Citation Nr: 21022940 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-37 213 DATE: April 19, 2021 ORDER Entitlement to service connection for cataract of the left eye, to include as due to x-ray radiation exposure, or alternatively Agent Orange exposure, is granted. REMANDED Entitlement to service connection for prostate cancer, to include as due to exposure to agent orange is remanded. FINDING OF FACT Affording the Veteran the benefit of the doubt, his cataract of the left eye is as likely as not related to his active service. CONCLUSION OF LAW The criteria for service connection for cataract of the left eye have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1964 to July 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision entered by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board denied the claims for service connection for cataract of the left eye and basal cell carcinoma, finding that the most probative evidence of record showed that the Veteran’s conditions were not the result of exposure to ionizing radiation during service. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), and in an October 2019 joint motion for remand (JMR) the parties agreed that remand was required to consider the Veteran’s assertions of exposure to herbicide agents in light of the holding in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). See May 2013 Lay Statement. This matter was last before the Board in April 2020 when it was remanded for evidentiary development. Specifically, the Board directed the RO to request the Veteran’s complete service personnel records so to determine whether the U.S.S. Enterprise was within 12 nautical miles of the Republic of Vietnam from July 1967 to July 1968 (or any additional dates found based on the above) while the Veteran was aboard the ship. The Board notes that the record now contains a VA Memorandum conceding exposure to herbicides based on the Veteran’s nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. Accordingly, the Board finds compliance with the terms of the April 2020 Board decision. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for cataract of the left eye, to include as due to x-ray radiation exposure, or alternatively Agent Orange exposure is granted. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Evidence that an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Diseases diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to prevail on a claim of service connection, there must be evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of an in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran submitted his claim in June 2010 and indicated that he had a cataract of the left eye due to radiation exposure as an X-ray technician while in the Navy. A review of the Veteran’s DD214 shows his military occupational specialty (MOS) was x-ray technician. The Veteran’s sservice treatment reports (STRs) do not reveal any complaints, findings, or treatment for cataracts. Post-service records on appeal includes private treatment reports from Midwest Eye Care reflecting a diagnosis of cataract of the left eye. The physician noted that the Veteran interestingly developed a cataract in his left eye at the early age of 39, which is not a typical medical occurrence. He further noted that although the etiology of cataracts is always speculative, because of the age of the Veteran at the time of its formation, “one would have to wonder whether exposure to various agents at a young age were in any way causative.” A January 2013 opinion from the Veteran’s attending medical oncologist noted a known relationship between cataracts and ionizing radiation, and opined that the Veteran would have likely been exposed to ionizing radiation while working as a radiation therapy technologist in the 1960’s, a time when there was not very good exposure surveillance. See January 2013 Heartland Oncology and Hematology. A specialist from Nebraska Cancer Specialist examined the Veteran in May 2014 and provided an opinion for the record. He noted a relationship between cataracts and ionizing radiation, and opined that the Veteran’s cataracts were related to ionizing radiation due to his exposure as a radiation technologist in the Navy. Pursuant to the April 2020 remand, the Veteran was afforded a VA examination to determine the nature and etiology of his left eye cataract in February 2021. The examiner stated that while there is no way of knowing the etiology for sure, the fact that the Veteran had a cataract at such a young age does point to the possibility of some type of external factor that caused the cataract. The physician explained that if the cataract was directly linked to agent orange, it would be expected that the cataracts would have formed in both eyes at about the same time. However, he concluded that it is possible that the left cataract is related to his time as an x-ray technician. In consideration of the evidence of record, the Board finds that the preponderance of the evidence is in favor of service connection of cataracts of the left eye. In so finding, the Board finds the January 2013 and May 2014 private opinions, along with the February 2021 VA opinion to be probative, as they are based on a thorough review of Veteran’s service treatment records, VA treatment records, and the physicians’ medical expertise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for prostate cancer, to include as due to exposure to agent orange, is remanded. The Veteran contends that his diagnosed basal cell carcinoma is a direct result of his military service, notably his exposure to agent orange while serving aboard the USS Enterprise in 1966, which was just off the coast of the Republic of Vietnam. Pursuant to the April 2020 remand, the Board notes that the record contains a VA Memorandum conceding the Veteran’s exposure to herbicides based on his nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s appeal. The Board finds the November 2020 examiner’s opinion as to the Veteran’s basal cell carcinoma inadequate. After providing a brief overview of what most often causes basal cell carcinoma, the examiner provided a conclusory negative opinion based on basal cell carcinoma not being found on the list of diseases due to Agent Orange. This opinion is not adequate for the Board to adjudicate this claim because service connection may still be established with evidence of direct causation. As the Board has insufficient competent medical evidence to make a decision on the claim, another remand to obtain a medical opinion in necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Return the record to the VA examiner who conducted the November 2020 examination. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. If the November 2020 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the opinion. After a review of the entire record, the examiner should provide an opinion on the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s currently diagnosed basal cell carcinoma is related to his acknowledged in-service herbicide exposure? The examiner’s rationale cannot be based solely on the fact that VA has not included basal cell carcinoma on the list of presumptive conditions. In other words, the Board needs an opinion as to the likelihood that the Veteran’s basal cell carcinoma, without regard to the conditions VA recognizes as being presumptively related to herbicide exposure, is nevertheless at least as likely as not related to his exposure to herbicide agents during service. A clear rationale for all opinions given is needed. A discussion of the facts and medical principles involved, and the Veteran’s lay assertions should be considered in giving any opinion. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.