Citation Nr: 21031867 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-22 009 DATE: May 24, 2021 ORDER Entitlement to service connection for bilateral cataracts, to include as due to claimed exposure to Agent Orange, is denied. REMANDED Entitlement to service connection for a left hip condition is remanded. Entitlement to service connection for a neck condition is remanded. Entitlement to service connection for a right hip condition is remanded. FINDING OF FACT The most probative evidence of record does not establish that the Veteran was exposed to herbicides during his active service or that his cataracts are otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for cataracts, to include as due to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1958 to November 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a January 2021 virtual Board hearing. A transcript of that hearing has been associated with the claims file. The Board notes that the matter of entitlement to service connection for carotid artery disease was the subject of a Board hearing with a different VLJ and, as such, will be the subject of a future Board decision. 1. Entitlement to service connection for bilateral cataracts, to include as due to claimed exposure to Agent Orange The Veteran contends that he has bilateral cataracts, status post removal, that were caused by his claimed exposure to Agent Orange while on active duty in the United States Navy. Specifically, the Veteran contends that from 1964 to 1967, while stationed in Okinawa and Hawaii, he was exposed to Agent Orange from working on the interior and exterior of P2V-7 aircraft that had been flown over and landed in Vietnam and whose pilots had "boots on the ground". Alternatively, the Veteran asserts that his cataracts were caused by his diabetes mellitus, type II, for which he is not service connected. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain diseases may be presumed to have been incurred in service where a Veteran was exposed to herbicide agents, such as Agent Orange, while on active service, even when there is no evidence of such exposure during the period of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a) (6), 3.309 (e). Veterans who served in the Republic of Vietnam during the Vietnam Era are presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307 (a) (6) (iii). In addition, an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. 38 C.F.R. § 3.307 (a) (6) (v). Generally, the regulation applies where an enumerated disease becomes manifest to a compensable degree at any time after active service. 38 C.F.R. § 3.307 (a) (6) (ii). Cataracts are not included in the list of enumerated diseases. The presumptive regulations, however, do not preclude a claimant from establishing service connection with proof of direct causation. See, Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). With respect to the Veteran's allegation that his bilateral cataracts, status post removal, should be service connected, based upon herbicide agent exposure, the Board must find the evidence of record is against a finding of a nexus on an actual or presumptive basis. In a December 29, 2014 administrative decision, the Joint Services Records Research Center (JSRRC) coordinator acknowledged the Veteran's contention that he was exposed to Agent Orange from working on aircraft that flew over and landed in Vietnam while he was stationed in Okinawa and Hawaii and noted that, upon receipt and review of his service personnel file and service treatment records, no evidence of "any activities that would have exposed him to herbicides" was found. The coordinator then concluded that the evidence is insufficient for VA to acknowledge Agent Orange exposure on either a presumptive or direct facts-found basis due to secondary or remote contact with aircraft or equipment previously used in Vietnam. The Veteran testified at the January 2021 Board hearing that his cataracts are due to his exposure to Agent Orange because he "looked it up on the internet...that the cataracts are caused by diabetes." He then stated that he was exposed to Agent Orange in 1964 when he spent several weeks in Hawaii, followed by a three-month assignment to Okinawa, where he worked on aircraft that had landed in Vietnam. He further stated that the aircraft were P2V-7 aircraft. He then stated that the aircraft crew "had their boots on the ground" and asserted that "that's where [he] got contact with Agent Orange." He further stated that after he went back to Hawaii he continued to work on these aircraft. He stated that his cataracts have been removed. The Veteran's service personnel records indicate that he was temporarily assigned to Patrol Squadron Twenty-One in Okinawa from November 10, 1963 to February 24, 1964. The records further note that he was assigned to Patrol Squadron 4 afterwards, through 1967. Here, the Board concludes that the claim must be denied because there is no probative evidence demonstrating that the Veteran served in the Republic of Vietnam; that exposure to herbicide agents may be presumed based on contact with C-123 aircraft; that the Veteran was actually exposed to herbicides during active service; or that the Veteran's cataracts are otherwise medically attributable to his active service on any other basis. Additionally, as noted above, there is a rebuttable presumption of exposure to herbicides where a Veteran served in the Republic of Vietnam during the Vietnam Era or had certain types of exposure to C-123 aircraft. In this case, the Veteran has not contended, and the record does not show, that he served in the Republic of Vietnam. The relevant statutes and regulations do not provide for presumption of exposure to herbicide agents based on service in Okinawa. The Veteran also has not contended that he performed service in the Air Force or Air Force Reserve and had the type of contact with C-123 aircraft described in 38 C.F.R. § 3.307 (a) (6) (v). The Board notes that the record confirms that the Veteran was an electrician. However, the Veteran contends that his exposure to herbicide agents was due to maintenance work on P2V-7 aircraft, and not C-123 aircraft. The Veteran's military personnel records do not any work performed on C-123 aircraft. The relevant statutes and regulations do not provide for presumption of exposure to herbicide agents based on contact with equipment other than C-123 aircraft. Therefore, exposure to herbicide agents based on contact with P2V-7 aircraft that may have been used in Vietnam may not be presumed. In short, there is no basis in the present case for presuming exposure to herbicide agents. As such, the evidence must show that the Veteran was actually exposed to herbicide agents for service connection to be granted based on exposure to herbicide agents during his active service. The Board acknowledges the April 16, 2020 private medical opinion from Dr. G. Rebecca, who asserted that the Veteran worked directly on aircraft that flew in Vietnam for over 2 years without any protective equipment, "giving him direct contact with Agent Orange." The Board notes that this appears to be nothing more than repeating the Veteran's contention that he was exposed to Agent Orange. The doctor provided no evidence or rationale as to how he arrived at the conclusion that the Veteran was exposed to Agent Orange aside from repeating the Veteran's contentions which the Board has found to not support service connection for presumptive exposure. As such, the Board finds this opinion to be of no probative value. Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (noting that factors for assessing the probative value of a medical opinion include the medical expert's access to the claims file and the thoroughness and detail of the opinion). Regarding the Veteran's contention that his cataracts are secondary to his diabetes mellitus, type II, the Veteran submitted an October 17, 2018 letter from Dr. G. Marten-Ellis, who stated the Veteran has been a patient of his since June 2004 and that his diabetes "may have contributed to hasten the development of his cataracts." It was then noted that the Veteran underwent right eye cataract surgery on April 12, 2005, and left eye cataract surgery on June 12, 2012. In addition to the fact that the medical opinion expressed is at best speculative, the Board notes that the Veteran is not service connected for diabetes mellitus, type II. As such, the Board finds that there is no basis upon which to award the Veteran service connection for cataracts as secondary to his non-service connected diabetes mellitus, type II. See 38 C.F.R. § 3.310. The Board is mindful that even if a veteran is not entitled to the presumption, service connection may be established with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). However, the Veteran has not asserted any events or circumstances for the Board to find exposure to Agent Orange or any herbicide agent on a facts-found basis. Therefore, the Board finds that the preponderance of the evidence is against a finding that the Veteran was exposed to Agent Orange, or any herbicide agent. Additionally, the Board must find that the preponderance of the evidence is against a finding that the Veteran's cataracts were caused by the asserted exposure. As the preponderance of the evidence is against the claim of service connection for cataracts, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a left hip condition is remanded. The Veteran testified at the January 2021 Board hearing that he did not injure his hips while on active duty, but rather, he "just wore them out in the contortionist positions that [he]" was in when he "worked on small aircraft for many, many years." He then stated that he had to have his left hip replaced in 1999, and then the right hip in 2010. He further stated that he never discussed his Navy service with his physician who treated him for his hips. A review of the service treatment records reveals an October 20, 1970 service health history record which notes arthritis of hips in the remarks section. Based on the above evidence, it is unclear whether the Veteran's left hip condition is related to his service. Thus, the Veteran should be afforded a VA examination to determine the nature and etiology of his left hip condition. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to service connection for a neck condition is remanded. The Veteran was afforded a VA contract cervical spine examination in June 2019. Diagnoses of cervical spondylosis, degenerative disc and facet joint disease with bulging disc and disc herniation were noted. He reported neck pains that occur with neck rotation and flexion. He asserted that, though he could not recall the date of onset, it was due to his duties as a mechanic while in the Navy. The examiner opined that the Veteran's cervical spine condition is less likely than not proximately due to or the result of his service-connected lumbar spine, noting that lumbosacral strain with IVDS and degenerative arthritis of the lumbosacral spine does not cause the Veteran's cervical spine condition due to a lack of over-compensatory relationship. When VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the examiner did not provide an opinion regarding direct service connection or aggravation. As such, the Board finds this opinion is of no probative value. In an August 26, 2019 private medical opinion, Dr. J. M. Adiele noted that while on active duty the Veteran worked on interior and exterior aircraft components, developed low back pain and was found to have degenerative joint disease subsequent to an x-ray in 1977. The doctor then stated that a June 2017 CT exam revealed moderate to severe multilevel spondylosis with severe degenerative changes at C1-C2. The doctor opined that it is more likely than not that his cervical spine condition is related to his active duty. The Board finds this opinion to be of no probative value as no rationale was provided. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the above, the Board remands this matter for a VA examination to determine the nature and etiology of the Veteran's claimed neck condition. 3. Entitlement to service connection for a right hip condition is remanded. Based on the left hip analysis, this matter is remanded for a VA examination to determine the nature and etiology of the Veteran's right hip condition. McClendon. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his bilateral hip conditions. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Are the Veteran's bilateral hip conditions at least as likely as not related to service? The examiner must address the Veteran's contentions that his bilateral hip conditions developed because he "just wore them out in the contortionist positions that [he]" was in when he "worked on small aircraft for many, many years" while on active duty. The examiner's attention is invited to the October 20, 1970 service health history record which notes arthritis of hips in the remarks section. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. Schedule the Veteran for a VA examination for his neck condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran's neck condition at least as likely as not related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Is the Veteran's neck condition at least as likely as not proximately due to his service-connected lumbar spine condition? Is the Veteran's neck condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected lumbar spine condition? (Continued on the next page) 3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. C. TRUEBA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brian P. Keeley 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.