Citation Nr: 21068810 Decision Date: 11/13/21 Archive Date: 11/13/21 DOCKET NO. 15-46 191 DATE: November 13, 2021 ORDER Entitlement to service connection for eye disorders, other than diabetic retinopathy of the left eye and a pterygium, is denied. Entitlement to an effective date earlier than June 3, 2010, for the award of nonservice-connected pension benefits is denied. FINDINGS OF FACT 1. Eye disorders, other than diabetic retinopathy of the left eye and a pterygium, are not related to the Veteran's military service, to include exposure to an herbicide agent, or caused or aggravated by a service-connected disability. 2. On June 3, 2010, the Veteran submitted his initial claim for nonservice-connected pension; and the Veteran has been permanently and totally disabled, for purposes of nonservice-connected pension, since 2005. CONCLUSIONS OF LAW 1. The criteria for service connection for eye disorders, other than diabetic retinopathy of the left eye and a pterygium, have been not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310(a). 2. The criteria have not been met for an effective date earlier than June 3, 2010, for nonservice-connected pension benefits. 38 U.S.C. §§ 1502, 1521, 5107, 5110; 38 C.F.R. §§ 3.1 (p), 3.3, 3.102, 3.151(b), 3.155, 3.158, 3.340, 3.342, 3.400(b)(1), 4.15. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from May 1963 to October 1966, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), that denied service connection for a heart disorder and bilateral eye disorders, other than a pterygium. By this decision, the RO also granted nonservice-connected pension benefits, effective June 3, 2010. In April 2019, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. In May 2019, the Board remanded the issues of entitlement to service connection for a heart disorder; entitlement to service connection for bilateral eye disorders, other than a pterygium; and entitlement to an effective date earlier than June 3, 2010, for the award of nonservice-connected pension benefits. Following the May 2019 remand, the RO determined that the Veteran was exposed to herbicides based on his nautical service in the offshore eligible waters while stationed aboard the USS Kitty Hawk as defined in the Blue Water Navy Vietnam Veterans Act of 2019. In December 2020, the Board denied service connection for a heart disorder, to include ischemic heart disease, and remanded the issues pertaining to an eye disorder and an earlier effective date for nonservice-connected pension. In May 2021, the Board granted service connection for diabetic retinopathy of the left eye and remanded the issues of entitlement to service connection for eye disorders, other than diabetic retinopathy of the left eye and a pterygium, and entitlement to an effective date earlier than June 3, 2010, for the award of nonservice-connected pension benefits. 1. Entitlement to service connection for eye disorders, other than diabetic retinopathy of the left eye and a pterygium, is denied. The Veteran seeks service connection for eye disorders, other than diabetic retinopathy of the left eye and a pterygium. 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 present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). The evidence shows that the Veteran has been diagnosed with the following eye disorders: a corneal scar; keratoconjunctivitis sicca; atopic conjunctivitis; suspected glaucoma; incipient cataracts; incipient, senile cataracts; cortical, senile cataracts; dry eyes; an irregular astigmatism; a visual field defect; and ocular hypertension. The Veteran also has a current diagnosis of pterygium; however, as such is subject to a separate appeal, it will be addressed in a separate decision. The Veteran contends that his current eye disabilities are related to service, to include exposure to an herbicide agent, or otherwise caused or aggravated by a service-connected disability. Service personnel records confirm that the Veteran served in the Republic of Vietnam. Given the Veteran's service in the Republic of Vietnam, he is presumed to have been exposed to an herbicide agent. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). The Board recognizes that the Veteran's above-listed current eye disabilities are not one of the conditions presumptively associated with herbicide exposure under 38 C.F.R. § 3.309(e). Nevertheless, Courts have held this does not preclude the Veteran from establishing service connection secondary to herbicide exposure with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Initially, the Board finds that since the Veteran does not contend, and the evidence does not suggest, that his current eye disabilities had their onset during service, his claim turns on whether the disabilities are related to service or a service-connected disability. The question of whether the current eye disabilities are related to service or service-connected disabilities is medically complex, especially, where, as here, the Veteran testified that his eye problems began several decades after separation from service. As the evidence does not suggest that the Veteran possesses the specialized medical training which would enable him to be competent to address such complex medical matters, the Board finds that he is not competent to opine as to the etiology of his current eye disabilities, and his opinion in this regard is of no probative value. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In July 2020, a VA optometrist opined that the Veteran's cataracts were likely age-related senile cataracts, and thus, not likely related to service. The optometrist further opined that no clinical evidence that exposure to an herbicide agent would accelerate cataracts diagnosed forty years later. The optometrist also indicated that the claimed condition was less likely than not proximately due to, or the result of, the Veteran's service-connected diabetes mellitus and hypertension. The optometrist stated that if cataracts were due to diabetes, they would have been a bilateral condition and equal in density. The optometrist maintained that the record shows that the left cataract was posterior and of rapid onset. The optometrist reported that heart disease and hypertension had no effect on senile cataracts. The Board finds that the July 2020 VA examination report weights against entitlement to service connection for cataracts. However, as noted in the December 2020 remand, the examination report did not address the Veteran's other eye conditions. In January 2021, February 2021, and May 2021, a VA optometrist opined that the Veteran's corneal scar and irregular astigmatism are secondary to his nonservice-connected pterygium. In his May 2021 opinion, the optometrist explained that agent orange exposure is not known in literature to produce irregular astigmatism. The optometrist also found that that the Veteran's nonservice-connected pterygium causes his current visual field defect. The optometrist also opined that the Veteran's cataracts, blepharitis, and dry eye syndrome (keratoconjunctivitis sicca) are not related to service or a service-connected disability, but rather to his age. In the May 2021 opinion, the optometrist explained that dry eye syndrome is a result of posterior blepharitis, which is a common cause of dry eye syndrome due to age-related changes to the meibomian glands within the eyelids. The optometrist further explained that neither medical literature, nor the medical evidence of record relates these conditions to exposure to an herbicide agent. The optometrist further explained that the Veteran was noted to have age-related combined forms of cataract in the left eye that was surgically extracted in 2010 per later West Palm Beach VA ophthalmology notes at the age of 61. The right eye was also noted to have the same type of age-related cataract per West Palm Beach VA ophthalmology records, with surgical extraction in January 2018 at the age of 72. The course of cataracts in both eyes are typical for his age at the time of extraction. The optometrist further explained that there is no indication the exposure to an herbicide agent caused the Veteran's cataracts, for if such were the case, cataract formation would more likely have been at a much earlier age. As to atopic/allergic conjunctivitis, the optometrist opined that such is likely seasonal in nature or resolved, as it was not present on prior examinations. The optometrist further explained that medical literature reveals no connection between atopic conjunctivitis and exposure to an herbicide agent. Finally, the optometrist opined that the Veteran's ocular hypertension causes his glaucoma suspect. The optometrist explained that neither condition is associated with herbicide exposure unless the glaucoma is of a neovascular subtype secondary to retinal vasculopathies such as proliferative diabetic retinopathy, which the Veteran does not manifest. See VA medical opinion (May 2021). The optometrist also opined that the evidence and medical literature does not indicate that the Veteran's service-connected disabilities cause or aggravate his current ocular hypertension causes his glaucoma suspect. The Board ascribes significant probative value to the VA optometrist's opinions as they are within his field of expertise and based on the evidence of record and current medical literature. Critically, none of the competent medical evidence of record opposes the optometrist's overall opinion that the Veteran's eye disorders, other than diabetic retinopathy of the left eye and a pterygium, are not related to his military service, to include exposure to an herbicide agent, or caused or aggravated by a service-connected disability. As the preponderance of the evidence is against the claim for an eye disorder, other than diabetic retinopathy of the left eye and a pterygium; there is no doubt to be resolved; and service connection is not warranted. 2. Entitlement to an effective date earlier than June 3, 2010, for the award of nonservice-connected pension benefits is denied. The Veteran seeks an effective date earlier than June 3, 2010, for the award of nonservice-connected pension. Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the latter. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). The law provides that pension claims received after October 1, 1984, except as provided by (b)(1)(ii)(B), the effective date will be the date of receipt of the pension claim. 38 C.F.R. § 3.400 (b)(1)(ii)(A). That is, where disability pension entitlement is established based on a claim received by VA on or after October 1, 1984, the pension award may not be effective prior to the date of receipt of the pension claim, unless the veteran specifically claims entitlement to retroactive benefits. 38 C.F.R. § 3.151(b). The claim for pension retroactivity may be filed separately or included in the claim for disability pension, but it must be received by VA within one year from the date on which the veteran became permanently and totally disabled. Id. More specifically, the exception under (b)(1)(ii)(B) of 38 C.F.R. § 3.400 provides that if, within one year from the date on which the Veteran became permanently and totally disabled, the veteran files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of the Veteran's own willful misconduct, was so incapacitating that it prevented him from filing a disability pension claim for at least the first 30 days immediately following the date on which the Veteran became permanently and totally disabled, the disability pension award may be effective from the date of receipt of claim or the date on which the Veteran became permanently and totally disabled, whichever is to the advantage of the Veteran. While rating board judgment must be applied to the facts and circumstances of each case, extensive hospitalization will generally qualify as sufficiently incapacitating to have prevented the filing of a claim. See 38 U.S.C. § 5110 (b)(4)(A)-(B); 38 C.F.R. § 3.400 (b)(1)(ii)(B). Here, it is undisputed that the Veteran submitted his initial claim for nonservice-connected pension on June 3, 2010. In his claim, he reported that his disabilities began in January 1990 and that he last worked on April 1, 2005. VA examination reports show that the Veteran last worked as a welder as early as 2005. See, e.g., VA examination (June 2011). In an August 2011 rating decision, the RO granted entitlement to nonservice-connected pension effective June 3, 2010. The RO reasoned that the Veteran was permanently and totally disabled since he last worked in April 2005 due to his age, education, and disabilities. The Veteran appealed the August 2011 decision. Pursuant to the May 2019 and December 2020 remands, the RO has invited the Veteran to submit additional evidence or argument in support of his claim for entitlement to an effective date earlier than June 3, 2010, for the award of nonservice-connected pension benefits; however, to date, he has not done so. As it is undisputed that the Veteran submitted his initial claim for nonservice-connected pension on June 3, 2010, the Veteran's claim turns on when he became permanently and totally disabled. Here, the evidence indicates that the Veteran became permanently and totally disabled as late as April 1, 2005. Critically, there is no evidence or argument suggesting that the Veteran became permanently and totally disabled within one year of his January 3, 2010, pension claim. Accordingly, June 3, 2010, is the earliest possible effective date for the award of nonservice-connected pension. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joshua R. Castillo, 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.