Citation Nr: 21021560 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-15 226 DATE: April 13, 2021 ORDER Service connection for glaucoma, to include as due to herbicide exposure and/or secondary to service-connected diabetes mellitus, type II, or medications for erectile dysfunction, is denied. Service connection for kidney disease, to include as due to herbicide exposure and/or secondary to service-connected diabetes mellitus, type II, is denied. FINDINGS OF FACT 1. In a December 2011 VA rating decision, the Agency of Original Jurisdiction (AOJ) noted the Veteran’s service in Vietnam during his period of active service and conceded his presumed in-service herbicide exposure. 2. The Veteran’s diagnoses of glaucoma and chronic kidney disease during the appeal period are not listed among the diseases presumptively associated with exposure to certain herbicide agents under applicable regulations. 3. The Veteran’s glaucoma was not demonstrated in or directly related to an occurrence during active service to include herbicide exposure nor caused or aggravated by service-connected diabetes mellitus, type II, or medications for erectile dysfunction. 4. The Veteran’s chronic kidney disease was not demonstrated in or directly related to an occurrence during active service to include herbicide exposure nor caused or aggravated by service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for glaucoma, to include as due to herbicide exposure and/or secondary to service-connected diabetes mellitus, type II, or medications for erectile dysfunction, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303, 3.310 (2019). 2. The criteria for entitlement to service connection for kidney disease, to include as due to herbicide exposure and/or secondary to service-connected diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1967 to June 1968. His awards and decorations include the Combat Infantryman Badge. The Veteran died in May 2019. The appellant is his surviving spouse. In February 2019, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. In June 2019, the Board dismissed the appeal due to the Veteran’s death. In August 2019, the appellant was deemed to be a valid substitute claimant for the purposes of processing the Veteran’s appeal to completion. In December 2019, the Board determined that new and material evidence had been received to reopen service connection for an acquired psychiatric disability, skin disorder, and hypertension; granted service connection for hypertension; denied service connection for a respiratory disorder and residuals of enlarged parotid gland, to include sarcoma; dismissed service connection for chronic lymphocytic leukemia and Parkinson’s disease; and remanded service connection for an acquired psychiatric disability, skin disorder, erectile dysfunction, glaucoma, kidney disease, and a sore in the right nostril for additional evidentiary development. Service connection for an acquired psychiatric disability and erectile dysfunction were granted in a May 2020 VA rating decision, which represents a full grant of the benefits sought so they are no longer on appeal before the Board. In August 2020, the Board denied the issues of service connection for a sore in the right nostril and for skin disorder, both to include as due to herbicide exposure, and remanded the issues of service connection for glaucoma and kidney disease for additional evidentiary development. The remaining issues on appeal have been returned to the Board for appellate review. With regards to the issues on appeal discussed below, there was substantial compliance with the remand directives in December 2019 and August 2020. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the appellant was provided VA medical opinions for these issues in May 2020 and October 2020. The opinions for glaucoma and kidney disease were, collectively, adequate because the physicians reviewed the claims file and provided well-reasoned explanations as to why these disorders were not related to service or secondary to a service-connected disability. These issues were readjudicated in May 2020 and October 2020 supplemental statements of the case (SSOCs). Additionally, the requirements of 38 U.S.C. §§ 5103 and 5103A have been met for the issues on appeal discussed below on the merits. VA’s duty to notify was satisfied by September 2013 and September 2014 letters. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. VA fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate a claim, and affording the Veteran VA examinations, VA medical opinions, and a hearing before the Board. 38 U.S.C. §§ 5103, 5103A. There is no evidence that additional records have yet to be requested. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. Shinseki v. Sanders, 556 U. S. 396, 129 S. Ct. 1696 (2009). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). If a veteran was exposed to an herbicide agent during active military, naval, or air service, a specified list of diseases shall be service connected if manifests to a compensable degree at any time after service. See 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6)(ii); 3.309(e); McCartt v. West, 12 Vet. App. 164, 166 (1999). 1. Glaucoma, to include as due to herbicide exposure and/or secondary to service-connected diabetes mellitus, type II, or medications for erectile dysfunction In a December 2013 correspondence, the Veteran requested service connection for glaucoma and reported his belief that the disorder had its onset while on active duty. Review of VA treatment records shows a diagnosis of glaucoma during the appeal period, specified as low tension glaucoma in June 2013 and as normal tension glaucoma from September 2016 to April 2019. As a result, the Board finds the element of a current disability has been met in this case. In a December 2011 VA rating decision, the AOJ noted the Veteran’s service in Vietnam during his period of active service and conceded his presumed in-service herbicide exposure. The Veteran’s diagnosis of glaucoma is not listed among the diseases associated with certain herbicide agents under 38 C.F.R. § 3.309(e). As a result, consideration of service connection for this claim on a presumptive basis due to herbicide exposure is not warranted in this case; however, direct service connection remains available. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). Review of the Veteran’s service treatment records, to include examinations and reports of medical history, are silent for any in-service complaints, treatment, or diagnosis of an eye or vision disorder. On the December 1965 and June 1968 Reports of Medical History, he marked “no” for ever having worn glasses and “no” for ever having had eye trouble. At the February 2019 Board hearing, the Veteran reported not having glasses or any kind of vision issue at the time of his entry to active service. Nevertheless, a June 1967 service treatment record documents he has a pair of glasses that is adequate for his eyes and request for prescription be taken from those glasses on a new eye refraction be done. In the March 2017 VA Form 9, the Veteran also reported he first started having issues with his vision in 1967 while in Vietnam. The Veteran is competent to report symptoms and observations of his vision because this requires only personal knowledge as it comes through one’s senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Additionally, as noted above, the Veteran is presumed to have had in-service herbicide exposure. As a result, the Board finds the element of an in-service occurrence has been met in this case. In May 2020, a VA physician provided the following medical opinion: [The Veteran’s] medical record was reviewed and the remand letters and appeals were reviewed. There is nothing in the medical record of any event, trauma or disease which would predispose the [Veteran] to develop glaucoma at a later date. Whether he wore glasses or not has no bearing on the development of glaucoma. The etiology of glaucoma is often related to heredity when it comes on later in life. In October 2020, the same VA physician provided the following medical opinion: [The Veteran’s] remand letter in Aug[ust] 2020 was reviewed and his appeal board interview. [The Veteran] was in the military between 1965 to 1968. He had exposure ot the herbicide. His uncorrected vision on separation in 1968 was 20/20 [both eyes] in each eye. In 2007 he was a glaucoma suspect and he was placed on Travatan. In 2009 he was noted to have arcuate scotomas due to the glaucoma. He did have diabetes mellitus secondary to herbicide exposure. He developed chronic open angle glaucoma at 65 years of age. Chronic open angle glaucoma does not appear with increased incidence in patients with herbicide exposure or with diabetes mellitus and therefore it is less likely than not related to either of these two entities. His military service records are silent for any eye issues. The glaucoma appears to be the normal chronic simple glaucoma unrelated to any event, disease, or trauma experienced while in the military. The VA physician reviewed the claims file, and there is no indication that the physician was not fully aware of the Veteran’s past medical history or misstated any relevant fact. The Veteran’s reported eye and vision symptomatology and presumed herbicide exposure during service was also acknowledged. Moreover, the physician has the requisite medical expertise to render a medical opinion regarding the Veteran’s glaucoma on a direct basis and had sufficient facts and data on which to base a conclusion. There is no contradicting medical evidence of record. The Board finds the May 2020 and October 2020 VA medical opinions, collectively, are highly probative against the claim. The element of medical evidence establishing a nexus between the in-service occurrence and current disability has not been met in this case. Based on the evidence of record, there is no probative and competent evidence that demonstrates the Veteran’s glaucoma was demonstrated in or related to an occurrence during active service. See 38 C.F.R. § 3.303. In sum, the Board finds that the evidentiary record does not contain positive probative evidence to establish that the third criterion to establish service connection on a direct basis has been met. Next, at the February 2019 Board hearing, the contention of a nexus between the Veteran’s glaucoma and his service-connected diabetes mellitus, type II, was raised. Additionally, review of VA treatment records shows a notation of visual disturbances in the left eye possibly due to medications for erectile dysfunction noted prior to the appeal period in September 2006. Service connection for diabetes mellitus, type II, was granted in a May 2015 VA rating decision and service connection for erectile dysfunction was granted in a May 2020 VA rating decision. The element of a service-connected disability has been met in this case. Thus, the Board considers whether the element of medical evidence establishing a nexus between the service-connected disability and the current disabilities has been met in this case. As previously noted, the September 2006 VA treatment record noted the Veteran’s visual disturbances in the left eye and stated, “[u]nsure if due to erectile dysfunction medications (EDM’s) taken in the past. P[atien]t discontinued EDM’s about 1.5 months ago but still notes blurriness in left eye.” This VA treating optometrist’s statement employs speculative language and is assigned less probative weight. Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see Warren v. Brown, 6 Vet. App. 4, 6 (1993). In May 2020, a VA physician provided the following medical opinions: [The Veteran’s] medical records and remand letters were reviewed. There is nothing to suggest that his glaucoma was aggravated beyond its natural course by service[-] connected diabetes mellitus or by medications for erectile dysfunction. Studies at Harvard have shown that Viagra does not change eye pressures in chronic glaucoma and chronic glaucoma does not appear with increased incidence in diabetics. It is less likely than not that the Veteran’s glaucoma was proximately due to or the result of his service-connected diabetes mellitus, type II, or medication for erectile dysfunction. . . . Glaucoma does not occur with increased incidence in diabetics compared to a non[-]diabetic population of like age. In October 2020, the same VA physician provided the following medical opinion: [The Veteran’s] remand letter in Aug[ust] 2020 was reviewed and his appeal board interview. [The Veteran] was in the military between 1965 to 1968. . . . In 2007 he was a glaucoma suspect and he was placed on Travatan. In 2009 he was noted to have arcuate scotomas due to the glaucoma. He did have diabetes mellitus secondary to herbicide exposure. He developed chronic open angle glaucoma at 65 years of age. Chronic open angle glaucoma does not appear with increased incidence in patients with . . . diabetes mellitus and therefore it is less likely than not related to [this] entity. . . . The glaucoma appears to be the normal chronic simple glaucoma . . . Again, the VA physician reviewed the claims file, and there is no indication that the physician was not fully aware of the Veteran’s past medical history or misstated any relevant fact. The Veteran’s assertion of a nexus between his glaucoma and diabetes mellitus, type II, as well as a September 2006 VA treatment record noting a possible link between left eye symptomatology and medications for erectile dysfunction were also acknowledged. Moreover, the physician has the requisite medical expertise to render a medical opinion regarding the Veteran’s glaucoma on a secondary basis and had sufficient facts and data on which to base a conclusion. There is no contradicting probative medical evidence of record. The Board finds the May 2020 and October 2020 VA medical opinions, collectively, are highly probative against the claim. The element of medical evidence establishing a nexus between the identified service-connected disabilities and the current disability has not been met in this case. Based on the evidence of record, there is no probative and competent evidence that demonstrates the Veteran’s diagnosis of glaucoma was caused by or aggravated by his service-connected diabetes mellitus, type II, and/or medications for erectile dysfunction. See 38 C.F.R. § 3.310. In sum, the Board finds that the evidentiary record does not contain positive probative evidence to establish that the criteria to establish service connection on a secondary basis has been met. The Board has considered the Veteran’s reported history regarding the etiology of his glaucoma throughout the appeal period, including vision issues while in Vietnam. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual’s senses. See Layno, 6 Vet. App. at 470. His description of his symptoms is also credible. Because there is no universal rule as to competence on this issue, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this case, the Veteran’s statements do not rise to a level of competency to offer a probative opinion as to the etiology of his diagnosed glaucoma. Determining the etiology of this disability requires inquiry into internal physical processes which are not readily observable and are not within the competence of the Veteran or the appellant in this case. The evidence does not show that either has the medical training or skills needed to make such a determination. As a result, the probative value of the Veteran’s lay assertions is low and outweighed by the probative medical evidence. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim on direct and secondary bases, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Kidney disease, to include as due to herbicide exposure and/or secondary to service-connected diabetes mellitus, type II In an August 2012 correspondence, the Veteran requested service connection for a chronic kidney disease. Review of a February 2010 VA Agent Orange Registry examination report shows a notation of unspecified kidney disease among list of active problems, chronic kidney disease 1971 among list of past medical history, and diagnosis of chronic kidney disease by the VA examiner. Review of VA treatment records also shows a diagnosis of chronic kidney disease during the appeal period, specified as acute kidney injury on chronic kidney disease in June 2013, unspecific chronic kidney disease from June 2013 to February 2014, and chronic kidney disease stage 3 from November 2016 to April 2019. As a result, the Board finds the element of a current disability has been met in this case. The Veteran’s diagnosis of chronic kidney disease, as previously noted, is not listed among the diseases associated with certain herbicide agents under 38 C.F.R. § 3.309(e). As a result, consideration of service connection for this claim on a presumptive basis due to herbicide exposure is not warranted in this case; however, direct service connection remains available. Combee, 34 F.3d at 1039. Review of the Veteran’s service treatment records, to include examinations and reports of medical history, are silent for any in-service complaints, treatment, or diagnosis of a kidney disorder. Nevertheless, at the February 2019 Board hearing, the Veteran reported possibly being treated for a kidney condition shortly after return from his period of deployment. The Veteran is competent to report receiving treatment because this requires only personal knowledge as it comes through one’s senses. See Layno, 6 Vet. App. at 470. Additionally, as noted above, the Veteran is presumed to have had in-service herbicide exposure. As a result, the Board finds the element of an in-service occurrence has been met in this case. In May 2020, a VA physician provided the following medical opinion: Review of records show that Veteran was diagnosed with chronic kidney disease [in] 1971 which is more than one year from separation as he