of examinations prior to the surgery. The case was returned to the Board for further appellate consideration, and was received and docketed in January 1993. The matter was again remanded by the Board in March 1993 to obtain all treatment records of the veteran's private physician, Matthew C. Kartch, M.D., and to have a comprehensive VA ophthalmological examination performed by a Board of two VA ophthalmologists, if possible. The ophthalmologists were requested to comment on whether the appellant's bilateral cataracts may have been reasonably medically attributable to the alleged explosion in service. All available medical records were obtained from Dr. Kartch, and the veteran was examined by one VA ophthalmologist. The veteran refused to report for a second VA ophthalmological examination, indicating that the appointment had previously been canceled twice. As such, we believe that the duty to assist, as mandated by 38 U.S.C.A. § 5107 (West 1991), has been satisfied. The veteran asserts that service connection for bilateral cataracts is warranted and he has alleged the etiology of this disorder to be an inservice explosion. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Regulations also provide that service connection may 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) (1994). It is the defined and consistently applied policy of the 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. It is not a means of reconciling actual conflict or a contradiction in the evidence; the claimant is required to submit evidence sufficient to justify a belief in a fair and impartial mind that the claim is well grounded. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships. 38 C.F.R. § 3.102 (1994). As previously noted, there are no service medical records available for the period of time in which the veteran claims that he sustained injuries to his eyes as a result of an explosion. If the service department indicates that service medical records are unavailable, the Board has a heightened obligation to explain its findings and conclusions and to consider the benefit-of-the- doubt rule. O'Hare v. Derwinski, 1 Vet.App. 365 (1991). At his December 1989 personal hearing, the veteran indicated that in 1968, he was soldering casings of shells together to make recreational items. The veteran further testified that while he was soldering these pieces together, something caused an explosion. The veteran reported that he did not know what had happened, but that something exploded and caused lead and debris to fly into his face and eyes. Transcript pages 1 and 2 (T. 1, 2). The veteran indicated that his eyes were wrapped in a towel and that he was taken to a treatment facility. (T. 3). He further indicated that he was hospitalized for a period of one to two weeks and then returned to his assigned unit. (T. 4). He testified that he did not think about the eye injury until 1987, when he was told that he had cataracts. The veteran indicated that this was confirmed on two separate occasions and that the second physician was an ophthalmologist who told the veteran that he had cataracts in both eyes. (T. 7). A review of the veteran's naval reserve records notes that the veteran reported having blurred vision in June 1988, with the diagnosis being "? cataract OD" being rendered at that time. A history of a gunshot injury in Vietnam was noted. A March 1989 service medical examination noted the veteran to have 20/100 vision in the right eye, and an ophthalmology follow-up visit was recommended. A February 1989 letter from the Eye Dr. Contact Lens Outlet reported that the veteran had been examined in June 1988, and had been found to have had 20/25 vision in the right eye and 20/20- vision in the left eye. The letter further noted that the veteran reported having had a bomb explode in front of his face in 1969, and that this had created a traumatic cataract in his right eye. A February 1989 VA examination found the veteran to have 20/100 vision, correctable to 20/40, in the right eye, and 20/40 vision, correctable to 20/25, in the left eye. A diagnosis of bilateral subcapsular cataracts was rendered at that time. A December 1989 letter from C. J. Silodor, M.D., indicates that the veteran had bilateral cataracts that could have resulted from any injury. Diagnoses of bilateral subcapsular cataracts were rendered by the veteran's private physician, Matthew C. Kartch, M.D., in February, March, and April 1990. On April 25, 1990, the veteran underwent an extracapsular cataract extraction of the right eye, with an implantation of a posterior chamber intraocular lens. In December 1993, the veteran underwent a VA ophthalmological examination. Visual acuity was reported as 20/20 with a refractive ametropia of myopia, an astigmatism and presbyopia being reported. The veteran was also noted to have status post intraocular lenses left and right posterior segment type with bilateral peripheral iridectomies at twelve o'clock. Examination of the lenses revealed a posterior chamber lens in place. Diagnoses of status post intraocular lenses left and right, posterior chamber type; status post peripheral iridectomies left and right associated with the cataract extraction; bilateral syneresis of the vitreous; incipient conjunctivitis; and a refractive ametropia of myopia, astigmatism, and presbyopia were rendered. In March 1994, the VA examiner provided an opinion that it was possible that the veteran's cataracts could have been caused by the inservice explosion reported by the veteran. A contusion of the eye may cause a posterior subcapsular cataract a significant period of time following the original injury, even though the lens capsule has not been grossly injured. F. Newell, M.D., Ophthalmology: Principles and Concepts 382 (4th ed. 1978). While the veteran did not specifically report that he had sustained a direct contusion of the eye, the explosion, as described by the veteran, is akin to having sustained a direct contusion to the eye. While there are no service medical records indicating that the veteran sustained an injury to his eyes as a result of an explosion during his first period of service, the veteran cannot be faulted for the unavailability of these records. Although a gap of at least a decade exists between the reported injury and the first findings of a cataract, the evidence otherwise in favor of the veteran includes the recognition in the aforementioned medical text regarding the etiology of subcapsular cataracts and the VA examiner's opinion that the veteran's subcapsular cataracts may have been caused by the explosion. Other private doctors also recognized the possibility of such a relationship; there is no history pertinent to the formation of cataracts in any of the treatment records, except for the service injury. In sum, there is an approximate balance of the positive and negative evidence regarding the merits of the issue. In such a case, the benefit of the is afforded to the veteran. As such, service connection for bilateral subcapsular cataracts is warranted. ORDER Service connection is granted for bilateral subcapsular cataracts. M. SABULSKY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.