Citation Nr: 21071969 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-14 224 DATE: December 1, 2021 ORDER Entitlement to service connection for heart disease secondary to herbicide agent exposure is denied. Entitlement to service connection for prostate cancer secondary to herbicide agent exposure is denied. Entitlement to service connection for diabetes mellitus, type II secondary to herbicide agent exposure is denied. Entitlement to service connection for a bilateral eye condition is denied. REMANDED Entitlement to service connection for a bilateral foot disability is remanded. FINDINGS OF FACT 1. The evidence of record does not establish that the Veteran was exposed to herbicide agents in service. 2. The Veteran's current heart disease did not have its onset in service or within a year of separation therefrom, and is not etiologically related to any aspect of service. 3. The Veteran's prostate cancer did not have its onset in service or within a year of separation therefrom, and is not etiologically related to any aspect of service. 4. The Veteran's diabetes mellitus did not have its onset in service or within a year of separation therefrom, and is not etiologically related to any aspect of service 5. The Veteran's currently diagnosed cataracts did not have their onset in service or within a year of separation therefrom, and are etiologically unrelated to in-service blurred vision, or any other aspect of service. CONCLUSIONS OF LAW 1. The criteria for service connection for heart disease, to include as secondary to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for prostate cancer, to include as secondary to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for diabetes mellitus, type II, to include as secondary to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for a bilateral eye condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1962 to October 1965. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before at a Board hearing in November 2018. The transcript is of record. The Veterans Law Judge who conducted the hearing is no longer at the Board. The Veteran was apprised of his right to a new hearing in an October 2021 letter, but did not respond within 30 days; thus, his right to a new hearing is deemed ot be waived. The matter was previously before the Board in April 2019, at which time it was remanded for development. It now returns to the Board for appellate review. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection 1. Entitlement to service connection for heart disease, prostate cancer, and diabetes mellitus, type II, all theorized as secondary to herbicide agent exposure Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially 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). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, VA regulations provide that for a Veteran who has been exposed to an herbicide agent during military service, service connection for type II diabetes, ischemic heart disease, and prostate cancer will be presumed. See 38 C.F.R. § 3.309 (e). Herbicide agents are defined by VA regulation as a chemical used in an herbicide used by the United States, specifically noted as: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and, picloram. See 38 C.F.R. § 3.307 (a)(6)(i). VA has determined that U.S. Air Force Veterans who served on certain Royal Thai Air Force Bases near the air base perimeter anytime between February 28, 1961 and May 7, 1975, may have been exposed to herbicide agents. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10(q). As an initial matter, the Board observes that the Veteran has not theorized any of the above-enumerated conditions as directly related to service, and the record is altogether bare of evidence that any of the conditions had their onset in service or within a year of separation from service, or that the conditions bear a direct etiological relationship to service. Rather, the Veteran has averred that the conditions are related to in-service exposure to herbicide agents while the Veteran served in Thailand, where he loaded and unloaded aircraft transporting equipment to and from the Republic of Vietnam. Pursuant to the Veteran's contention, the matter was referred to the JSRRC to explore whether in-service herbicide agent exposure could be confirmed. In a September 22, 2020 formal finding, the JSRRC coordinator explained that exposure could not be confirmed. Specifically, the coordinator enumerated the efforts undertaken to confirm exposure, including a thorough review of the claims file, PIES 050 and RV1 requests for all records, which did not show herbicide agent exposure, and an August 2020 letter to the Veteran requesting specific details concerning the claimed exposure, to which the Veteran failed to respond. Absent any concrete evidence establishing exposure to herbicide agents, the Board cannot but conclude the absence of exposure in the Veteran's case. To be clear, the Board is sympathetic to the Veteran's sincerely held belief that his current disabilities are related to in-service herbicide agent exposure. However, the record does not establish objectively the presence of such exposure, and the Veteran has been unable to furnish specific information to support his contentions, despite explicit opportunity to do so. Thus, for the reasons discussed above, the evidence in this case does not support entitlement to service connection for diabetes mellitus, prostate cancer, or heart disease, to include on a presumptive basis, and the claims must be denied. 2. Entitlement to service connection for a bilateral eye condition The record reflects a current diagnosis of bilateral cataracts; thus, the current disability element necessary for establishing service connection is present. The Veteran claims that his cataracts are etiologically related to service on a direct basis. Service records show complaints of blurred vision, but neither service records nor medical records in the years immediately following separation show ongoing eye-related problems. The Veteran's cataracts diagnosis came several decades after separation; he underwent surgery for the condition in 2012. A VA examiner with whom the Veteran met in October 2012 opined that the condition was age-related, with no pre-existing ocular disease, and no basis for which to conclude there was any relationship between cataracts and any aspect of service. A second VA examiner with whom the Veteran met in July 2021 agreed, indicating the cataracts were unrelated to service, to include in-service complaints of blurred vision, explaining that the in-service complaints related to binocular vision disorder and uncorrected refractive error, that the Veteran was prescribed reading glasses, and that medical records from the time show the Veteran's eyes were clear, with evidence of cataracts. Further, the examiner explained there is no etiological relationship between the in-service eye problems and cataracts. The Board accepts the VA examiners' assessments as the most probative evidence of record with respect to the etiology of the Veteran's cataracts, because the opinions, particularly the most recent one, are thorough, reasoned, and in accord with the objective evidence of record. While the Board has considered with sympathy the Veteran's lay statements, it cannot afford probative weight to his assertions with respect to the etiology of his cataracts in this case. While he is competent to report his experiences and symptoms since service, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of his condition. Jandreau v. Nicholson, 492 F. 3d 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Veteran's reports of his symptoms are relevant, competent, and credible; however, the question of the etiology of cataracts is limited to the purview of someone with medical knowledge and training, such as the VA medical examiner in this case. In sum, the evidence does not show that it is at least as likely as not that the Veteran's diagnosed cataracts are related to active service. The probative value of the Veteran's assertions is outweighed by the probative value of the thorough and reasoned opinion of the VA medical expert. As the preponderance of the evidence is against the claim, service connection for cataracts must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a bilateral foot disorder is remanded. The Veteran's service connection claim for a bilateral foot disorder requires additional development before it can be finally adjudicated. The Veteran has current diagnoses of bilateral flatfoot, bilateral plantar fasciitis, and bilateral degenerative arthritis, and has averred that he experienced pain on both feet in boot camp, that he sought treatment for the pain, was told he was flatfooted, and received special inserts for his boots during active service. The VA examiner with whom the Veteran met in July 2021 noted that the Veteran's entrance examination was silent for foot problems, including pes planus, and that September 1974 records reflected severe pes planus, adding that the Veteran's current foot problems are all etiologically related. However, the Veteran separated from service in 1965 and was enlisting in the reserves in 1974, thus, it remains unclear from the opinion whether the examiner has opined that the Veteran's foot disabilities had their onset during a period of active service, or whether pes planus in fact predated entry into active duty service, and if so, whether it was aggravated during active duty service. On remand, a new VA examination must be conducted, and a clear medical opinion obtained as to the etiology of the Veteran's foot disabilities, to include whether any such condition predated service. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, update the file with any VA or private treatment records relevant to the Veteran's claims. If any requested records are unavailable, the Veteran should be notified to that effect. 2. Identify the entry and separation dates of all the Veteran's periods of active duty service and ACDUTRA, and provide these dates to the examiner for the examination scheduled in paragraph 3. 3. Then, schedule the Veteran for a VA examination to explore the etiology of his foot disabilities. The claims file should be made available to the VA examiner, and the file should be reviewed. The examiner should be provided with the Veteran's identified periods of active service and ACDUTRA. The examiner is directed to do the following: a. Identify all foot disabilities present. b. Next, the examiner should determine if for any of the identified foot disabilities there is clear and unmistakable evidence that they pre-existed service. (i) If the examiner finds that a foot disability pre-existed service, the examiner should provide an opinion as to whether there is clear and unmistakable evidence that the disability was NOT aggravated beyond its normal progression during service. (ii) If the examiner finds either that an identified foot disability did not pre-exist service or that it was aggravated by service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability), that the foot disability or the aggravation thereof is etiologically related to active duty service. All opinions expressed should be accompanied by a thorough rationale. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.