Citation Nr: 1644151 Decision Date: 11/21/16 Archive Date: 12/01/16 DOCKET NO. 13-06 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a bilateral eye condition to include ocular myasthenia gravis with right hyperopia and chronic open angle glaucoma. 2. Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to January 1953. This appeal comes before the Board of Veterans' Appeals (Board) from September 2011 and April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2015 the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board in December 2015 remanded the appealed claims, and they now return to the Board for further review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The preponderance of the probative evidence indicates that a bilateral eye condition to include ocular myasthenia gravis with right hyperopia and chronic open angle glaucoma was not shown in service or for many years thereafter and is not related to service, to include as due to dichlorodiphenyltrichloroethane (DDT) exposure. 2. The preponderance of the probative evidence indicates that diabetes mellitus, type II, was not shown in service or for many years thereafter and is not related to service, to include as due to DDT exposure. CONCLUSIONS OF LAW 1. The requirements for establishing service connection for a bilateral eye condition to include ocular myasthenia gravis with right hyperopia and chronic open angle glaucoma have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 2. The requirements for establishing service connection for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. VA's duty to notify was satisfied by letters in June 2011 and August 2012 for his eye claim, and in December 2012 and February 2013 for his diabetes mellitus. 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). Concerning the duty to assist, the Veteran's service treatment records (STRs) and service personnel records are on file, as are various post-service medical records, VA examination reports, and lay statements. The Board acknowledges that some of the Veteran's treatment records from the Minneapolis VA Medical Center (VAMC) are unavailable; however, the RO has exhausted all possible avenues to obtain a complete set, and set forth its actions in a formal finding of unavailability dated in July 2012. The Veteran was afforded a hearing before the Board and a copy of the transcript is of record. There is no allegation that the hearing provided to the Veteran was deficient in any way and further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). The Board also notes that actions requested in the prior remand have been undertaken. In this regard, additional VA treatment records and an addendum VA opinion were obtained. Moreover, a letter dated in January 2016 asked the Veteran identify recent treatment providers. The Veteran responded that he has not seen any private providers since 2012. The Board acknowledges that the remand requested an opinion be obtained from an ophthalmologist, but the 2016 opinion was provided by an optometrist. However, an optometrist is also a specialist in eye disabilities, and the examiner cited to treatise information from the Center for Disease Control in rendering the opinion. As the examiner has sufficient expertise to provide the opinion requested and provided a rationale referencing treatise information, the Board finds that there has been substantial compliance with the prior remand instructions. Moreover, neither the Veteran nor his representative has alleged the opinion was insufficient or that there was any failure to comply with remand instructions. Accordingly, no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . ."). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). III. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). 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 disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and myasthenia gravis or diabetes mellitus becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As the Veteran explained in his VA Form 9 submitted in February 2013, he contended that his claimed eye conditions including ocular myasthenia gravis, right hyperopia, and chronic open angle glaucoma were due to exposure to unknown chemicals that were sprayed while he was in service in Korea. In subsequent statements including at his October 2015 hearing, the Veteran and his authorized representative clarified that he was claiming service connection for his eye conditions and diabetes mellitus as due to DDT exposure in service from sprayings while he was stationed in Korea. The Veteran's exposure to DDT in service while stationed in Korea during the Korean War is conceded, based on unclassified Department of Defense materials addressing DDT spraying in the Korean War. See W.J. Sames, H.C. Kim, T.A. Klein, Entomological Issues during the Korean War, 1950-1953, paper as published within Proceedings of the DOD Symposium on Evolution of Miliary Medical Entomology, ADA506261. This was discussed in an informal hearing conference between the Decision Review Officer and the Veteran's authorized representative in December 2013. In a December 2012 submitted statement, the Veteran reported that while stationed in Korea for seven months he was