Citation Nr: 21067695 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 18-47 562 DATE: November 5, 2021 ORDER Entitlement to service connection for prostate cancer is denied. Entitlement to an initial 10 percent rating, but not higher, for left eye chorioretinal scars and cataract is granted. Entitlement to a rating higher than 10 percent for left eye chorioretinal scars and cataract is denied. Entitlement to a separate 10 rating, but not higher, for dry eye syndrome is granted. FINDINGS OF FACT 1. The preponderance of the evidence weighs against associating prostate cancer with any incident of service. 2. Throughout the appeal period, the Veteran's left eye disability manifested with corrected distance visual acuity was, at worst, 20/40 in the left eye, with an average concentric contraction of 51.25 degrees. 3. Throughout the appeal period, the Veteran experienced left eye dry eye syndrome affecting the lacrimal apparatus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for an initial 10 percent rating, but not higher, for chorioretinal scars and cataract have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.79, Diagnostic Code 6080-6011. 3. The criteria for a rating higher than 10 percent for chorioretinal scars and cataract have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.79, Diagnostic Code 6080-6011. 4. Throughout the appeal period, the criteria for a separate 10 percent rating, but not higher, for left eye dry eye syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.75, 4.76, 4.79, Diagnostic Code 6025. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1974 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Board remanded the case for further development. 1. Entitlement to service connection for prostate cancer Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Furthermore, service incurrence will be presumed for certain chronic diseases if manifest to a compensable degree within the year after active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran contends that prostate cancer is related to chemical exposures in service, including benzene, aviation fuel, diesel, arsenic, contaminated water at Ft. Bragg, and other chemicals at Ft. Sill. In addition, the Veteran reported exposure to herbicide agents at Ft. Bragg, North Carolina, and Ft. Sherman in Panama. VA and private treatment records show the Veteran had prostate cancer. He had brachytherapy and receives yearly follow-ups. He reported that he is in remission. A Veteran who served in the Republic of Vietnam from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during that service to herbicide agents, unless there is affirmative evidence to establish that the Veteran was not exposed to any herbicide agent during that service. 38 U.S.C. § 1116(f). The Veteran's service records do not show that he served in Vietnam. The Veteran himself has not claimed to have set foot in the Republic of Vietnam or served in the territorial waters. Rather, the Veteran has asserted that he was exposed to herbicide agents during service exposure from equipment that was used in Vietnam, during training at Ft. Sherman in Panama, and performing maintenance at Ft. Bragg. The AOJ determined there was insufficient evidence to corroborate exposure to herbicide agents. Therefore, the Veteran is not presumed to have been exposed to herbicide agents during that service. As the evidence of record does not rise to the level of equipoise to show that it is at least as likely as not that the Veteran was exposed to an herbicide agent while on active duty, service connection for prostate cancer cannot be established as secondary to herbicide agent exposure. 38 C.F.R. §§ 3.307, 3.309. The Board has considered whether service connection for prostate cancer could be warranted on a direct basis. However, none of the Veteran's medical treatment providers has given any indication that the Veteran's prostate cancer could be related to active duty, and there were no findings of prostate cancer during service or within one year following separation from service. The only evidence which provides any connection between the Veteran's prostate cancer and service comes from the Veteran's statements. An October 2020 VA examiner opined that it was less likely than not that the prostate cancer was caused or aggravated by service. The examiner noted that prostate cancer was one of the most common cancers in men. The incidence of prostate cancer in men is about 1 in 9 will be diagnosed with prostate cancer during their lifetime, with roughly 6 cases in 10 are diagnosed in men who are 65 or older. Prostate cancer is more likely to develop in older men and in African-American men. Because of the Veteran's race, age, and the frequency of prostate cancer, the examiner concluded there was insufficient evidence to state that the prostate cancer was due to service. The October 2020 VA examiner also reviewed research regarding chemical exposures and prostate cancer. The examiner noted a Canadian study entitled "Occupational