Citation Nr: 21066392 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 19-07 977 DATE: October 29, 2021 ORDER Service connection for a liver condition due to herbicide exposure is denied. Service connection for cataracts is granted. VETERAN'S CONTENTIONS The Veteran contends that he has a liver condition related to in-service exposure to herbicide agents including Agent Orange. The Veteran contends that he developed cataracts related to an in-service eye injury. FINDINGS OF FACT 1. The Veteran's liver condition was not shown in service or for many years thereafter, and is not otherwise related to service, including herbicide exposure. 2. The Veteran's cataracts are related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a liver condition, to include as due to herbicide exposure, are not met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for cataracts are met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131; 38 C.F.R. §§ 3.303(b) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1961 to August 1970. These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is currently with the RO in Phoenix, Arizona. These matters were previously before the Board at which time they were remanded for further development. The Board has expanded the claim of service connection for hepatic steatosis to one for service connection for a liver condition. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). Service Connection Generally, 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 service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Additionally, a veteran who, during active service, served in the Republic of Vietnam (Vietnam) during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii). If a veteran is presumed to have been exposed to an herbicide during such active service, the veteran shall be service connected for the diseases listed under 38 C.F.R. § 3.309 (e) if the disability manifested to a degree of 10 percent or more at any time after active service. See 38 C.F.R. § 3.307(a)(6)(ii). Where presumptive service connection is not warranted because the claimed disability is not listed under 38 C.F.R. § 3.309(e), the Board must consider whether there is competent evidence that shows that the claimed condition was actually caused by the Veteran's active service, including herbicide exposure. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Combee v. Brown, 34 F.3d 1039, 1042 (1994). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107(b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). 1. Entitlement to service connection for a liver condition due to herbicide exposure At the outset, the Board finds that although the Veteran served in the Republic of Vietnam (Vietnam) during the Vietnam era, service connection for hepatic steatosis is not warranted on a presumptive basis as due to herbicide exposure, including Agent Orange, because the herbicide presumption set forth in 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 does not apply. Hepatic steatosis (fatty liver disease) and primary biliary cirrhosis are not enumerated disabilities that are presumed due to herbicide exposure listed under 38 C.F.R. § 3.309(e). Turning to the issue of direct causation, in addressing the criterion of a current diagnosis, the evidence of record includes a December 2020 VA Hepatitis, Cirrhosis, and Other Liver Conditions report of examination in which the examiner diagnosed the Veteran with primary biliary cirrhosis and fatty liver disease. The examiner noted that the Veteran was first diagnosed with primary biliary cirrhosis in 2006 and fatty liver disease in 2010. In addressing in-service incurrence, the Veteran's military personnel records confirm service in Vietnam. The RO conceded herbicide exposure in its April 2021 Supplemental Statement of the Case (SSOC) pursuant to an April 2020 Herbicide Exposure Verification Memorandum. The Veteran's service treatment records (STRs) are void of complaints of or treatment for a liver condition. In addressing nexus, to the extent that the Veteran has stated that he has a liver condition attributable to service, the Board finds that he is competent to report on his symptoms and that of which he has personal knowledge, but he is not competent to provide an opinion as to the etiology of his disabilities because such a question is not answerable by the application of knowledge within the realm of a lay person. See Layno, 6 Vet. App. at 469-70; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board finds that the Veteran is not competent to relate his liver condition to his service or to any incident therein. The evidence of record otherwise includes an opinion from the December 2020 VA examiner concluding that the claimed condition was less likely than not incurred in or caused by any aspect of the Veteran's service. The examiner explained that it is not clear what causes primary biliary cholangitis, but many experts consider it an autoimmune disease in which the body turns against its own cells. The examiner further reasoned that primary biliary cholangitis is not a disease presumed to be due to Agent Orange exposure and fatty liver disease is due to fat deposited on the liver by the body. As per the Mayo Clinic, experts do not know exactly why some people accumulate fat in the liver while others do not. Similarly, there is limited understanding of why some fatty livers develop inflammation that progresses to cirrhosis. Non-alcoholic fatty liver disease and non-alcoholic steatohepatitis are both linked to being overweight or obesity; insulin resistance, in which your cells don't take