exposed to sprayed chemicals, including by ingestion when they drank water from ditches. He then contended that his doctor at the University of Minnesota had told him that exposure to chemicals had caused nerve damage which more likely than not affected his eyes. In December 2012 the Veteran submitted an authorization to release records of treatment for an eye condition at the University of Minnesota medical center from December 2012 up to that date. Obtained University of Minnesota treatment records include those for treatment of myasthenia gravis and other ocular diseases. However, while multiple February 2012 treatment records for a plasma exchange for treatment of ocular myasthenia gravis noted that the Veteran had requested documentation to help him prove that DDT exposure in service had caused his myasthenia gravis, these treatment records do not provide a medical opinion supportive of such a link. An April 2012 treatment note informed of the Veteran expressing concern that his myasthenia gravis may have resulted from Agent Orange exposure. However, this is also not addressed further by any medical opinions. In his VA Form 9 in March 2014 the Veteran contended that his private treatment records from Cambridge Clinic supported his contention that his condition of the eyes was related to herbicide exposure. However, while the obtained treatment records from that facility note that the Veteran blamed Agent Orange exposure for his macular degeneration, these records do not contain any medical opinion to that effect. Hence, these records do not lend any greater support for a link between exposures in service and the Veteran's development of macular degeneration than his own statements. The Veteran, as a layperson, is not competent to address the distinctly medical question of a causal link between chemical exposures in service and subsequent development of disease, as such matter requires medical expertise to determine. The Veteran has not been shown to possess the requisite expertise or knowledge to address these questions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Additionally, the Board notes that the Veteran's contentions appear to conflate Agent Orange and DDT. The principal theory of entitlement presented in this case has been disease caused by DDT exposure in service in Korea. The Veteran did not serve in Vietnam or during the Vietnam era, and there is no indication of exposure to Agent Orange in service. Hence, there is no indication that Agent Orange exposure is supportable as a basis for service connection for the Veteran's claimed bilateral eye conditions or diabetes mellitus. The Veteran's records do contain a copy of a handwritten note on an otherwise blank page, received into the record in September 2011, stating as follows: "diagnosed w/ocular myasthenia gravis w/right hyperopia COAG chronic open angle glaucoma due to chemical exposure (DDT) & AO." However, there is no attribution of this note as a medical record, and it is not signed. Hence, absent any indication of authorship or source, it cannot be relied upon as a medical record supportive of the Veteran's claims. At his December 2015 hearing the Veteran testified that he has been gradually losing his vision for the past 15 years, so that he is now legally blind. He expressed his belief that his blindness as well as his diabetes mellitus were caused by his DDT exposure in Korea. At the hearing, the Veteran denied having been treated in service for the either his eye conditions or his diabetes mellitus. Upon a VA eye examination in February 2014, an optometrist noted that the Veteran had exposure to DDT while serving in combat in the Korean War, and observed that the Veteran had multiple eye conditions including ocular myasthenia gravis and chronic open-angle glaucoma. Following examination, the examiner assessed ocular myasthenia gravis, legal blindness in the left eye secondary to glaucoma surgery and complications of that surgery, a dense cataract in the left eye, and pseudophakia in the right eye. The examiner then provided his "personal opinion" that the Veteran's DDT exposure was "probably responsible for the myasthenia gravis," and, "more likely than not responsible for the glaucoma." The examiner then noted that the Veteran's pseudophakia was "undoubtedly aggravated by and perhaps even caused by his diabetes," adding that his "glaucoma is also aggravated by the diabetes." However, the February 2014 VA examiner's opinions regarding a DDT etiology for myasthenia gravis and glaucoma are not adequate because the examiner did not provide a sufficient rationale for the conclusions that the Veteran's eye conditions were due to DDT exposure in service. Indeed, no rationale is evident from the examination report. The United States Court of Appeals for Veterans Claims (Court) has addressed such personal opinions, holding that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty to serve as medical evidence supportive of a claim. Bloom v. West, 12 Vet. App. 185, 187 (1999); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). For this reason, in its December 2015 remand the Board sought a new VA examination. A subsequent VA medical opinion was sought in in March 2016. The examiner reviewed the