Ambiguity in the VA manual regarding diabetes and cataracts
According to recent statistics, more than half of all Americans age 65 or older have cataracts. A cataract is an abnormal progressive condition of the lens of the eye, characterized by loss of transparency. In appearance, a gray-white opacity can be seen within the lens, behind the pupil of the eye. If cataracts are untreated, sight is eventually lost.
There are several types of cataracts, such as age-related cataracts caused by degenerative changes that typically occur in people over 50 years of age, congenital cataracts, traumatic cataracts that form after injury to the eye, but for the purpose of this post, I want to explore the fourth type – secondary cataracts that develop as a result of other medical conditions, like diabetes.
Diabetes increases the risk of eye disease. According to the American Diabetes Association, “people with diabetes are 60% more likely to develop this eye condition. People with diabetes also tend to get cataracts at a younger age and have them progress faster.”
Although, a frequently common complication of type II diabetes is diabetic retinopathy, cataracts are a close second. Cataract is considered a major cause of visual impairment in diabetic patients. Due to increasing numbers of diabetics worldwide, the incidence of diabetic cataracts is steadily increasing.
Interestingly, prior to December 2005, the VA’s disability manual – M21-1 – required the VA to consider cataracts, hypertension, and arteriosclerosis as a result of type II diabetes, unless shown to be of other origin. That meant that the VA was required to grant service connection for cataract if the veteran was already service-connected for diabetes mellitus and later filed a claim for this condition without having to prove a connection.
However, the M21-1 was rescinded by the M21-1MR – disability manual that details VA requirements for processing disability compensation claims of all types – on December 13, 2005. The new manual uses the term “may”, whereas the old one used the term “must”:
“The complications of diabetes mellitus may include, but are not limited to
- arteriosclerosis, including peripheral or cardiac complications
- cataracts, and
- secondary hypertension.
The new language raises a question as to whether VA still must automatically consider cataracts to be secondary to diabetes. Leave it to VA to produce a manual that creates ambiguity. Despite VA’s attempt to disenfranchise Veterans from obtaining service-connection for secondary health conditions stemming from diabetes, this new provision is still very favorable to Veterans.
If a Veteran had a claim that was pending prior to December 13, 2005, he/she can argue that the provision in M21-1 controlled the VA’s action on the claim. Therefore, a Veteran should not have to prove a link to cataracts if the evidence showed diabetes mellitus was the cause of origin. So long as there is no other known etiology for cataracts, VA must afford the Veteran the benefit of the doubt.
On the other hand, if the Veteran did not file their claim until December 13, 2005, or later, the Veteran can argue that the new provision continues to require VA to service connect these conditions as secondary to diabetes, so long as there is no other known etiology. Additionally, one can argue that the 2005 rescission of the manual was invalid because it did not give prior notice of the change, nor did it allow for public comment. (See Fugere v. Derwinski, 1 Vet. App. 103 (1990), aff’d, 972 F.2d 331 (Fed. Cir. 1992)).
As with most VA law and regulation, if you find yourself at a dead-end, all is not lost. VA law is so complex and dynamic that it almost lends itself to a favorable outcome for the Veteran – most of the time.
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