Citation Nr: 21007968 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 13-10 824 DATE: February 11, 2021 ORDER Entitlement to service connection for an eye disability other than cataracts and/or pseudophakia, to include allergic conjunctivitis, is granted. REMANDED Entitlement to service connection for a colon disability, to include colon polyps and diverticulosis, is remanded. Entitlement to service connection for a right eye cataract and pseudophakia, to include as secondary to exposure to herbicide agents, jet fuel, and/or other chemicals, and to include as secondary to service-connected disabilities, is remanded. FINDING OF FACT The Veteran’s allergic conjunctivitis had its onset in service. CONCLUSION OF LAW The criteria for service connection for an eye disability other than cataracts and pseudophakia, to include allergic conjunctivitis, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1957 to May 1977, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2010 and May 2014 rating decisions by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In May 2015, the Board remanded this matter to afford the Veteran a hearing, and in July 2015 he testified at a videoconference hearing before the undersigned. In March 2016, the Board remanded these matters for additional development. In December 2019, the Board granted entitlement to service connection for thyroid cancer status post total thyroidectomy, residuals of mediastinal lymph node biopsy with mediastinoscopy to include vocal cord injury, and medium sternal mass. Thus, these issues are no longer before the Board. The Board also remanded for additional development the issues of entitlement to service connection for a colon disability and entitlement to service connection for right eye cataract. 1. Entitlement to service connection for an eye disability other than cataracts and/or pseudophakia, to include allergic conjunctivitis, is granted. The issue of allergic conjunctivitis was reasonably raised by the record as part of the claim for a right eye disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish entitlement to service connection, a veteran must show (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The November 2020 VA examiner diagnosed allergic conjunctivitis and pseudophakia. See November 2020 Disability Benefits Questionnaire (DBQ). The examiner noted a date of diagnosis of 1976 for the Veteran’s allergic conjunctivitis, during his active service, and opined that it is at least as likely not that allergic conjunctivitis is related to the Veteran’s service and explained that the Veteran has a history of seasonal allergies, which can cause allergic conjunctivitis. See November 2020 Medical Opinion. Although the examiner noted that allergic conjunctivitis was quiescent on the day of the examination, the examiner diagnosed this condition based on the medical evidence of record. See id. (noting examiner reviewed medical records). Moreover, the private medical evidence indicates that the Veteran has had active allergic conjunctivitis during the appeal period, and the Veteran’s physician likewise attributed this condition to his service-connected allergies. See October 2, 2014 Dr. A.E.G. Letter. Here, the evidence shows a current diagnosis of allergic conjunctivitis and there is a medical nexus to his allergies in service. Accordingly, service connection for allergic conjunctivitis is warranted. The Board will award direct service connection as that is supported by the evidence and most favorable to the Veteran. The Board acknowledges that the Veteran’s claim was for a right eye cataract and the AOJ did not issue a Supplemental Statement of the Case (SSOC) addressing allergic conjunctivitis. However, the Veteran is not prejudiced by the Board’s award of service connection in the first instance. REASONS FOR REMAND 2. Entitlement to service connection for a colon disability, to include colon polyps and diverticulosis, is remanded. The Board regrets the delay, but additional development is necessary. The sole reason given by the July 2020 examiner as to why herbicide agents did not cause a colon disability was the lack of availability of presumptive service connection for the condition. See July 2020 Medical Opinion. This rationale is inadequate, as the examiner must address service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). On remand, the Veteran’s complete VA treatment records, and any outstanding relevant treatment records, should also be secured. 3. Entitlement to service connection for a right eye cataract and pseudophakia, to include as secondary to exposure to herbicide agents, and environmental exposures including jet fuel, and/or other chemicals, and to include as secondary to service-connected disabilities, is remanded. Remand is necessary for an addendum opinion. The examiner’ opinion addressing direct service connection does not clearly state that the Veteran’s cataracts were less likely than not incurred in or related to service. The examiner checked the box associated with 50 percent or greater probability, although the narrative indicates that this statement relates to allergic conjunctivitis, and the narrative text indicates that cataracts are “less than likely” due to diabetes, which is consistent with equipoise. On remand, an opinion should be obtained that clearly addresses the correct legal standard of proof. The matters are REMANDED for the following action: 1. Secure complete VA treatment records. 2. With any necessary assistance from the Veteran, secure any outstanding relevant private treatment records. 3. Refer the claims file to an examiner for preparation of an addendum opinion regarding the nature and etiology of the Veteran’s colon disability, to include diverticulosis and polyps. No examination of the Veteran is necessary unless the examiner deems otherwise. Following a review of the claims file, the examiner should address the following: Please opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s colon disability, to include diverticulosis and/or polyps, had its onset during or is otherwise etiologically related to the Veteran’s active duty service, to include as a result of conceded exposure to herbicide agents and/or other environmental exposures to include jet fuel and/or other chemicals. In addressing this question, the examiner is advised that a current intestinal disability for VA compensation purposes includes any such disability extant since the Veteran’s September 2009 claim, even if now resolved, as well as any current residuals of a resolved intestinal disorder. The examiner is advised that even if the law does not presumptively associate a colon disability with exposure to herbicide agents, service connection may still be granted on a direct basis. Thus, in addressing whether it is at least as likely as not that the Veteran’s colon disability is due to exposure to herbicide agents, the examiner must provide a rationale based on the facts of this matter. The examiner may include citation to relevant studies, articles, or other evidence that the examiner deems relevant. An opinion premised solely upon the lack of a presumptive relationship will be returned as inadequate. A complete rationale must be provided for all opinions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. 4. Refer the claims file to an examiner for preparation of an addendum opinion regarding the nature and etiology of the Veteran’s right eye disability other than allergic conjunctivitis, to include cataracts s/p; removal and pseudophakia. No examination of the Veteran is necessary unless the examiner deems otherwise. Following a review of the claims file, the examiner should address the following: (a) Please opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right eye cataracts s/p surgery and pseudophakia had its onset during or is otherwise etiologically related to the Veteran’s active duty service, to include as a result of conceded exposure to herbicide agents and/or other environmental exposures to include jet fuel and/or other chemicals. (b) Please opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right eye cataracts s/p surgery and pseudophakia are proximately due to a service-connected disability, to include hypertension, diabetes mellitus type II, and/or any other service-connected disability including medications used to treat the same (particularly asthma). (c) Please opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right eye cataracts s/p surgery and pseudophakia have been aggravated (worsened beyond natural progression) by a service-connected disability, to include hypertension, diabetes mellitus type II, and/or any other service-connected disability including medications used to treat the same (particularly asthma). In addressing this question, the examiner’s attention is invited to the November 2020 examination report. The examiner is advised that exposure to herbicide agents, sunlight, jet fuel, and chemicals is conceded as consistent with the circumstances of the Veteran’s service. The examiner is advised that even if the law does not presumptively associate a colon disability with exposure to herbicide agents, service connection may still be granted on a direct basis. Thus, in addressing whether it is at least as likely as not that the Veteran’s colon disability is due to exposure to herbicide agents, the examiner must provide a rationale based on the facts of this matter. The examiner may include citation to relevant studies, articles, or other evidence that the examiner deems relevant. An opinion premised solely upon the lack of a presumptive relationship will be returned as inadequate. A complete rationale must be provided for all opinions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, Associate 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.