Citation Nr: 21063658 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 16-20 309 DATE: October 15, 2021 ORDER Service connection for a disability manifested by visual impairment other than diabetic retinopathy, to include as due to herbicide agent exposure and/or as secondary to service-connected prostate cancer or diabetes mellitus type II, is denied. Service connection for a heart disability, to include as due to herbicide agent exposure and/or as secondary to service-connected prostate cancer or diabetes mellitus type II, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's cataracts and optic atrophy are the direct result of active service, are related to presumed herbicide agent exposure, or are secondary to service-connected prostate cancer or diabetes mellitus type II. 2. The preponderance of the evidence is against a finding that the Veteran has had a heart disability at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability manifested by visual impairment other than diabetic retinopathy, to include as due to herbicide agent exposure and/or as secondary to service-connected prostate cancer or diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a heart disability, to include as due to herbicide agent exposure and/or as secondary to service-connected prostate cancer or diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1966 to June 1969, including service in the Republic of Vietnam (Vietnam). These matters come before the Board of Veterans Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). These issues were most recently before the Board in October 2020, at which time they were remanded for further evidentiary development. Per the remand instructions, the Veteran was to be afforded VA examinations in connection with his claims. He did not attend any of the examinations and did not provide good cause for the missed examinations. Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. See 38 C.F.R. § 3.655. Pursuant to 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record; when the examination was scheduled in conjunction with a claim for increase or a reopened claim for a benefit which was previously disallowed, the claim shall be denied. 38 C.F.R. § 3.655(b). The Veteran was scheduled for VA examinations in February 2021. VA personnel contacted him telephone and by mail six times to inform him of the appointments. Examinations were rescheduled for May 2021. VA personnel contacted the Veteran by telephone and by mail six times to inform him of the appointments. The examinations were then rescheduled again for June 2021 and VA personnel contacted the Veteran by telephone and by mail five times to inform him of the appointments. He did not attend the examinations and they were cancelled. No good cause has been provided by either the Veteran or his representative for the missed examinations. As such, the claims must be rated based on the evidence of record. 38 C.F.R. § 3.655(b). Substantial compliance with the remand requests regarding the claims having been accomplished, the Board may proceed to consider the claims. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection The Veteran has contended that a visual impairment and a heart disability are the result of his active service, to include as due to presumed exposure to herbicide agents, or as the result of his service-connected prostate cancer or diabetes mellitus. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Service connection for certain chronic disorders, including cardiovascular-renal disease, may be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. 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. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Furthermore, if a veteran was exposed to herbicide agents (e.g., Agent Orange) during active service used in support of military operations in the Republic of Vietnam (Vietnam), presumptive service connection is warranted for certain specified diseases. 38 C.F.R. §§ 3.307, 3.309. A Veteran who served in Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307. The following diseases are deemed associated with herbicide agent exposure, under current VA regulation: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcomas. 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 41442-41449, 61 Fed. Reg. 57586-57589 (1996). Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection for a disability due to exposure to herbicide agents with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Turning to the evidence of record, the Veteran's service entrance examination noted normal eyes, ophthalmoscopic, pupils, and ocular motility. Distant vision was 20/20. He reported no eye trouble, no pain or pressure in his chest, and no palpitations or pounding heart. In September 1967, he sought medical treatment for chest discomfort. A March 1969 separation examination noted normal eyes, ophthalmoscopic, pupils, and ocular motility. Visual acuity was 20/20. The heart was normal and a negative cardio evaluation was noted. On a report of medical history, the Veteran indicated yes to eye trouble. It was noted that he had eye trouble in the past with no sequelae. He denied pain or pressure in his chest, palpitations, or pounding heart. Post-service, a cardiac consultation was conducted in December 1969 to evaluate possible cardiomegaly, left ventricle hypertrophy, and increased blood pressure. An electrocardiogram (ECG) was conducted which demonstrated cardiomegaly and ischemic changes. In January 1970, it was determined that the Veteran was medically disqualified for appointment, enlistment, or induction due to cardiomegaly and ischemic changes. An August 2008 private treatment record indicated that the Veteran's heart size with within normal limits. In March 2012, the Veteran was diagnosed with bilateral regular astigmatism, myopia, and nuclear sclerosis, and right eye optic nerve disorder/ischemic optic neuropathy. A VA eye examination was conducted in February 2013. The examiner stated that the Veteran had not been diagnosed with an eye condition other than congenital or developmental errors of refraction. Vision was decreased bilaterally. He had grade 3 cortical cataracts and grade 2 nuclear sclerosis in the right eye and grade 2 nuclear sclerosis and trace cortical cataracts in the left eye. The examiner stated that his decrease in visual acuity was not likely due to his cataracts. Bilateral optic atrophy, retinopathy, and retinal hemorrhage were diagnosed. The examiner determined that while it was likely that his retinal conditions could contribute to decreased vision, it was not likely that this Veteran's presentation upon examination would lead to the marked decrease shown on examination. The examiner further stated that cataracts were multifactorial in etiology and causes included aging. They were seen to progress more quickly, however, in the diabetic population. The grade 3 cortical right eye and trace cortical in the left eye, along with the grade 2 nuclear sclerotic cataracts seen in the 68-year old Veteran could be considered age appropriate and were less likely than not responsible for his marked decrease in visual acuity. Scattered dot and blot hemorrhages were consistent with diabetic retinopathy. The etiology of optic atrophy was unknown and a determination of etiology was impossible without resorting to speculation. A June 2013 private treatment record noted vitreous floaters, age-related macular degeneration, nuclear sclerosis cataract, diabetes with ocular involvement, suspected glaucoma, and non-proliferative diabetic retinopathy. A chest x-ray conducted in May 2014 noted that the heart was mildly enlarged. There were no other cardiac findings. In December 2014, it was noted that the Veteran had no current symptoms of cardiomegaly. In March 2015, a VA heart conditions opinion was obtained. The clinician stated that the Veteran had no history of heart disease and no current diagnosis of a heart condition. Another VA eye examination was conducted in May 2015. Bilateral cataracts and optic atrophy were diagnosed. The examiner determined that cataracts were likely contributing to decreased visual acuities in conjunction with optic nerve atrophy. It was impossible to determine to what degree each condition independently affected vision. The examiner stated that cataracts were multifactorial in etiology and causes included aging. Some types were seen to progress more quickly, however, in the diabetic population. The grade 3 cortical right eye and trace cortical in the left eye along with the grade 2 nuclear sclerotic cataracts seen in the 70-year old Veteran could be considered age appropriate and were less likely partially responsible for his marked decrease in bilateral visual acuity. The further decreased acuities, right worse than left, were likely a result of progressed optic nerve atrophy which resulted in vision limited to the perception of hand motion at 5 feet and an afferent pupillary defect in the right eye. No diabetic retinopathy was noted in either eye. 1. Service connection for a disability manifested by visual impairment other than diabetic retinopathy, to include as due to herbicide agent exposure and/or as secondary to service-connected prostate cancer or diabetes mellitus type II, is denied. Service connection for a visual impairment is not warranted. The Veteran is already service connected for diabetic retinopathy. The other ocular diagnoses, cataracts and optic atrophy, were not diagnosed during active service. They were first diagnosed in 2012, many years after separation. Cataracts and optic atrophy are not conditions presumptively linked to herbicide agent exposure. Further, there is no evidence that those conditions are the result of direct exposure. See Combee v. Brown, 34 F.3d at 1042. Finally, although the VA examiner stated that some types of cataracts progress more quickly in the diabetic population, she did not indicate that the Veteran's particular condition was aggravated by his diabetes mellitus. Further, she determined that his eye conditions were appropriate to his age. Although there is no medical opinion of record addressing herbicide agent exposure and secondary service connection, VA made numerous attempts to conduct an examination of the Veteran to obtain such opinions. He has not made himself available for an examination. Although VA has a duty to assist in the development of a claim, such duty is not "a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Rather, the Veteran also has an obligation to assist in the adjudication of his claim. "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood, 1 Vet. App. at 195. The Board finds that the preponderance of the available evidence is against a finding that a disability manifested by visual impairment other than diabetic retinopathy is directly related to service, due to herbicide agent exposure, or secondary to service-connected prostate cancer or diabetes mellitus type II. Cataracts and optic atrophy were first diagnosed many years after service, there is no evidence of record that the conditions are related to herbicide agent exposure, and they have been determined to be appropriate to the Veteran's advanced age. Accordingly, service connection is not warranted. 2. Service connection for a heart disability, to include as due to herbicide agent exposure and/or as secondary to service-connected prostate cancer or diabetes mellitus type II, is denied. Service connection for a heart disability is not warranted. The one complaint of chest discomfort in service appeared to resolve as the Veteran himself at separation denied pain or pressure in his chest, palpitations, or pounding heart. Within a year of separation, he was diagnosed with cardiomegaly and ischemic changes. However, there is no indication of any cardiovascular condition during the appeal period other than a mildly enlarged heart. The March 2015 VA examiner determined that the Veteran did not have a heart disability. Without objective symptoms or medical findings that mild cardiomegaly resulted in some pathology indicative of disability, the presence of cardiomegaly is merely a clinical finding, rather than a disability as defined by VA, referring to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Although ischemic changes were diagnosed within a year of separation, there is no indication that the Veteran had ischemic changes at any point during the appeal period. A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). See also McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). See also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). As there is no diagnosis throughout the appeal period of ischemic changes or any other cardiovascular condition, service connection is not warranted. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.