Citation Nr: 1808986 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 12-13 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for an eye disorder, to include as secondary to diabetes mellitus type II and/or due to in-service exposure to herbicides. REPRESENTATION Veteran represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Smith, Associate Counsel INTRODUCTION The Veteran served honorably on active duty in the U.S. Navy from September 1961 to January 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from December 2007 and December 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In November 2013, the Veteran presented hearing testimony by live videoconference before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding is located in the Legacy Content Manager. This case was previously remanded by the Board in August 2014 and April 2017, and has since been returned for further appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran is not presumed to be exposed to herbicides; herbicide exposure is not otherwise shown; and service connection for diabetes mellitus, type II, is not established. 2. Blepharoconjunctivitis and dry eye syndrome did not manifest in service and are not related to the Veteran's period of active service. CONCLUSION OF LAW The criteria for service connection for blepharoconjunctivitis and dry eye syndrome, to include as secondary to diabetes mellitus, type II, and/or in-service herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In this case, VA's duty to notify was satisfied by letters dated May 2007, March 2008, November 2009, and July 2010. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. 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). The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in November 2013. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2016); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. In August 2014, the Board denied service connection for diabetes mellitus, and remanded the claim of entitlement to service connection for an eye disorder to obtain outstanding relevant VA and private treatment records and to afford the Veteran a VA examination to ascertain the etiology of the Veteran's claimed eye disorder. The April 2017 remand directed the agency of original jurisdiction (AOJ) to undertake appropriate efforts to obtain any outstanding VA or private treatment records, and to secure an addendum opinion on the etiology of the Veteran's claimed eye disorder. In May 2017, in response to a post remand development letter, the Veteran asserted that he had additional evidence to submit and requested 60 days to submit the evidence. Since that time, the Veteran has not submitted any additional evidence, or returned the necessary authorization forms to allow VA to request private records on his behalf. All outstanding VA treatment records were obtained, and an adequate addendum opinion was obtained in June 2017. The Board finds that there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection The Veteran seeks service connection for an eye condition that he asserts is the result of his diabetes mellitus type II and/or in-service exposure to herbicides. 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, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Compensation for a present disability requires: (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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). 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) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A veteran exposed to herbicide agents may also be entitled to presumptive service connection for certain enumerated diseases. A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a)(6)(iii) (2017). For veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 (2012) and 38 C.F.R. § 3.307 (a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 (2012) and 38 C.F.R. § 3.307 (d) (2017) are also satisfied. 38 C.F.R. § 3.309 (e). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For example, a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n. 4. Also, non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Non-expert nexus opinion evidence may not be categorically rejected. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The complexity of the question and whether a nexus opinion or diagnosis could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. In sum, whether non-expert (lay) diagnoses or nexus opinions are competent evidence depends on the on the question at issue and the particular facts of the case. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence of the record; every item of evidence does not have the same probative value. When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). According to STRs, myopia was noted upon entrance in April 1961. A December 1965 record documented the Veteran struck his left eyebrow on a curb, and had a 1 centimeter laceration on the left eyebrow and contusion on the left frontal scalp. Imaging studies of the skull were within normal limits. It was noted the Veteran had a conjunctival hemorrhage on the lateral aspect of the left eye. On separation, the only eye abnormality noted was defective visual acuity corrected by lens. VA treatment records show that in January 2007 the Veteran complained that his eyes felt tired all the time, and the assessment was tired eyes due to hypothyroidism. In May 2007 the Veteran was assessed as having a blocked Meibomian gland. In September and November 2007, the Veteran had complaints of eye