separated [in] June 1968 and therefore can not be considered service related, therefore the Veteran’s kidney disease is less likely than not began during active service or is related to an incident of service to include consideration of his conceded herbicide exposure as agent orange is not known to cause kidney disease. In October 2020, the same VA physician provided the following medical opinion: Records showed that Veteran served in Vietnam with conceded exposure to Agent Orange. Records dated [in] February 2010 showed that Veteran was diagnosed for chronic kidney disease in 1971 which was three years after separation from service and no longer considered service related. Chronic kidney disease is not [a] recognized complication of Agent Orange therefore it is less likely than not that the Veteran’s kidney disease began during or is related to any incident during service to include consideration of his presumed herbicide exposure. The VA physician reviewed the claims file, and there is no indication that the physician was not fully aware of the Veteran’s past medical history or misstated any relevant fact. The Veteran’s presumed herbicide exposure during service was also acknowledged. Moreover, the physician has the requisite medical expertise to render a medical opinion regarding the Veteran’s chronic kidney disease on a direct basis and had sufficient facts and data on which to base a conclusion. There is no contradicting medical evidence of record, thus the Board finds the May 2020 and October 2020 VA medical opinions, collectively, are highly probative against the claim. The element of medical evidence establishing a nexus between the in-service occurrence and current disability has not been met in this case. Based on the evidence of record, there is no probative and competent evidence that demonstrates the Veteran’s chronic kidney disease was demonstrated in or related to an occurrence during active service. See 38 C.F.R. § 3.303. In sum, the Board finds that the evidentiary record does not contain positive probative evidence to establish that the third criterion to establish service connection on a direct basis has been met. Next, at the February 2019 Board hearing, the Veteran asserted a nexus between his kidney disease and service-connected diabetes mellitus, type II. The issue of service connection for diabetes mellitus, type II, was granted in a May 2015 VA rating decision. The element of a service-connected disability has been met in this case. Thus, the Board considers whether the element of medical evidence establishing a nexus between the service-connected disability and the current disability has been met in this case. In May 2020, a VA physician provided the following medical opinions: Review of records show that the Veteran was diagnosed with chronic kidney disease in 1971 and diabetes mellitus[,] type II[,] in January 2015. Chronic kidney disease predated diabetes mellitus and is therefore less likely than not that the Veteran’s kidney disease was proximately due to or the result of his service-connected diabetes, type II. Review of records showed that the Veteran was noted with mild decreasing [estimated glomerular filtration rate] dated [in] December 2011 however there are no baseline is found on records to confirm aggravation of the kidney condition and it is therefore that the chronic kidney disease was not . . . aggravated beyond its natural progression by his service-connected diabetes mellitus[,] type II. Again, the VA physician reviewed the claims file, and there is no indication that the physician was not fully aware of the Veteran’s past medical history or misstated any relevant fact. The Veteran’s assertion of a nexus between his chronic kidney disease and diabetes mellitus, type II, was also acknowledged. Moreover, the physician has the requisite medical expertise to render a medical opinion regarding the Veteran’s chronic kidney disease on a secondary basis and had sufficient facts and data on which to base a conclusion. There is no contradicting medical evidence of record. The Board finds the May 2020 VA medical opinions are highly probative against the claim. The element of medical evidence establishing a nexus between the identified service-connected disability and the current disability has not been met in this case. Based on the evidence of record, there is no probative and competent evidence that demonstrates the Veteran’s diagnosis of chronic kidney disease was caused by or aggravated by his service-connected diabetes mellitus, type II. See 38 C.F.R. § 3.310. In sum, the Board finds that the evidentiary record does not contain positive probative evidence to establish that the criteria to establish service connection on a secondary basis has been met. The Board has considered the Veteran’s reported history regarding the etiology of his chronic kidney disease throughout the appeal period, including a nexus to his service-connected diabetes mellitus, type II. Again, he is competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual’s senses. See Layno, 6 Vet. App. at 470. His description of his symptoms is also credible. In this case, the Veteran’s statements do not rise to a level of competency to offer a probative opinion as to the etiology of his diagnosed chronic kidney disease. Determining the etiology of this disability requires inquiry into internal physical processes which are not readily observable and are not within the competence of the Veteran or the appellant in this case. The evidence does not show that either has the medical training or skills needed to make such a determination. As a result, the probative value of the Veteran’s lay assertions is low and outweighed by the probative medical evidence. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim on direct and secondary bases, the doctrine is not for application. Gilbert, 1 Vet. App. at 49. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Carter, 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.