exposure to benzene, toluene, xylene and styrene and risk of prostate cancer" that found airplane mechanics who had a prolonged exposure to benzene, toluene, xylene and styrene had an increased risk of prostate cancer and concluded that exposure to any BTX was associated with higher risks of overall prostate cancer. However, the prolonged exposures at the substantial level to benzene and styrene also increased risks of low-grade tumors. The examiner noted those findings were independent of prostate cancer screening. Regarding arsenic, the examiner explained that the cancer risk at low doses of arsenic is a subject of considerable debate, and there are currently no whole-animal models. While arsenic seems to have the potential for many mechanisms of action in the development of cancer, including prostate cancer, additional research was needed. Based on the record, the examiner opined it was less likely than not that the prostate cancer was caused or aggravated by service, including potential chemical exposures. The Board finds the October 2020 VA examiner's opinion to be the most probative evidence of record. The October 2020 VA examination report outlines the reasons why the examiner felt that the prostate cancer was not related to service, to include the Veteran's race, age, and the frequency of prostate cancer. The examiner considered the Veteran's statements, the service medical records, the post-service medical records, and explained the factors behind the determinations that the Veteran did not have prostate cancer due to chemical exposures. Significantly, the examiner provided alternative etiologies. The Board finds the October 2020 VA examination report to be the most persuasive evidence of record. Among the factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the examiner's knowledge and skill in analyzing the data, and the medical conclusion the examiner reaches. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). It is to be noted that the Board is not free to substitute its own judgment for a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran's lay statements. Although laypersons are competent to provide opinions on some medical issues, as to the specific issue in this case, whether prostate cancer was caused by active service, that issue falls outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a layperson, it is not shown that the Veteran possesses the medical expertise to provide such opinions, and there are no competent nexus opinions are of record. As previously stated, the medical evidence of record does not support the claims. The Board is sympathetic to the Veteran in that it is clear he sincerely believes that prostate cancer was caused by chemical or herbicide agent exposure during active service. However, the evidence of record does not support that contention. Although the Board is appreciative of the Veteran's faithful and honorable service to our country, considering the record before the Board, the claims must be denied. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). The Board finds that the preponderance of the evidence is against a finding that the Veteran was exposed to herbicide agents in service. The preponderance of the evidence is also against a finding that prostate cancer was present in service; is related to any event, injury, or disease during service; or manifested to a compensable degree within one year following separation from active service. Accordingly, as the preponderance of the evidence is against the claim of entitlement to service connection for prostate cancer, the claim for service connection must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. That does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). 2. Entitlement to increased ratings for left eye chorioretinal scars and cataract 3. Entitlement to a separate 10 rating, but not higher, for dry eye syndrome The Veteran contends that the symptoms of left eye chorioretinal scars warrants a higher rating. The Veteran was assigned a 0 percent rating prior to June 9, 2016, and a 10 percent rating as of June 9, 2016, under Diagnostic Code 6011, for retinal scars, atrophy, or irregularities. The Board notes the Veteran established service connection for residual scarring from a retinal detachment in the left eye. A review of the record shows the left eye postoperative cataract and dry eye syndrome are related to the retinal detachment surgery, which caused the chorioretinal scars. As the postoperative cataract has no current symptoms, the service-connected disability has been updated to indicate the additional diagnosis under Diagnostic Code 6027. In addition, the Veteran is granted a separate 10 percent rating for dry eye syndrome, which is a lacrimal apparatus disorder under Diagnostic Code 6025. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings for eye disabilities. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Under both the former and revised criteria for retinal scars, a 10 percent rating is warranted for localized scars, atrophy, or irregularities of the retina, unilateral or bilateral, that are centrally located and that result in an irregular, duplicated, enlarged, or diminished image. Both versions of the criteria also provide for an alternative basis for the rating if it results in a higher rating. Under the former criteria, the alternative rating is based on visual impairment due to retinal scars, atrophy, or irregularities. Under the revised criteria, the alternative rating is based on the General Rating Formula for Diseases of the Eye. The Board notes that the General Rating Formula for Diseases of the Eye instructs to rate a condition based on visual impairment or its rating criteria for incapacitating episodes. Thus, the primary difference between the former and revised criteria is consideration of incapacitating episodes. With regard to visual impairment, the amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. Diagnostic Code 6025 rates disorders of the lacrimal apparatus (epiphora, dacryocystitis, etc.), including dry eye syndrome. Under Diagnostic Code 6025 a 10 percent rating is warranted for unilateral involvement, and a 20 percent rating is warranted for bilateral involvement. There was no amendment to Diagnostic Code 6025. Both the former and revised criteria distinguish between preoperative and postoperative cataracts. The Veteran's left eye cataract is postoperative. Under Diagnostic Code 6027, for postoperative cataracts both the former and revised rating criteria distinguish between pseudophakia and aphakia. If there is a replacement lens present (pseudophakia), then the former criteria instructed to evaluate based on visual impairment whereas the revised criteria instruct to evaluate under the General Rating Formula for Diseases of the Eye. If there is no replacement lens (aphakia), both the former and revised criteria instruct to evaluate based on aphakia, which is Diagnostic Code 6029. Thus, the primary difference between the former and revised criteria of Diagnostic Code 6027 is consideration of incapacitating episodes. Under the General Rating Formula for Diseases of the Eye, a 10 percent rating is warranted with incapacitating episodes requiring at least one but less than three treatment visits for an eye condition during the past 12 months. A 20 percent rating is warranted for incapacitating episodes requiring at least three but less than five treatment visits for an eye condition during the past 12 months. A 40 percent rating is warranted with incapacitating episodes requiring at least five but less than seven treatment visits for an eye condition during the past 12 months. A 60 percent rating is warranted for incapacitating episodes requiring seven or more treatment visits for an eye condition during the past 12 months. For VA purposes, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. 38 C.F.R. § 4.79. An incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Examples of treatment may include but are not limited to systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. For the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, Diagnostic Codes 6061-6091. 38 C.F.R. § 4.79, Notes (1)-(3). The rating of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function is based on corrected distance vision with central fixation. 38 C.F.R. §§ 4.75(a), 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76(c). Diagnostic Code 6066 provides ratings where vision in one eye (the poorer eye) is 10/200 or better. Where the visual acuity in both eyes is 20/40, a 0 percent rating is warranted. Where the visual acuity in the poorer eye is 20/50, a 10 percent rating is warranted where vision in the other eye is either 20/50 or 20/40. Evaluation of visual field is based on the remaining field of vision in each eye. Under Diagnostic Code6080, a 10 percent rating is warranted for unilateral concentric contraction of the visual field with remaining field of 16 to 60 degrees; or the unilateral loss of the temporal half, nasal half, inferior half, or superior half of visual field. A 20 percent rating is warranted for unilateral concentric contraction of the visual field with remaining visual field of 6 to 15 degrees. Normal visual field extant at eight principle meridians is as follows: temporally is 85 degrees, down temporally is 85 degrees, down is 65 degrees, down nasally is 50 degrees, up nasally is 55 degrees, up is 45 degrees, and up temporally is 55 degrees. 38 C.F.R. § 4.76a, Table III. The extent of contraction of visual field in each eye is determined by recording the extent of the remaining visual fields in each of the eight 45-degree principal meridians. The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given in Table III. 38 C.F.R. § 4.77(a). The degrees lost are then added together to determine total degrees lost. The sum is divided by eight and represents the average contraction of the visual field. To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, separately evaluate the visual acuity and visual field defects (expressed as a level of visual acuity) are evaluated separately, and then combined under the provisions of § 4.25. 