Citation Nr: 21077641 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 14-29 241A DATE: December 30, 2021 ORDER Entitlement to service connection for bilateral eye disability is denied. FINDING OF FACT 1. An eye disability was not manifest in service and is otherwise unrelated to service, to include as due to exposure to herbicide agents. 2. An eye disability was not caused or aggravated by a service-connected disease or injury. 3. Refractive errors have been identified. CONCLUSION OF LAW 1. An eye disability was not incurred in or aggravated by service, to include as due to exposure to herbicide agents. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 4.9. 2. An eye disability is not proximately due to or aggravated by a service-connected disease or injury, including diabetes mellitus type II. 38 C.F.R. § 3.310. 3. Refractive errors are not diseases or injuries within the meaning of the law providing compensation. 38 C.F.R. § 3.303, 4.9. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to July 1969. He had service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office. The Board remanded this claim in August 2019 for additional evidentiary development, specifically to provide the Veteran with a VA eye examination and to obtain medical nexus opinions for whether any eye disability was secondary to the Veteran's service-connected type II diabetes mellitus. No examination was provided, and an opinion obtained in October 2019 was inadequate. A Supplemental Statement of the Case (SSOC) was issued in December 2019 and the appeal was recertified to the Board. The Board remanded the claim again in April 2020 for additional evidentiary development. The remand instructions requested that the Regional Office make attempts to obtain outstanding VA and private treatment records, that the Veteran be provided a VA examination to ascertain the current nature and etiology of the Veteran's eye disabilities, and that medical nexus opinions be obtained addressing whether a current eye disability was at least as likely as not due to service to include herbicide exposure, was caused by his service connected diabetes mellitus, or was aggravated by diabetes mellitus. The claims file shows that the Regional Office sent the Veteran and his attorney letters in April 2020, February, April 2021, and May 2021 requesting both that the Veteran provide private treatment records in support of his claim, and that he completes and return enclosed VA Forms 21-4142 and 21-4142a to authorize VA to request treatment records from any private medical sources. No responses were received. A February 2021 letter shows an eye examination was initially scheduled for December 23, 2020 with a private vendor, but that the vendor had cancelled the examination. A July 2021 information report shows the Veteran was contacted by telephone and that he was ready to report to an examination. An examination was scheduled for July 29, 2021. A report titled "Exam Scheduling Request Contention Cancellation" shows the Veteran cancelled the examination. A SSOC was issued in October 2021, and the appeal was returned to the Board for further appellate proceedings. 1. Failure to appear for VA examination. As a preliminary matter, the Board will address whether the Veteran has demonstrated good cause for his failure to attend or reschedule the July 2021 VA examination. The Board finds that he has not. When entitlement to benefits in connection with an original compensation claim cannot be established without a current VA examination and a claimant, without good cause, fails to report for such examination, the claim shall be rated based on the evidence of record. See 38 C.F.R. §§ 3.655 (a), (b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. 38 C.F.R. § 3.655 (a). Here, an examination was originally scheduled for December 23, 2020 with a private vendor, who appears to have cancelled the examination. The Veteran and his attorney were notified, and in July 2021 the Veteran reported that he was willing to attend a VA examination. A new examination was scheduled for July 29, 2021. An "Exam Scheduling Request Contention Cancellation" form indicates the Veteran did not appear for the scheduled examination. No reason was noted. Thereafter, the Veteran and his attorney were sent letters dated August 16, 2021, September 3, 2021, and September 21, 2021 requesting that either the Veteran or his attorney contact VA to reschedule the examination. There is no evidence that the Veteran or his attorney attempted to contact VA to reschedule an examination. The Board concludes the Veteran has not shown good cause for failing to report to the most recently scheduled VA examination. As illustrated by the examples of good cause listed in the regulation, good cause includes serious life events, such as illness, hospitalization, or the death of an immediate family member. An alike issue for cancelling or otherwise missing the July 2021 examination has not been shown here. VA has attempted to develop the Veteran's case and record. Both the Veteran and his attorney were notified that the Veteran had not attended the July 2021 examination in three separate letters, each requesting that the Veteran contact VA to reschedule the examination. There is no indication that the various mailings sent to both the Veteran and his attorney were sent to incorrect addresses or were otherwise unable to be delivered. No response was provided. The Board has remanded the Veteran's claim twice for further development, to include obtaining a VA examination and medical nexus opinions. Review of the record shows the Veteran was notified of the consequences of failure to appear of an examination without good cause. Following the failure to report in July 2021, the Veteran and his attorney were mailed multiple letters and given months to notify VA of if or when he would be available for examination. The duty to assist is not a one-way street or a blind alley. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). A Veteran must be prepared to cooperate with VA's efforts to provide an adequate medical examination. The Veteran's claim cannot remain pending indefinitely awaiting word and action from him. Additional delay for a third remand to attempt to schedule examinations is not warranted. Based on the foregoing, the Veteran's claim will now be adjudicated based on the current record. See 38 C.F.R. § 3.655 (a), (b). 2. Service connection for bilateral eye disability. The Veteran seeks service connection for bilateral eye disabilities. He has asserted that he has disability that is due to his presumed exposure to Agent Orange and herbicide agents during his service in Vietnam. Alternatively, he asserts an eye disability is secondary to his service-connected type II diabetes mellitus. Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38U.S.C. § 1110. 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 between the present disability and the disease or injury incurred or aggravated during service" the so-called nexus requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection is also warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). A veteran 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 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 U.S.C. § 1116 (a)(3); 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran had service in the Republic of Vietnam during the applicable period and is presumed to have been exposed to herbicide agents. Diseases associated with exposure to certain herbicide agents will be considered to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a). Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307 (a)(6)(ii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of § 3.307 (a)(6) are met even though there is no record of such disease during service. 38 C.F.R. § 3.309 (e). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). In addition, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310 (b). After reviewing the evidence, the Board concludes that service connection for an eye disability is not warranted. The June 1965 entrance examination shows a clinically normal eye and ophthalmoscopic evaluations. Distant vision was 20/20 and color vision testing was passed. The Veteran denied ever wearing glasses on the June 1965 report of medical history. In March 1968 the Veteran complained of pain and discomfort in his right eye. There are no further service treatment records showing any complaints, treatment, symptoms, or diagnoses relating to the Veteran's eyes. There is no separation examination report of record. The Board notes the Veteran was retired by reason of physical disability due to traumatic amputation of the right ring finger, little finger, and distal phalanx of the middle finger. The Veteran was admitted for VA psychiatric treatment in September 2005. The history and physical notes the Veteran's eyes were "EOMI" and "PERRLA," common medical abbreviations that mean "extraocular movements intact" and "pupils, equal, round, reactive to light, and accomodation. No specific eye problems were noted, suggesting the Veteran's eyes were normal. The Veteran reported blurred vision in both eyes but otherwise no changes. It was noted that the Veteran wears glasses. A September 2014 treatment record shows complaints of blurred vision in the left eye for a few weeks. A February 2015 eye consultation shows the Veteran complained of decreased visual acuity. Eye examination showed no neovascularization and no active retinal diabetic changes. He was assessed with pterygium and dry eyes. A July 2015 treatment note shows complaints of decreased visual acuity in the left eye. No active diabetic retinal changes were found, but the Veteran was diagnosed with bilateral senile cataracts, refractive error, and left eye myopic shift. New glasses were ordered. He is prescribed eye drops. The Veteran had a VA cataract evaluation in September 2017. He reported glares and decreased vision, worse in his left eye than the right. He was assessed with a visually significant left eye cataract. He had left eye cataract extraction surgery in October 2017 with placement of an intraocular lens implant. A December 2017 VA ophthalmology clinic note shows the Veteran reported glare at night in his left eye, blurry right eye vision, and binocular diplopia. A history of refractive error, bilateral cataracts, and diabetes mellitus without retinopathy were noted. Following examination, the Veteran was assessed with bilateral refractive error, left eye pseudophakia, right eye nuclear sclerotic cataract, and diabetes mellitus without retinopathy. Initially, the Board acknowledges that the Veteran had service in the Republic of Vietnam and that exposure to herbicide agents is presumed. 38 C.F.R. § 3.307 (a)(6). Furthermore, he is already service connected for type II diabetes mellitus as due to exposure to herbicides, as well as diabetic peripheral neuropathies secondary to diabetes mellitus. However, the Veteran does not have any eye disease among those listed in 38 U.S.C. § 1116 and 38 C.F.R. § 3.309 for which service connection may be presumed due to herbicide exposure. The Veteran may nevertheless show entitlement to service connection for an eye disability on a direct basis, including as due to herbicide exposure. See Combee v. Brown, 5 Vet. App. 248 (1993). The record does not reflect that any current eye disability resulted from a disease or injury incurred during service, or that any eye disability is related to herbicide exposure. While service treatment records show a complaint of eye pain, no disease or injury was noted at the time and there is no indication that any of the Veteran's current eye disabilities are related. We note that the Veteran has not generally contended that any eye disease or injury was present during service. Rather, he primarily contends that his current pathologies are either due to herbicide exposure or are secondary to diabetes mellitus. All available treatment records suggest a remote onset of the Veteran's eye problems with no relationship to service, to include herbicide exposures. The Veteran's cataracts and resulting loss of visual acuity, dry eye, and related symptoms were first identified decades after the Veteran separated from service in 1969. His cataracts have been explicitly attributed to aging. The multi-year gap between discharge from active duty and evidence of any relevant eye pathology is viewed as a factor weighing against this claim. The only evidence submitted in support of the claim on a direct basis are the Veteran's statements that an eye disability is related to herbicide exposure. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, the Veteran is competent to report his experiences and observations, including his eye symptoms and their onset. However, the Veteran is not competent to address the etiological issues of whether any current eye disability is due to exposure to herbicide agents. Making such a connection would require specialized education, training, or experience that the Veteran has not been shown to possess. See 38 C.F.R. § 3.159 (a)(2); Jandreau, 492 F.3d at 1377. There is no indication that the Veteran's doctors have told him any eye disability is related to herbicides. To the extent the Veteran contends a current eye disability was present during service, there is no credible evidence to support the claim. Although lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. See Buchanan v. Nicholson,451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against lay statements. Id. While the Veteran did report right eye pain during service, there is no indication that this single incidence of pain is in any way related to the Veteran's current eye problems. In addition, the post-service medical record is not entirely silent. VA treatment records suggest a post-service onset of all the Veteran's relevant eye pathologies with no indication that any eye disability is related to service. Regarding secondary service connection, the Veteran has not provided competent evidence beyond his statement that an eye disability is secondary to his service-connected diabetes mellitus. The Veteran is not competent to address this etiological issue. Making such a connection would require specialized education, training, or experience that the Veteran again has not been shown to possess. See 38 C.F.R. § 3.159 (a)(2); Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's lay statements are not competent evidence that an eye disability is proximately due to, the result of, or aggravated by service-connected disease or injury, to include diabetes mellitus. Review of the post-service medical records does not reflect the Veteran has any diabetic complications relating to his eyes. There is no indication that the Veteran's current eye pathologies are in any way related to his diabetes mellitus. Multiple VA ophthalmology consultations show no diabetic retinopathy, and do not suggest that any current disability is due to or worsened by diabetes mellitus. The VA treatment records are absent any relationship between a current eye disability and service-connected disease or injury. The Veteran did not respond to requests to provide potentially relevant private treatment records, and he cancelled a VA examination with no cause shown. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claims. He has not done so. Furthermore, his decision to not attend a VA examination hampers our ability to make a fully informed decision. As explained above, the Veteran failed to attend and reschedule the July 2021 VA examination, and the claim is being adjudicated based on the current record without examination pursuant to 38 C.F.R. § 3.655. Finally, the Veteran has refractive errors of both eyes. Refractive errors of the eyes are not "diseases or injuries" for disability compensation purposes under VA law. See 38 C.F.R. §§ 3.303 (c), 4.9; Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). Absent superimposed disease or injury, service connection may not be allowed for refractive errors of the eyes, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Parker v. Derwinski, 1 Vet. App. 522 (1991); McNeely v. Principi, 3 Vet. App. 357, 364 (1992). Thus, in the absence of some event or trauma, a refractive error is not a disease or injury for which compensation benefits may not be authorized. 38 C.F.R. §§ 3.303 (c), 4.9 (refractive error of the eye are not diseases or injuries within the meaning of applicable legislation); see also VAOPGCPREC 82-90 (July 18, 1990). Service treatment records do not document any in-service disease or injury of the eyes. Although the Veteran is presumed to have been exposed to herbicide agents, there is no indication that the Veteran experienced any superimposed injury or disease of the eyes during service. Absent superimposed disease or injury, service connection may not be allowed for refractive error. 38 C.F.R. § 3.303 (c). The Board finds that there is no superimposed disease or injury for which compensation benefits may be authorized regarding the Veteran's eyes. Finally, although the Veteran is a combat Veteran, the evidence of record does not indicate any current eye disability is due to a disease or injury that occurred during combat. The Veteran does not assert otherwise. As such, 38 U.S.C. § 1154 (b) does not apply. In sum, the Veteran has multiple eye problems, including cataracts that required a lens transplant, decreased visual acuity, refractive errors, and eye dryness. There is no competent evidence that any eye disability is directly due to service, to include exposure to herbicides, or secondary to service-connected disease or injury. Refractive error of the eyes is not considered diseases or injuries for awards of VA compensation benefits. The preponderance of the evidence is against granting service connection for an eye disability. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.