Citation Nr: 18141082 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 10-40 650 DATE: October 9, 2018 ORDER Entitlement to service connection for a bilateral eye disability, including as due to herbicide agent exposure or in the alternative secondary to the service-connected diabetes mellitus, type II is denied. FINDING OF FACT The Veteran’s bilateral eye condition is not etiologically related to active service nor was it caused or aggravated by the service-connected diabetes mellitus, type II. CONCLUSION OF LAW The service-connection criteria for a bilateral eye disability, to include as due to herbicide agent exposure or as secondary to service-connected diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from November 1967 to June 1969. Entitlement to service connection for a bilateral eye disability, including as due to herbicide agent exposure or as secondary to the service-connected diabetes mellitus, type II Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present 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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain enumerated diseases, including diabetes mellitus and ischemic heart disease, shall be presumptively service-connected even where there is no record of such disease during service, provided that the disease is manifested to a compensable degree as set forth in 38 C.F.R. § 3.307, and the rebuttable presumption provisions of 38 C.F.R. § 3.307 are met. See 38 C.F.R. § 3.309(e); see also 38 C.F.R. § 3.307(a)(6)(ii) (providing that with the exception of chloracne or other acneform disease, porphyria cutanea tarda, and early onset peripheral neuropathy, the diseases listed in 38 C.F.R. § 3.309(e) must be manifest to a degree of 10 percent or more at any time after service). VA has confirmed that the Veteran had in country service in the Republic of Vietnam during the Vietnam Era, therefore he is presumed to have been exposed to herbicides during such service. However, with respect to the current appeal, a bilateral eye disability is not among the disorders subject to presumptive service connection under 38 C.F.R. § 3.309(e). Accordingly, service connection for the claimed bilateral eye disability as presumed as due to in-service herbicide exposure is not warranted. However, the regulations governing presumptive service connection for herbicide exposure do not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (1994). As such, the Board will adjudicate the claim on a theory of direct entitlement to service connection and address the Veteran’s contentions regarding secondary service connection. With regard to a present disability, a January 2018 VA examination show a diagnosis of age-related nuclear sclerotic cataract in both eyes and age-related posterior vitreous detachment in the right eye. Thus, the first Shedden/Caluza element is met. With regard to an in-service disease or injury, the Veteran’s service treatment records (STRs) do not show any treatment or diagnoses related to an eye disability. Upon separation in June 1969, no eye defects were noted. Thus, to the extent that a theory has been raised that the eye condition arose in service, the Board finds that the evidence does not support such a contention. As stated previously, however, the Veteran is presumed to have been exposed to herbicide agents during service. Nonetheless preponderance of the evidence weighs against a direct causal relationship between the Veteran’s herbicide exposure and a bilateral eye disability. With regard to a relationship between herbicide exposure and service, in May 2018, a VHA medical examiner opined it is less likely than not that the Veteran’s bilateral eye disability was caused or aggravated by his in-service exposure to herbicides. The examiner provided the Veteran’s age-related nuclear sclerotic cataracts were developed as a result of the age of the Veteran. There is a lack of conflicting evidence, and the examiner’s opinion warrants probative weight. The medical evidence does not support the Veteran’s herbicide agent exposure directly caused his bilateral eye disability. The question remains if there is a medical nexus between the Veteran’s service connected disabilities, including diabetes mellitus, type II, and his current bilateral eye disability. Upon VA examination in April 2010, the examiner found the Veteran’s mild astigmatism with presbyopia was not secondary to diabetes mellitus, type II. However, the examiner did not have the opportunity to review the subsequent treatment records documenting bilateral cataracts. Upon VA examination in January 2018, the examiner found the Veteran presented with a diagnosis of age-related nuclear sclerotic cataract in both eyes. There was no evidence diabetic retinopathy or other pathology. The examiner concluded the Veteran’s cataracts were not proximately due to or the result of the service-connected diabetes mellitus, type II. The examiner provided that the Veteran was diagnosed in 2010 with age-related cataracts, unrelated to diabetes. In May 2018 upon review of the Veteran’s electronic file, a VHA medical examiner provided the Veteran’s bilateral eye disability was not caused or aggravated by the Veteran’s service-connected diabetes mellitus, type II. The examiner provided that medical literature provided cataract formation in adults is the result of aging or injury to the eye. The examiner provided in the case of the Veteran it is more plausible that the progression of the Veteran’s eye disability is due to age. Further, the examiner stated the onset of cataract development is expected in patients in the early to mid-60s irrespective of the Veteran’s type II diabetes diagnosis. The Board acknowledges the Veteran’s several statements submitted which related the Veteran’s eye disability to his diabetes mellitus. See March 2010 Veteran’s Statement, June 2010 Veteran’s Statement, November 2010 Hearing Testimony. However, the Board finds that the weight of the evidence is against finding the Veteran’s bilateral eye disability is related to his active service or the service-connected diabetes mellitus, type II. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. As the preponderance of the evidence is against the claim, further application of the benefit-of-the-doubt doctrine is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. (Continued on the next page)   The Board is grateful for the Veteran’s honorable service, and this decision is not meant to detract in any way from the Veteran’s service. Unfortunately, however, for the reasons and bases discussed above, the competent and probative evidence of record preponderates against a finding that the Veteran’s bilateral eye disability is service connected. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laura A. Crawford, Associate Counsel