38 C.F.R. § 4.77(c). At an April 2016 VA examination, the examiner diagnosed a retinal detachment with residual scarring. Corrected distance measured 20/40 or better. Slit lamp testing showed an intraocular lens in the left eye. There was scarring due to residuals from the retinal detachment surgery. There was a visual field defect and a mild inferior temporal visual field loss. The accompanying Goldmann chart was incomplete as it did not record at least 16 meridians. There was no decrease in visual acuity or other visual impairment due to the retinal detachment. There were no incapacitating episodes. At a July 2016 VA examination, the examiner diagnosed retinal detachment and dry eye syndrome. Corrected distance measured 20/40 or better. The Veteran had a visual field defect, and there was some peripheral visual field loss. There was a contraction of the visual field with an average concentric contraction of 52.5 degrees. The examiner noted the dry eye syndrome was a disorder of the lacrimal apparatus that only affected the left eye. The examiner found the retinal detachment with post-operative scars, left eye cataract, Lasik correction after the cataract surgery, and dry eye syndrome after Lasik were related to the retinal detachment. A November 2018 private evaluation indicated the Veteran had a visual field defect. However, neither the measurements from the Goldmann chart, nor the Goldmann chart were included in the submission. At a September 2020 VA examination, the Veteran reported no current symptoms. Corrected distance measured 20/20 or better. The examiner noted the retinal detachment was resolved and there were no current symptoms. The left eye cataract was secondary to the retinal detachment treatment. There was no decrease in visual acuity or other visual impairment from the chorioretinal scars or postoperative cataract. There was no visual field defect, and no incapacitating episodes. After review of the record, the Boards finds a 10 percent rating is warranted throughout the appeal period for the left eye chorioretinal scars and the postoperative cataract. The Board notes that the Veteran's visual acuity was 20/40 or better. While the Veteran did not have a decrease in visual acuity, there was a decrease in the Veteran's visual field. The July 2016 VA examination showed an average concentric contraction of 52.5 degrees and the May 2018 VA examination showed an average concentric contraction of 51.25 degrees. Under Diagnostic Code 6080, a remaining field of 46 to 60 degrees warrants a 10 percent rating. In the alternative, a unilateral remaining field of 46 to 60 degrees can be rated with the visual acuity of 20/70. Under Diagnostic Code 6066 visual acuity of 20/50 and 20/40 (for the nonservice-connected right eye) warrants a 10 percent rating. Both evaluations equate to a 10 percent rating. As there was no indication of additional visual impairment, scarring and disfigurement, or incapacitating episodes, a higher rating is not warranted. Thus, the Boards finds a 10 percent rating, but not higher, is warranted throughout the appeal period for the left eye disability. The Board acknowledges that there are no visual field test results during the period prior to July 2016. However, the Veteran's statements concerning loss of visual field loss have been consistent throughout the period on appeal, and medical evidence from the period, including the private treatment records and the April 2016 VA examination report, document a decrease in the inferior temporal visual field. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence warrants assigning a 10 percent rating for the entire period on appeal. The Board also finds that a separate 10 percent rating is warranted under Diagnostic Code 6025 for the unilateral dry eye syndrome. Private treatment notes showed dry eyes. The July 2016 VA examiner provided a positive opinion relating the dry eye syndrome to the Lasik repair that was required after the retinal detachment. In addition, the May 2018 VA examiner stated the dry eye involved the lacrimal gland. As one eye is affected, a 10 percent rating for unilateral involvement is warranted. The Board has considered whether a higher rating or any additional disability ratings are warranted under an alternative diagnostic code, but finds that there is no indication that the Veteran had any compensable symptoms or diagnoses to warrant any higher or additional disability ratings. Accordingly, the Board finds that throughout the appeal period a 10 percent rating, but not higher, is warranted for the Veteran's left eye chorioretinal scars and a separate 10 percent rating, but not higher is warranted for the left eye dry eye syndrome. A higher rating, or any additional separate rating, has not been warranted during the appeal period. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kass, 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.