up sugar in response to the hormone insulin; high blood sugar (hyperglycemia), indicating prediabetes or type II diabetes; and high levels of fats, particularly triglycerides in the blood. The Board finds the December 2020 VA examiner opinion to be highly probative. The opinion was based on examination of the Veteran, a review of the claims file, relevant facts, and peer reviewed medical literature, and the examiner provided a detailed rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There is no competent medical opinion of record to the contrary. In sum, without any competent evidence that the Veteran has a liver condition related to service, direct service connection is not warranted. Additionally, there is no indication that the condition manifested within one year of service. The Board finds that the Veteran's liver condition was not shown in service or for many years thereafter, and is not otherwise related to service, including herbicide exposure; therefore, service connection is not warranted. There is no doubt to be resolved in this case. 38 U.S.C. § 5107. 2. Entitlement to service connection for cataracts In addressing the criterion of a current diagnosis, the evidence of record includes a September 2020 VA Eye Conditions report of examination in which the examiner diagnosed the Veteran with post-surgery bilateral cataracts. The Veteran underwent cataract eye surgery of the left eye in 2006 and the right eye in 2007. In addressing in-service incurrence, the Veteran's military personnel records confirm service in Vietnam. The RO conceded herbicide exposure in its April 2021 SSOC pursuant to an April 2020 Herbicide Exposure Verification Memorandum. The Veteran's STRs document that in January 1969 the Veteran had a small particle lodged under his upper right eye lid. His eyes were flushed, and the particle was removed. There were no apparent signs of abrasion. He suffered a corneal abrasion to the left eye in October 1969 and he was prescribed an eye patch, rest, pain medication, and bacitracin ointment. Two days later the Veteran's left corneal abrasion was resolving; however, he required an eye patch and ointment. In addressing nexus, the evidence of record includes a private opinion from Dr. M.B.S. concluding that it was at least as likely as not that the Veteran's exposure to chemicals while in the service was the direct cause of his cataracts. Dr. M.B.S. reasoned that according to VA, the two active ingredients in the Agent Orange herbicide combination were equal amounts of 2,4-dichlorophenoxyacetic acid (2,4-D) and 2,4,5-trichlorophenoxyacetic acid (2,4,5-T), which contained traces of 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD). The physician explained that currently, the most prevalent ocular problems in Vietnam veterans are age-related macular degeneration, cataracts, glaucoma, and diabetic retinopathy. The 2018 Veterans and Agent Orange Update described ocular health issues involving chemical agents that most often arise from acute, direct contact with caustic or corrosive substances that may have permanent consequences. Ocular impairment arising from systemic exposure to toxic agents may be mediated by nerve damage. Cataracts can be induced by chronic internal exposure of the lens to chemicals. Additionally, as of late, there have also been several recent reports of ocular activity associated with AHR-induction or TCDD exposure in rats, mice, and human nonpigmented ciliary epithelial cells. In fact, compared to the general population, the Vietnam veterans had elevated prevalence of cataracts, among other eye conditions. Dr. M.B.S. also opined that it was at least as likely as not that the eye injuries sustained during his time in the Navy further contributed to the development of cataracts. Dr. M.B.S. noted that the Veteran sustained eye injuries during service in 1969. His right eye had a small particle lodge under the eye lid. The Veteran then experienced a corneal abrasion to the left eye just months later. Southwestern Eye Center indicated that rather than physical changes associated with advanced age, early onset cataracts can have a variety of causes that do include injury. An injury to the eye can result in damage that could cause a portion of an eye's lens to become cloudy, or opaque, often resulting in a "stellate" or star-type pattern. Such a mechanism can warrant cataract surgery when necessary. The opinion from Dr. M.B.S. was based upon a review of the Veteran's medical records and consideration of his reported history; and it was accompanied with a rationale which is consistent with the evidence of record. Hence, the opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The Board acknowledges that the evidence of record also includes a September 2020 VA opinion finding that the claimed condition was less likely than not incurred in or caused by service, including as a result of exposure to herbicide agents. However, the Board finds the September 2020 VA examiner opinion less probative than the private opinion from Dr. M.B.S. The September 2020 VA examiner failed to provide an adequate rationale for his opinion. See 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.") See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of on competent medical expert over than of another when decision makers give an adequate statement of reasons and bases). In light of the foregoing, the Board finds that the preponderance of the evidence supports the claim, and the benefit sought on appeal is granted. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.303. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.