Citation Nr: 21030855 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-02 095 DATE: May 19, 2021 ORDER Entitlement to service connection for a left eye disorder, to include diabetic retinopathy and glaucoma is denied. REMANDED 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure, is remanded. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to herbicide exposure, is remanded. FINDING OF FACT The weight of competent and probative evidence does not show that the Veteran's left eye disorder onset during or was caused by any aspect of his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left eye condition has not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1964 to January 1985. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2017. A transcript of that proceeding has been associated with the Veteran's claims file. In September 2018 the Board remanded the appeal to the RO to provide VA examinations. In May 2020 the Board remanded the case to the RO to provide a Supplemental Statement of the Case (SSOC) to the Veteran. In September 2020 the Board issued another remand order for further development. There has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 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 between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Entitlement to service connection for a left eye disorder, to include diabetic retinopathy and glaucoma Service personnel records show that the Veteran served as a radioman including service aboard a destroyer, USS Dahlgren, that anchored in the harbor at Da Nang, Republic of Vietnam in 1967. Therefore, he is presumed to have been exposed to the designated herbicide agents used in Vietnam. The Veteran has been granted service connection for diabetes mellitus and for cataract of the right eye, both associated with herbicide exposure. The Veteran contends that he has diabetic retinopathy of the left eye due to his military service. In September 2020, the Board found that the record did not show that the Veteran had a diagnosis of diabetic retinopathy during the appellate period, but rather had been diagnosed with glaucoma of the left eye. The Board has thus recharacterized the Veteran's claim of service connection for diabetic retinopathy to that of a left eye disorder, to include diabetic retinopathy and glaucoma. A review of the Veteran's STRs show no complaints, treatment or diagnosis of diabetic retinopathy or glaucoma. Post-service, the Board has not identified any diagnosis of diabetic retinopathy. The record does show that the Veteran had glaucoma surgery in 1993. See August 2012 CAPRI, p. 23. The Veteran then had a shunt placement in the left eye in 1994 due to his glaucoma, and due to his glaucoma lost vision in his left eye. See December 2011 CAPRI, p. 12. This was followed by cataract extraction of the left eye in 1995. See August 2012 CAPRI, p. 23. The Veteran submitted his claim for service connection in June 2012, and in January 2013, the Veteran underwent a VA examination. The VA examiner indicated that the Veteran had a 2-year history of diabetes but did not have any evidence of diabetic retinopathy. The VA examiner opined that the Veteran's vision and visual field loss in the left eye was the result of glaucoma. Regarding the Veteran's glaucoma, the VA examiner stated that the Veteran "has a history of glaucoma related to a trauma after being punched in the OS in 1986 after he was out of military service. He had a glaucoma filtering surgery 4 years after the trauma. The patient then developed a cataract which required surgery 2 years after the glaucoma surgery." See January 2013 VA Examination, pp. 2, 22. The RO denied the claim, and the Veteran submitted a timely notice of disagreement (NOD). In the Veteran's NOD, he contended that his diabetic retinopathy was caused by herbicide exposure. See March 2014 NOD. The Veteran submitted a timely VA Form 9, in which he reiterated his contention that his left eye disability was caused by herbicide exposure and requested a hearing before the Board. See January 2016 Form 9. The Veteran testified at a hearing in December 2017. At the hearing the Veteran testified that his private physicians had informed him that his left eye disability was due to herbicide exposure. The record was kept open for 30 days for the Veteran to provide medical evidence. See December 2017 Hearing Transcript, p. 14. The Board subsequently issued remand instructions, and the Veteran underwent another VA examination. There, the VA examiner conducted an in-person examination and did not diagnose diabetic retinopathy. Rather, the VA examiner stated that the Veteran's left eye vision loss was due to traumatic glaucoma. See September 2019 C&P Exam. See September 2019 C&P Exam, p. 7. The Board finds that the January 2013 and September 2019 VA examinations were of significant probative value concerning the question of whether the Veteran has diabetic retinopathy, as the VA examiners conducted in-person examinations, reviewed the Veteran's records, considered his lay statements, and provided rationales supported by the record. However, in September 2020 the Board found that while the evidence does not show the Veteran to have diabetic retinopathy of the left eye, it does show the Veteran has glaucoma of the left eye. Therefore, the Board ordered a VA examination to be conducted regarding the Veteran's left eye glaucoma. As per Board remand orders, the Veteran underwent a VA examination in December 2020. The examiner diagnosed left eye glaucoma secondary to eye trauma, and pseudophakia of the left eye. The VA examiner first provided an opinion that diabetic retinopathy was less likely than not due to the Veteran's military service. He stated: "Typical diabetic retinopathy can affect the whole body and would appear in both eyes. However, there were no signs of diabetic retinopathy in the right eye, which would mean the left eye was at least likely as not (50 percent or greater probability) also lacking signs of diabetic retinopathy." The VA examiner further stated that the Veteran's pseudophakia of the left eye was less likely than not due to his military service. In this, he stated: "diabetic cataracts can form due to diabetes mellitus that can be caused by Agent Orange exposure, and usually would be of similar severity between both eyes. The cataract surgery performed on the veteran's left eye would be more likely due to a cataract that occurred from the veteran's trauma." See January 2021 C&P Exam. The Board finds that the December 2020 VA examiner's nexus opinions are of significant probative value, as he conducted an in-person examination, reviewed the Veteran's medical records, considered his lay statements and provided detailed rationales based upon the record. After a careful review of the record, the Board finds that there is no competent and probative evidence of a nexus between the Veteran's eye condition and his military service, to include his service-connected disabilities and from herbicide exposure. In the absence of such evidence, the Veteran's claim must be denied. The Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND Entitlement to service connection for hypertension, to include as due to herbicide exposure Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to herbicide exposure In January 2020, VA examiners provided opinions that the two diseases were not caused by service including herbicide exposure. Regarding peripheral neuropathy, the examiner found that service and post-service treatment records provided no objective evidence of neuropathy symptoms occurring during, or in the year following, active duty service. Initial documentation of Veteran's complaints did not occur until 2010, twenty-five years after separation from service. While herbicide/Agent Orange exposure may cause peripheral neuropathy, symptoms appear in proximity to the actual exposure and typically resolve in the absence of ongoing or continued exposure. This Veteran's delayed onset of documented symptoms and chronicity of the symptoms over time despite lack of ongoing exposure to Agent Orange refutes an exposure or toxin-related neuropathy. In a September 2020 remand, the Board found that an opinion was necessary to address direct service connection even if the disease was late onset. Regarding hypertension, an examiner noted that when diagnosed in 2005, the Veteran was over age 60, had a body mass index over 40 and a family history of hypertension. The examiner addressed the findings of a 2018 Institute of Medicine study that suggested sufficient evidence of an association between hypertension and herbicide, but cited another study and found that the weight and age related factors outweighed the presumed herbicide exposure. Another examiner found that the Veteran's service connected coronary artery disease did not cause or aggravate hypertension. IN the September 2020 remand, the Board found that the opinion only addressed early onset hypertension. In September 2020 the Board issued a remand order for further development to determine if the Veteran's hypertension and peripheral neuropathy were as likely as not due to herbicide exposure in service. As per Board remand directives a VA examination was provided in December 2020. Regarding the Veteran's claim of service connection for hypertension, the VA examiner first gave a positive nexus opinion, in which she stated that herbicide exposure could cause hypertension. See January 05, 2021 C&P Exam. Then, in the same month, the VA examiner negated the first nexus opinion, writing in an addendum opinion that the Veteran's hypertension was less likely than not caused by herbicide exposure, as the Veteran's onset of hypertension was not until 20 years after service. See January 21, 2021 C&P Exam. Simply citing the passage of time without further explanation is an inadequate reason. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, another opinion needs to be obtained for the examiner to accurately consider and address the Veteran's medical history and render an opinion supported by adequate rationale regarding whether the Veteran's hypertension was as likely as not caused by herbicide exposure. Likewise, the Board finds that the Veteran's claim of service connection for peripheral neuropathy was originally indicated to be as likely as not due to herbicide exposure due to peripheral neuropathy to be possibly caused by herbicide exposure. See January 05, 2021 C&P Exam. As above, the VA examiner reversed this opinion in an addendum opinion, in which she stated that the Veteran's peripheral neuropathy was less likely than not caused by herbicide exposure, because it was late onset rather than early onset. See January 21, 2021 C&P Exam. The Board finds this rationale to be inadequate, as if a veteran is found to have been exposed to an herbicide agent, to include Agent Orange, but his diagnosed disease is not eligible for presumptive service connection, the effects of the herbicide exposure must still be considered on a direct basis. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). The matters are REMANDED for the following actions: 1. Schedule an addendum opinion with an appropriate clinician to determine the nature and etiology of the Veteran's hypertension and peripheral neuropathy. The examiner must review the file including the January 2020 and conflicting January 2021 opinions opine whether the Veteran's hypertension and peripheral neuropathy is at least as likely caused by herbicide exposure in service. The examiner is requested to provide a rationale that includes a discussion of the Veteran's medical history, if applicable, to include all factors in addition to herbicide exposure. 2. If the examiner cannot provide the above opinions, the examiner should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies.) J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, 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.