irritation, heaviness, and blurred vision. Blepharoconjunctivitis was assessed but resolved by December 2007. A May 2011 optometry note documented the Veteran had dry eye syndrome bilaterally. An August 2012 VA ophthalmological record noted the Veteran had diabetes mellitus, type II, without retinopathy. At the November 2013 hearing, the Veteran testified that he used eye drops 4 times a day and a cold compress. He reported first experiencing eye strain over the past decade or so and worsening eye symptoms within the past 4 years. The Veteran underwent a VA eye conditions examination in September 2014. The examiner identified eye diagnoses of sub-conjunctival hemorrhage, with a diagnosis date of December 1965 and dry eye with a diagnosis date of January 2007. The examiner also diagnosed pseudophakia per the Veteran's report. The examiner opined that none of the disorders were caused by the left frontal scalp contusion of sub-conjunctival hemorrhage incident of December 1965. No rationale was provided. In an October 2014 addendum opinion, the examiner stated the Veteran had corneal staining and pseudophakia, neither of which were the result of the sub-conjunctival hemorrhage suffered in 1965, but provided no rationale. An addendum opinion was provided in June 2017 per the Board's remand directives. The examiner indicated he reviewed all relevant treatment records. The examiner reported that the Veteran's ocular diagnoses since April 2007 included diabetes mellitus type II without retinopathy, blepharoconjunctivitis, and dry eye syndrome. The examiner opined that that the Veteran's diagnoses since April 2007 were not etiologically related to the sub-conjunctival hemorrhage in service. The examiner summarized that the Veteran was diagnosed in 1965 with a left eye sub-conjunctival hemorrhage. The incident was documented in his military medical chart with a note that the Veteran had struck his left eyebrow on a curb and had a 1 centimeter laceration. Imaging studies of the skull were within normal limits. Another note documented that the Veteran had a sub-conjunctival hemorrhage on the lateral aspect of the left eye that required no treatment. The examiner explained that a sub-conjunctival hemorrhage was when one or more blood spots appear on the white of the eye. The examiner explained that sub-conjunctival hemorrhage was due to the Veteran's in-service fall, and was almost always harmless and often healed on its own. The examiner explained that a sub-conjunctival hemorrhage was essentially a bruise that healed and had no effect on the Veteran's present eye diagnoses. The examiner noted that there was no medical literature linking the Veteran's in-service sub-conjunctival hemorrhage to the Veteran's other eye diagnoses. Based on the foregoing, entitlement to service connection for an eye disorder, to include the diagnosed blepharoconjunctivitis and dry eye syndrome, are not met. First, entitlement to service connection under a theory of secondary service connection is not warranted. The Veteran's claim of entitlement to service connection for diabetes mellitus was denied in the August 2014 Board decision. Thus, entitlement to service connection for an eye condition as secondary to a service-connected disability-e.g., diabetes mellitus, type II-cannot be established. 38 C.F.R. § 3.310. Second, service connection is also not warranted under the presumptive provisions for herbicide exposed veterans because herbicide exposure cannot be presumed and is not otherwise shown. Service in Vietnam between January 9, 1962, and May 7, 1975, includes service then in the waters offshore and in other locations if the conditions involved duty or visitation there. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran must have set foot on the land mass or been in the "brown" inland waters of Vietnam at some point. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). In this appeal, the Board has already found that the Veteran may not be presumed to be exposed to herbicides, and exposure to herbicides was not otherwise shown. See August 2014 Board Decision (denying entitlement to service connection for diabetes mellitus due to herbicide exposure). No evidence has been received since the August 2014 decision that would cause the Board to reach a different conclusion now. Thus, entitlement to service connection for blepharoconjunctivitis and dry eye syndrome as due to in-service herbicide exposure is not warranted. Third, service connection is not otherwise warranted on a direct basis. The June 2017 examiner provided an adequate opinion against the claim, explaining that the Veteran's in-service eye injury had resolved and that his currently diagnosed eye conditions were not related to that injury. The examiner's opinion was supported by a thorough rationale, and there is no medical opinion to the contrary. The Board has considered the Veteran's lay opinion that his eye conditions are related to his period of service, but he has not been shown to have the medical knowledge necessary to provide an etiological opinion. Thus, the Veteran's lay opinion is not competent evidence against the claim. In sum, the preponderance of the evidence demonstrates that blepharoconjunctivitis and dry eye syndrome were not caused or aggravated by the Veteran's period of service, and the claim must be denied. ORDER Service connection for blepharoconjunctivitis and dry eye syndrome, to include as secondary to diabetes mellitus, type II, and/or in-service herbicide exposure, is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs