Citation Nr: 21066288 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-15 051 DATE: October 29, 2021 ORDER Service connection for a bilateral eye disorder other than macular degeneration is denied. Service connection for a thyroid disorder is denied. Service connection for hypertension is denied. REMANDED Entitlement to service connection for a heart disorder, to include as due to exposure to herbicide agents, is remanded. FINDINGS OF FACT 1. A bilateral eye disorder other than macular degeneration is not shown to be causally or etiologically related to any disease, injury, or incident during service. 2. A thyroid disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include exposure to herbicide agents. 3. Hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include exposure to herbicide agents, and did not manifest to a compensable degree within one year of separation from active duty. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral eye disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for hypothyroidism have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to January 1971, to include service in the Republic of Vietnam from October 1968 to October 1969, and from August 1979 to August 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In September 2019 and November 2020, the Board remanded the issues on appeal for additional development and the case now returns for further appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as cardiovascular-renal disease, to include hypertension, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. For purposes of the presumption, "herbicide agents" are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § § 3.307(a)(6)(i). As relevant to the instant case, veterans who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, are presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). As noted previously, the Veteran served in the Republic of Vietnam from October 1968 to October 1969 and, thus, is presumed to have been exposed to herbicide agents coincident with such service. For those veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure, provided such manifest to a compensable degree within a year after service or within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service, as relevant. 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.309(e), 3.307 (a)(6)(ii). Notwithstanding the foregoing presumption, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 1. Entitlement to service connection for a bilateral eye disorder other than macular degeneration. The Veteran asserts that he has a current bilateral eye disorder, other than his already service-connected macular degeneration, is attributable to the eye strain and exposure to sunlight he incurred when performing duties as a sharpshooter during service. In this regard, while the Veteran's service treatment records (STRs) are negative for any complaints, treatment, or diagnosis pertinent to a bilateral eye disorder, his DD Form 214 reflects that he served as an infantryman for almost 10 years and was awarded the Marksman Badge (M-16 Rifle). Further, the record reflects, as relevant, current diagnoses of meibomian gland dysfunction with associated dry eye syndrome, cataracts, and glaucoma as evidenced by private treatment records as well as January 2020 and June 2021 VA examinations. Thus, the remaining inquiry is whether the Veteran's current bilateral eye disorders, other than macular degeneration, is related to the eye strain and exposure to sunlight he incurred when performing duties as a sharpshooter during service. In this regard, in January 2020, a VA examiner interviewed the Veteran, reviewed the record, and conducted a physical examination, and opined that his dry eye syndrome was less likely than not related to his military service. In this regard, she noted that such disorder is a chronic disease with numerous causes that progresses with age. The examiner further indicated that the Veteran's meibomian gland dysfunction was likely the main cause of his dryness, and there was no documentation of the development of such condition to support any connection to his time in service. However, she did not specifically address whether the Veteran's dry eye syndrome was related to his reported in-service eye strain and exposure to sunlight when performing his duties as a sharpshooter, the etiology of his meibomian gland dysfunction, or the etiology of his diagnosed nuclear cataracts and glaucoma. Thus, the Board remanded the case in order to obtain an addendum opinion addressing such matters in November 2020. Thereafter, in June 2021, another VA examiner interviewed the Veteran, reviewed the record, and conducted a physical examination, and opined that the Veteran's current bilateral eye disorders are less likely than not incurred in or caused by an in-service injury, event, or illness. In this regard, he explained that there was no evidence in the Veteran's STRs that indicated signs or symptoms related to dry eye syndrome, cataracts, or glaucoma, and found that it was unlikely that eye strain and exposure to sunlight when performing duties as a sharpshooter would present as such disorders many years later. Rather, the examiner indicated that the Veteran's dry eye syndrome, to include meibomian gland dysfunction, and cataracts are common age-related conditions, and glaucoma is considered a hereditary condition. Thus, he concluded that natural age changes are the most likely cause of such disorders. The Board affords great probative weight to the June 2021 VA examiner's opinion as such considered all of the pertinent evidence of record, to include the Veteran's statements and his relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); 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"). Notably, there is no medical opinion to the contrary. The Board also considered the Veteran's assertions as to the etiology of his bilateral eye disorder; however, as a lay person, he does not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of an eye disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such requires knowledge of the inner workings of the eye and the impact strain and exposure to sunlight has on the eye. Thus, such matter may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran's opinion as to the etiology of his bilateral eye disorder is not competent evidence and, thus is afforded no probative weight. Therefore, the Board finds a bilateral eye disorder other than macular degeneration is not shown to be causally or etiologically related to any disease, injury, or incident during service. Consequently, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for a bilateral eye disorder. As such, that doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for a thyroid disorder, to include as due to exposure to herbicide agents. 3. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents. The Veteran contends that his currently diagnosed thyroid disorder and hypertension are related to his military service, to include, as relevant to the former disorder, the food he ate in Vietnam and, as relevant to both disorders, his acknowledged in-service exposure to herbicide agents. In this regard, the record reflects current diagnoses of hyperthyroidism, toxic enlargement of the thyroid, and hypertension as evidenced by VA treatment records and a January 2020 VA examination. Additionally, while the Veteran's STRs are negative for any complaints, treatment, or diagnoses referable to such disorders other than a single notation of an elevated blood pressure reading of 130/100 recorded in September 1984, his exposure to herbicide agents coincident with his service in the Republic of Vietnam has been acknowledged. Thus, the remaining inquiry is whether the Veteran's current thyroid disorder and hypertension are related to his military service, to include his acknowledged in-service exposure to herbicide agents. In this regard, while hypertension is not included in the list of diseases acknowledged to be presumptively related to exposure to herbicide agents, in Update 11 (2018), the National Academy of Science (NAS) Institute of Medicine (IOM) upgraded hypertension from its classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. Additionally, effective January 1, 2021, the National Defense Authorization Act (NDAA) authorized the addition of three diseases to the list of those presumed to be related to in-service exposure to herbicide agents, including hypothyroidism. See 38 U.S.C. § 1116(a)(2)(K). However, in the instant case, the record reflects that the Veteran's hypothyroidism manifested as a result of treatment with radioiodine for his Graves disease/hyperthyroidism. Thus, as there is affirmative evidence demonstrating that his hypothyroidism was due to an intercurrent cause, presumptive service connection for such disorder is not warranted. 38 C.F.R. § 3.307(d). Nonetheless, as noted previously, the Veteran is not precluded from establishing service connection with proof of direct causation. See Combee, supra. In this regard, January 2020, a VA examiner interviewed the Veteran, reviewed the record, and conducted a physical examination, and opined that his thyroid disorder and hypertension were less likely than not related to his military service. In support of such opinions, she noted that there were no complaints of thyroid issues during service, the Veteran's thyroid was normal from 1971 to 1985, and he was first noted to have mild thyroid enlargement in March 2007. The examiner also observed that, while the Veteran's STRs reflected one elevated blood pressure reading in September 1984, blood pressure readings prior to and after such date were within normal limits and a diagnosis of hypertension during service cannot be made based on one elevated blood pressure reading. In July 2020, the VA examiner opined that the Veteran's thyroid disorders and hypertension were less likely than not related to his in-service exposure to herbicide agents. In this regard, she noted the NAS IOM's Update 11 (2018), but found that limited or suggestive evidence means that epidemiologic research results suggest an association between exposure to herbicides and hypertension, and a firm conclusion is limited because chance, bias, and confounding factors could not be ruled out with confidence. The examiner ultimately based her conclusions on the fact that hyperthyroidism, toxic enlargement of the thyroid, and hypertension are not recognized presumptive conditions associated with herbicide exposure as conceded by VA. However, the mere fact that the Veteran's claimed diseases are not currently deemed presumptively related to service by regulation is an insufficient rationale for a negative opinion. Furthermore, the examiner did not address whether the Veteran's thyroid disorder is related to the food that he ate in Vietnam. Thus, the Board remanded the case in order to obtain an addendum opinion addressing such matters in November 2020. Thereafter, in July 2021, another VA examiner reviewed the record and opined that the Veteran's thyroid disorder and hypertension are less likely than not incurred in or caused by an in-service injury, event, or illness, to include, as relevant to the former disorder, the food he ate in Vietnam and, as relevant to both disorders, his acknowledged in-service exposure to herbicide agents. He further found that the Veteran's hypertension did not manifest to a compensable degree within one year of discharge from active duty. In support thereof, the examiner noted that a review of the Veteran's STRs did not reflect any indications of symptoms or findings that could indicate in-service onset of a thyroid disorder or hypertension. He further noted that neither a thyroid disorder nor hypertension would have been symptomatic in service and then had been of insufficient severity to avoid detection in the several decades after service. In this regard, the examiner found that the lack of any symptoms suggestive of a thyroid disorder or hypertension during service or many years after service rendered it less likely than not that such disorders were related to his military service, to include the food he ate in Vietnam and his in-service exposure to herbicide agents. The Board affords great probative weight to the January 2020, July 2020, and July 2021 VA examiners' opinions as such considered all of the pertinent evidence of record, to include the Veteran's statements and his relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez, supra; Stefl, supra. Notably, there is no medical opinion to the contrary. The Board also considered the Veteran's assertions as to the etiology of his thyroid disorder and hypertension; however, as a lay person, he does not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau, supra. In this regard, the etiology of a thyroid disorder and hypertension involve a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such requires knowledge of the inner workings of the endocrine and cardiovascular systems, respectively, and the impact types of food and exposure to herbicide agents have on them. Thus, such matter may not be competently addressed by lay statements. See Woehlaert, supra. Accordingly, the Veteran's opinion as to the etiology of his thyroid disorder and hypertension is not competent evidence and, thus is afforded no probative weight. Furthermore, as indicated previously, the highly probative July 2021 VA examiner's opinion indicates that the Veteran's hypertension did not manifest within one year of his separation from active duty. In this regard, such determination is consistent with the Veteran's STRs that reflect a single isolated elevated blood pressure reading in September 1984 and the diagnosis of hypertension many years after his separation from service. Further, there is no evidence of a continuity of relevant symptomatology. Thus, presumptive service connection for such disorder is not warranted. Based on the foregoing, the Board finds that a thyroid disorder and hypertension are not shown to be causally or etiologically related to any disease, injury, or incident during service, to include exposure to herbicide agents, and hypertension did not manifest to a compensable degree within one year of separation from active duty. Consequently, service connection for such disorders is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for a thyroid disorder and hypertension. As such, that doctrine is not applicable in the instant appeal and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 4. Entitlement to service connection for a heart disorder, to include as due to exposure to herbicide agents. Pursuant to the September 2019 remand, the Veteran was afforded a VA examination in January 2020 in order to determine the nature and etiology of his claimed heart disorder. At such time, the examiner observed that an October 2011 VA treatment record reflected that a resting electrocardiogram showed normal sinus rhythm with a few premature ventricular and atrial beats noted. She also observed the Veteran's reports of a racing heart with associated shortness of breath and chest pain. Further, upon a contemporaneous interview-based METs test, it was noted that the Veteran had dyspnea and fatigue at 5 to 7 METs, which she found to be due solely to his claimed heart disorder, and resulted in functional impairment described as having to stop work or activities at times. However, the examiner found that, based on a physical examination and diagnostic testing, to include an EKG and echocardiogram, the Veteran did not have a diagnosis of a heart disorder. Further, as he did not have complaints of chest pain or evidence of cardiac disease in service, evaluation by cardiology revealed no evidence of cardiac disease, and he only had an arrythmia of premature atrial contractions during a colonoscopy in a setting of otherwise essentially normal structural work up, it was less likely than not that the Veteran's claimed heart disorder was related to his military service. However, as noted in the November 2020 remand, the VA examiner's determination that the Veteran did not have a cardiac disorder, upon which she based her negative nexus opinion in part, appears to be contradicted by her finding that the Veteran had reduced METs and notation that his claimed heart disorder resulted in functional impairment. Thus, the Board remanded the claim in order to obtain an addendum opinion reconciling such findings. A new opinion was obtained in July 2021; however, despite the Board's specific directives, the VA examiner did not adequately address all inquiries. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, he opined that there is no objective evidence to support a current diagnosis of a heart disorder and indicated that, despite the January 2020 VA examiner's notation that the Veteran's METs level was due solely to his claimed heart disorder, the available data was insufficient to determine the etiology of such subjective complaints. Consequently, he found that it was less likely than not that the Veteran has a current heart disorder, and the interview-based METs represented a cardiac condition. In this regard, in Jones v. Shinseki, 23 Vet. App. 382, 388-390 (2010), the U.S. Court of Appeals for Veterans Claims (Court) noted that, in general, it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion. Therefore, it must be clear, from the examiner's statements that the examiner has indeed considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. Id.; Daves v. Nicholson, 21 Vet. App. 46 (2007). Thus, in finding that the available data was insufficient to determine the etiology of the Veteran's subjective complaints in the interview-based METs examination in January 2020 without further explanation, the July 2021 VA examiner did not provide an adequate rationale for his opinion. Furthermore, he did not offer an opinion as to whether the Veteran's symptoms result in functional impairment of earning capacity, which would be considered a disability for the purposes of establishing entitlement to VA compensation benefits. Accordingly, a new opinion should be obtained that adequately addresses such inquiries. The matter is REMANDED for the following action: Forward the record to an appropriate VA examiner, other than the examiner who offered the July 2021 opinion, to obtain an addendum opinion addressing the nature and etiology of the Veteran's claimed cardiac disorder. Following a review of the record, the examiner should address the below inquiries: (A) Reconcile the determination made at the January 2020 VA examination that the Veteran does not have a cardiac disorder with the contemporaneous findings that, upon an interview-based METs test, he had dyspnea and fatigue at 5 to 7 METs, which the examiner found to be due solely to his claimed heart disorder, and resulted in functional impairment described as having to stop work or activities at times. If the examiner finds that the available data is insufficient to address the foregoing inquiry, he or she should identify what additional data is necessary in order to do so. In this regard, if another examination of the Veteran is necessary, such should be scheduled. Further, if the examiner cannot address the foregoing inquiry without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data, but any member of the medical community at large could not provide such an opinion without resorting to speculation. (ii) If the examiner still finds that the Veteran does not have a current diagnosis of a cardiac disorder, he or she should offer an opinion as to whether his reported symptoms resulting in functional impairment of earning capacity and, if so, he or she is advised that the Veteran has a cardiac disability for the purpose of establishing entitlement to VA compensation benefits. (iii) For any currently diagnosed cardiac disorder or current cardiac disability for the purpose of establishing entitlement to VA compensation benefits, is it at least as likely as not (i.e., a 50 percent or greater probability) that such disorder/disability is related to his acknowledged in-service exposure to herbicide agents? The examiner is advised that the mere fact that the Veteran's claimed heart disorder is not currently deemed presumptively related to herbicide agents by VA regulation is an insufficient rationale for a negative opinion. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge 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.