Veteran's records as well as the CDC's Hazardous Substance Fact Sheet addressing exposure to DDT. That fact sheet informed that the only eye condition associated with DDT exposure was eye irritation. The examiner specifically found that there was not medical evidence of any relationship, based on causation or aggravation, between DDT exposure and chronic open-angle glaucoma, ocular myasthenia gravis, or strabismus, which were eye conditions from which the Veteran suffered. The examiner accordingly concluded that it was not at least as likely as not that the Veteran's chronic open-angle glaucoma, ocular myasthenia gravis, or strabismus was caused or aggravated by the Veteran's exposure to DDT while in service and stationed in Korea. The March 2016 examiner noted the opinion of the February 2014 VA examining optometrist regarding a relationship between the Veteran's eye disability and his exposure to DDT in service, but the March 2016 examiner observed that the February 2014 VA examiner's opinion was merely a "personal opinion" not supported by any medical evidence, since there was no medical evidence to support such a relationship. The Veteran was also afforded a VA examination in February 2014 to address the likelihood that his diabetes mellitus was causally related to his DDT exposure in service while stationed in Korea. His diabetes mellitus was noted to have been diagnosed in 2004, with management by restricted diet and oral hypoglycemic agent. The examiner observed that in the Veteran's medical records treating physicians had attributed the Veteran's diabetes mellitus to his long-term use of prednisone, which the Veteran had taken for his ocular myasthenia gravis. The examiner then consulted with a VA specialist in occupational health who in turn contacted a doctor who had done extensive pesticide research at the University of Washington School of Public health. These consulting professionals informed that while some studies had been done, there was, as the VA examiner summarized, "nothing that raises a significant association between diabetes mellitus and DDT." On these bases, the examiner concluded that it was not at least as likely as not that the Veteran's diabetes mellitus was due to his exposure to DDT while in service. The causal association between long-term prednisone treatment and development of diabetes mellitus was considered in private treatment records, including an August 2000 record noting a history of steroid-induced diabetes mellitus and a June 2006 record observing that the Veteran's diabetes mellitus may be due to his prednisone. Thus, VA examination reports and VA and private treatment records support that the Veteran's diabetes mellitus may be attributed to his myasthenia gravis due to long-term prednisone treatment, and provide some support that the Veteran's pseudophakia and glaucoma may have been aggravated by his diabetes mellitus. However, these secondary interrelationships of causation or aggravation between claimed eye conditions and claimed diabetes mellitus cannot serve to support a finding of service connection as neither disability is, in fact, service connected. 38 C.F.R. § 3.310 (2015). The opinions of the February 2014 VA optometry examiner in favor of the claim were not supported by any rationale and are therefore, afforded no probative weight. See Stefl, supra. In contrast, the February 2014 VA examiner addressing etiology of diabetes mellitus and the March 2016 VA examiner addressing claimed eye disabilities, did support their opinions by rationales based on the medical record and current medical knowledge. The Board finds these opinions to be entitled to substantial weight as well-informed and well-reasoned and supported by current medical knowledge. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Relying on the February 2014 diabetes examiner's opinion and the March 2016 VA examiner's opinion, along with the other evidence of record, the Board concludes that the evidence preponderates against a causal link between service and a bilateral eye condition, to include ocular myasthenia gravis with right hyperopia and chronic open angle glaucoma, or diabetes mellitus. The preponderance of the evidence, based on these opinions and the weight of competent and credible evidence of record, is also against the claimed bilateral eye condition, to include ocular myasthenia gravis with right hyperopia and chronic open angle glaucoma, or diabetes mellitus having developed in service or within years immediately following service. The Board accordingly finds the preponderance of the evidence against the claims, either based on the claimed diseases or disabilities having developed in service or within the first post-service year, or based on their having developed as due to DDT exposure in service. Finally, as service connection has not been established for either condition, secondary service connection as due to either of these conditions cannot be established. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for a bilateral eye condition to include ocular myasthenia gravis with right hyperopia and chronic open angle glaucoma is denied. Entitlement to service connection for diabetes mellitus is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs