Citation Nr: 1759366 Decision Date: 12/20/17 Archive Date: 12/28/17 DOCKET NO. 09-11 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an eye disorder, to include as secondary to service-connected diabetes mellitus or herbicide exposure. 2 .Entitlement to service connection for a bladder disorder, to include as secondary to service-connected diabetes mellitus or herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Davis, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to October 1968. He served in Vietnam and received the Combat Action Ribbon, among other decorations. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board previously remanded this case in March 2016 and April 2017 to obtain medical opinions. FINDINGS OF FACT 1. The Veteran does not have an eye disability that was caused or aggravated by a disease or injury in service, caused or aggravated by a service-connected disease or injury, or is otherwise related to the Veteran's service, to include in-service exposure to herbicide agents. 2. The Veteran does not have a bladder disability that was caused or aggravated by a disease or injury in service, caused or aggravated by a service-connected disease or injury, or is otherwise related to the Veteran's service, to include in-service exposure to herbicide agents. CONCLUSION OF LAW 1. An eye disability was not incurred or aggravated in service or by a service- connected disability, and may not be so presumed. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 2. A bladder disorder was not incurred or aggravated in service or by a service- connected disability, and may not be so presumed. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to notify and Assist The Veteran asserts that his claimed eye and bladder disorders are directly related to service, to include presumed herbicide exposure in Vietnam; or, alternatively, proximately caused or aggravated by his service-connected diabetes mellitus. In the most recent brief to the Board, the Veteran's representative contended that a VA examination was warranted to determine if the Veteran's bladder symptoms (urinary frequency and incontinence) were due to service-connected diabetes mellitus. However, previous examinations; including the most recent VA medical opinion provided in June 2017; addressed this theory. Neither the Veteran nor his representative has raised any other issues with VA's compliance with its duties to notify and assist the Veteran. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Applicable Law and Analysis Service connection requires: (1) a current disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement of a current disability is satisfied when the Veteran has a disability near the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). 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 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b) (2017). Service connection for certain listed diseases is presumed for Veterans with exposure to herbicides during active duty. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a), 3.309(e). Service connection is presumed for listed diseases appearing in veterans with in-service herbicide exposure. Herbicide exposure is presumed for veterans who served in Vietnam during the Vietnam era. 38 U.S.C.A. § 1116 (2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2017). The conditions at issue in this appeal are not listed diseases; but service connection could still be established with evidence of direct causation. Stefl v. Nicholson, 21 Vet App 120 (2007). Eye Disability With respect to the claimed eye disorder, the Veteran has been afforded several VA examinations and addendum opinions. In an April 2011 VA examination, the examiner determined that the Veteran had presbyopia. The examiner additionally noted the presence of trace nuclear sclerosis, but no signs of diabetic retinopathy. In August 2016, the examiner opined that the Veteran had cataract of the left eye, which had been noted as the trace nuclear sclerosis, was less likely than not related to service, to include herbicide exposure, or proximately due to or aggravated by diabetes mellitus. It was noted to be age related. She noted that most people over the age of 60 have some degree of cataract formation and that cataract formation was rare in diabetes patients. The issue was again remanded in April 2017 for an addendum opinion. VA regulations specifically prohibit service connection for refractive error of the eyes, which includes presbyopia, unless such error was subjected to a superimposed disease or injury during service that resulted in an additional disability. See 38 C.F.R. § 3.303 (c); VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990); see also VA ADJUDICATION PROCEDURE MANUAL (M21-1), Part III, Subpart iv, 4.B.1.d. The new VA opinion was obtained in May 2017. The examiner reported that her review of the claims files showed no evidence to support a finding that a refractive error, to include presbyopia, "was subjected to a superimposed injury or disease in service (to include presumed herbicide exposure) that resulted in an additional disability of the eye." She also noted that refractive errors began in childhood and were subject to age related changes. After reviewing the claims file, the examiner found, as indicated above, no medical evidence to support that any current refractive error was superimposed by a service connected condition or herbicide exposure. Refractive errors are not considered disabilities for which VA compensation may be paid. 38 C.F.R. § 3.303(c). The other eye condition identified currently is a cataract. There is no competent evidence linking this condition to a disease or injury in service, including herbicide exposure; nor is there such evidence linking the cataract to the service connected diabetes. The opinion provided by the VA examiner in May 2017 is the most probative evidence of record. She provided reasons based on statistical evidence and experience for finding that the cataract was not related to diabetes or an event in service. T The other opinion contained in the claims file is that of the Veteran. He asserts that his current eye disability is directly related to service, to include presumed herbicide exposure in Vietnam; or, alternatively, proximately caused or aggravated by his service-connected diabetes mellitus. These opinions involve complex medical and scientific questions that would require expertise that the Veteran is not shown to possess. The VA examiner has experience, expertise, and training that the Veteran, as a layperson, is not shown to have. As the most probative evidence is against the claim, reasonable doubt does not arise and the claim must be denied. Bladder Disability In a June 2016 medical opinion, a clinician opined that the Veteran's bladder disorder, currently diagnosed as incontinence, was less likely than not incurred or caused by an in-service event or illness. In so doing, the clinician determined that the Veteran's medical records did not contain a diagnosis of chronic urinary incontinence and were negative for exploring any condition of urinary incontinence. The clinician stated that this determination did not exclude occasional accidents due to the Veteran's documented cognitive disorder. He further commented that the Veteran's diabetes mellitus sugars are not within the range known to create diabetic polyuria. While, the June 2016 clinician stated that his opinion did not exclude occasional accidents and that the Veteran's diabetes did not create diabetic polyuria, she did not comment on the June 2008 VA examination that indicated that the Veteran suffered from genitourinary symptoms due to diabetes. Moreover, the June 2016 clinician did not reconcile his opinion with relevant medical evidence in determining that the Veteran did not have a diagnosis and the record did not contain evidence of chronic urinary incontinence. Indeed, in an April 2012 VA treatment record, a caretaker voiced her concerns about the Veteran's urinary frequency and stated that the Veteran's incontinence was not a new problem. Additionally, in a May 2014 VA treatment record, the Veteran received an assessment of urinary incontinence during the pendency of the appeal and reported having occasional incontinence in the weeks prior to the appointment. As the record indicates that there is a history of urinary incontinence, additional development was required to assess the nature of any current or resolved bladder disorder. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an adequate medical opinion must be based upon an accurate factual premise); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (determining that the requirement of a current disability is satisfied if it is diagnosed at the time the claim was filed or during the pendency of the claim, even if the disability subsequently resolves). Therefore, in April 2017 the Board remanded this issue for an addendum opinion to clarify whether any bladder disorder is directly caused by service, to include consideration of herbicide exposure, or proximately caused or aggravated by service-connected diabetes mellitus. The new VA opinion was provided in June 2017. The examiner stated that his review showed no evidence to support a finding that the Veteran had ever had a diagnosed bladder disorder. The examiner also noted evidence that the Veteran's diabetes mellitus was well controlled and had not resulted in a residual bladder disorder. He further noted that that reported symptoms of a bladder condition were not consistent and had not led to a clinical diagnosis or treatment. The examiner opined that it was less likely than not that a bladder condition was caused or aggravated by the service-connected diabetes mellitus, or presumed herbicide exposure. He did not find a current bladder disability. He noted that there were no objective lab reports supporting the notion of a bladder condition; nor were there any objective lab reports showing that the Veteran had active diabetes mellitus II while complaining of bladder symptoms. He notes that "no polyuria, no abnormal sugars, no UA abnormalities, nothing of record supports a contention of ongoing or recurrent "bladder condition."" The opinion provided by the VA examiner is the most probative evidence addressing whether the Veteran has a service connected bladder disability. The examiner reviewed the claims file, provided an opinion, and included a rationale that was comprehensive and consistent with the evidence of record. The other opinion contained in the claims file is that of the Veteran. While he asserts that his claimed bladder disorder is directly related to service, to include presumed herbicide exposure in Vietnam; or, alternatively, proximately caused or aggravated by his service-connected diabetes mellitus, the Board finds that the opinion provided by the VA examiner needs to be afforded more probative weight than the Veteran's assertions. The VA examiner has experience, expertise, and training that the Veteran, as a layperson, is not shown to have. As such, his opinion is afforded significant weight, and it is the most probative evidence of record. ORDER Entitlement to service connection for an eye disorder, to include as secondary to service-connected diabetes mellitus and/or herbicide exposure is denied. Entitlement to service connection for a bladder disorder, to include as secondary to service-connected diabetes mellitus and/or herbicide exposure is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs