Citation Nr: 25007948 Decision Date: 06/13/25 Archive Date: 06/13/25 DOCKET NO. 21-00 814 DATE: June 13, 2025 REMANDED Entitlement to service connection for esophageal condition(s), to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for bilateral eye condition, to include as due to herbicide agent exposure and as secondary to service-connected diabetes mellitus II, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1965 to April 1967. Evidence affiliated with the claims file also indicates that the Veteran was examined for induction in February 1964 and that he served in the Reserve from his separation from active duty until May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2015 and January 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in December 2021 and January 2023 for additional development. Regrettably, the Board finds there has not been substantial compliance with its January 2023 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Although the Board sincerely regrets the additional delay, another remand is necessary for additional development. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.902(c). 1. Entitlement to service connection for esophageal condition(s), to include as due to herbicide agent exposure, is remanded. 2. Entitlement to service connection for bilateral eye condition, to include as due to herbicide agent exposure and as secondary to service-connected diabetes mellitus II, is remanded. The Veteran contends that he was exposed to herbicide agents while serving at the Panama Canal, and that his esophageal condition(s) and bilateral eye condition are related to that exposure. See November 2022 Correspondence. Alternatively, the Veteran claims that his bilateral eye condition is secondary to his service-connected diabetes mellitus II. Id. The Veteran specifically claims that he was exposed to herbicide agents while stationed in an area of the Panama Canal Zone called Rie Hata, where the growth of the jungle was severe and spraying of herbicide agents was performed to allow movement. See October 2015 Statement in Support of Claim. Additionally, he asserts that he was exposed to herbicide agents at Fort Sherman and Fort Davis. See January 2016 Notice of Disagreement; July 2019 Correspondence. He contends that he sought treatment in Panama for a rash after being exposed to herbicide agents. See July 2019 Correspondence; September 2021 VA Form 9. In support of his claim, the Veteran submitted an article indicating that herbicide agents were used in the Panama Canal Zone during his deployment period. See March 2017 Correspondence. In the December 2021 Board remand, the Board specifically requested that the Agency of Original Jurisdiction (AOJ) "take the appropriate steps to verify the Veteran's claimed in-service exposure to herbicide agents during his service at the Panama Canal Zone" after obtaining additional information from the Veteran regarding the dates, locations, and names of any other persons associated with his claimed exposure. See December 2021 BVA Decision. In January 2022, the Veteran submitted a VA Form 21-4138 indicating that he was stationed at Fort Davis from August 1964 to August 1965. In response, the AOJ conducted research concerning whether the Veteran was exposed to herbicide agents during his deployment at the Panama Canal Zone, but only focused on the Veteran's deployment from August 1965 to August 1967. In January 2023, the Board again remanded the claim because the AOJ did not conduct additional research as to whether the Veteran was exposed to herbicide agents while serving in the Panama Canal Zone from August 1964 to August 1965. Additionally, the AOJ did not acknowledge or review the article submitted by the Veteran indicating that herbicide agents were used in the Panama Canal Zone during his deployment period. The Board directed that the AOJ obtain any outstanding service personnel records or service treatment records indicating that the Veteran was stationed in the Panama Canal Zone from August 1964 to August 1965 and that he sought treatment for a rash. Additionally, the Board directed that the AOJ take the appropriate steps to attempt to verify the Veteran's claimed in-service exposure to herbicide agents during his service at the Panama Canal Zone, to include between August 1964 to August 1965 and August 1965 to August 1967. The Board specifically noted that the research conducted should include the Veteran's service at Fort Sherman, Fort Davis, and Rie Hata and should review the article submitted by the Veteran concerning herbicide agents used in Panama in the 1960's and 1970's. Then, the Board directed the AOJ to obtain examinations and opinions concerning the etiology of the Veteran's esophageal condition(s) and bilateral eye condition. Pursuant to the Board's remand, the AOJ submitted a request to the National Personnel Records Center (NPRC) for the Veteran's active-duty inpatient clinical records concerning treatment for a rash from August 28, 1965 to December 31, 1965; January 1, 1966 to December 31, 1966; and January 1, 1967 to April 4, 1967 at Fort Sherman, Panama Canal. In response, the NPRC responded that there were no listings for treatment in 1965 or 1967 at Fort Sherman for the Veteran. See September 2023 Military Personnel Record. Additionally, the AOJ requested research from the Records Research Center, stating that the Veteran was stationed in the Panama Canal Zone from August 28, 1965 to April 7, 1967 and asserted that he was exposed to Agent Orange, which was used to kill overhead foliage in and around Fort Davis. The AOJ requested that the Records Research Center review the article submitted by the Veteran concerning herbicide agents in Panama in the 1960's and 70's. See January 2024 Records Research Center Response. In response to the request, the Records Research Center stated that research was completed on the Veteran's claimed exposure event claiming that from August 28, 1965 to April 7, 1967, the Veteran was stationed in the Panama Canal Zone and was exposed to Agent Orange. The 1966 and 1967 Unit Histories submitted by the 531st Transportation Company were reviewed and unit records for 1965 were requested from the National Archives and Records Administration, which was unable to locate the unit histories for that year. The Records Research Center concluded that no evidence was located to support documentation of the claimed exposure event. In February 2024, a VA Memorandum was issued indicating that there was evidence of non-deployment related exposure consistent with the circumstances of the Veteran's service. Specifically, the Veteran's personnel records showed exposure to various fuels, exhaust, and industrial solvents. Therefore, the Memorandum concluded that the Veteran participated in a toxic exposure risk activity (TERA). In March 2024, a VA examination was obtained to assist in determining the etiology of the Veteran's esophageal conditions. The examiner found diagnoses of gastroesophageal reflux disease (GERD) and hernia hiatal. The Veteran reported that his symptoms began in the 1990's, including acid reflux, heartburn, and difficulty swallowing. The examiner opined that the Veteran's esophageal conditions were less likely than not incurred in or caused by service. As a rationale, the examiner stated that there was a lack of substantiating evidence supporting a nexus between GERD and hiatal hernia and military service. The examiner found that, without chronicity during service or after service, a post-service event, illness, or injury was considered to be a more likely etiology. The examiner further opined that the Veteran's esophageal conditions were less likely than not caused by the indicated TERA, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities. As a rationale, the examiner stated that current medical literature did not support toxic exposure as a cause of hiatal hernias. Rather, a hiatal hernia occurred when part of the stomach protruded up into the chest through the sheet of muscle called the diaphragm. This resulted in a weakening of the surrounding tissues and could be aggravated by obesity and/or smoking. The examiner found that the Veteran's hiatal hernia was the most likely cause of the Veteran's GERD symptoms. In April 2024, a VA examination was obtained for the Veteran's bilateral eye condition. The examiner noted diagnoses of glaucoma of both eyes and pseudophakia H27 of both eyes. The examiner indicated that the Veteran was diagnosed with glaucoma in 1996 and had decreased vision over the last several years with a severe restriction in the visual field in both eyes. The examiner opined that the Veteran's glaucoma was less likely than not incurred in or caused by service. As a rationale, the examiner stated that the Veteran served from 1965 to 1967 and was later diagnosed with glaucoma in 1996 with no connecting conditions or events. Furthermore, there were no reports of trauma which could have contributed to glaucoma. Additionally, the examiner provided a secondary service connection opinion finding that the Veteran's glaucoma was less likely than not proximately due to or the result of the Veteran's service-connected diabetes. The examiner reasoned that the diabetes was unlikely to have contributed or exacerbated the glaucoma because there was no diabetic retinopathy or neovascularization of the angle. Additionally, there were no prior examinations that indicated a history of complications from diabetes that could affect glaucoma. The examiner also opined that the Veteran's glaucoma was not at least as likely as not aggravated beyond its natural progression by diabetes. As a rationale, the examiner stated that the Veteran was diagnosed with glaucoma in 1996 and there were no signs of glaucoma at the time of the Veteran's discharge in 1967. Thus, the examiner concluded that the Veteran's glaucoma could not have been aggravated by the time in service due to the timing of the diagnosis. The examiner also opined the Veteran's glaucoma was less likely than not caused by the indicated TERA after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. As a rationale, the examiner stated that the Veteran served from 1965 to 1967 and his glaucoma was diagnosed in 1996. There was no evidence of a link between the exposure and the subsequent development of glaucoma. The Board finds there was not substantial compliance with its January 2023 remand instructions because the AOJ's request for research from the Records Research Center did not include a request for research concerning the period of August 1964 to August 1965 or from April 1967 to August 1967. Rather, research was only requested for the period of August 1965 to April 1967. Additionally, the AOJ only requested research for the Veteran's service at Fort Sherman, and did not request research for his service at Fort Davis and Rie Hata. Finally, while the AOJ mentioned the article submitted by the Veteran concerning Agent Orange testing in Panama in the 1960's and 70's in its request for research, it is unclear from the Records Research Center Response whether this article was reviewed in conducting the research. A remand by the Board confers on claimants, as a matter of law, the right to compliance with remand orders and on VA a concomitant duty to ensure substantial compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The AOJ did not conduct research as to whether the Veteran was exposed to herbicide agents in the Panama Canal Zone from August 1964 to August 1965 and while stationed at Fort Davis and Rie Hata, as directed by the Board in its January 2023 remand instructions. Furthermore, the AOJ did not clarify whether the Records Research Center reviewed the article submitted by the Veteran concerning Agent Orange at the Panama Canal during the time of his deployment in conducting its research. For these reasons, the Board finds that substantial compliance has not been met. Accordingly, remand is warranted for the AOJ to conduct research concerning whether the Veteran was exposed to herbicide agents in the Panama Canal Zone from August 1964 to August 1965 and from August 1965 to August 1967. This request should specifically include a request for research as to whether the Veteran was exposed to herbicide agents while stationed at Fort Sherman, Fort Davis, and Rie Hata. Additionally, the AOJ should ensure that the Records Research Center reviews the article submitted by the Veteran concerning Agent Orange at the Panama Canal in the 1960's and 1970's. Furthermore, the Board finds the AOJ's attempt to obtain service personnel records and/or service treatment records for the Veteran's asserted in-service treatment for a rash to be insufficient. The AOJ only requested records concerning treatment for a rash from August 1965 to April 1967, and did not request records from August 1964 to August 1965 or from April 1967 to August 1967. Additionally, the NPRC's response only confirmed that no treatment records for a rash existed for the years of 1965 and 1967. Thus, it is unclear whether the NPRC attempted to confirm whether treatment records for a rash existed in 1964 or 1966. Accordingly, remand is warranted to again attempt to obtain any outstanding service personnel records and/or service treatment records indicating that the Veteran sought treatment for a rash from August 1964 to August 1967 while stationed at the Panama Canal Zone. Additionally, the Board finds the March 2024 VA opinion concerning whether the Veteran's esophageal conditions are directly related to service to be insufficient for adjudication purposes. The examiner's rationale relied on the absence of "chronicity during service or after service" as a basis; however, this is an incorrect legal standard. The chronicity of care, or lack thereof, is neither the correct legal standard for a nexus opinion nor is it a sufficient basis to deny the existence of a nexus between the Veteran's esophageal conditions and his service. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Furthermore, the opinion contains an insufficient rationale because while the examiner stated that a post-service event, illness, or injury was a more likely etiology, the examiner did not explain what post-service event, illness, or injury more likely caused the Veteran's esophageal conditions. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can weigh, and a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision). The Board also finds the March 2024 VA opinion concerning whether the Veteran's esophageal conditions are related to his TERA in service to be insufficient for adjudication purposes because it contains an insufficient rationale. Id. The examiner concluded that the current medical literature did not support "toxic exposure" as a cause of hiatal hernias. However, the examiner did not specify which toxic exposures were considered when drawing that conclusion. Thus, it is unclear whether the examiner considered both the Veteran's conceded exposure to fuels, exhaust, and industrial solvents, as well as his asserted exposure to herbicide agents. Similarly, the Board finds the April 2024 VA opinions obtained for the Veteran's bilateral eye condition to be insufficient for adjudication purposes. First, the Board finds the direct service connection opinion insufficient because the examiner relied solely on the lack of a diagnosis of glaucoma until 1996 as substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (stating that "[w]hen assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence."). Furthermore, the opinion was not supported by a sufficient rationale. Next, the Board observes that the examiner provided the same rationale in support of the TERA opinion for the bilateral eye condition. Accordingly, the Board finds the TERA opinion insufficient for adjudication purposes for the same reasons. Finally, the Board finds the secondary service connection opinion provided concerning whether the Veteran's bilateral eye condition was aggravated by his service-connected diabetes to be insufficient because it was based on an incorrect legal standard. Specifically, while this appeal was pending, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issued Spicer v. McDonough, 61 F.4th 1360 (2023), holding that under 38 U.S.C. § 1110, secondary service connection is warranted where a nonservice-connected disability would have been less severe were it not for a service-connected disability. The Federal Circuit stated that the language of 38 U.S.C.§ 1110, which plainly requires compensation when a service-connected disease or injury is a "but-for" cause of a present-day disability, also applies to the natural progression of a condition not caused by a service-connected injury or disease, but that nonetheless would have been less severe were it not for the service-connected disability. Because the VA examiner focused on whether the Veteran's bilateral eye condition was aggravated beyond its natural progression by his diabetes, it was based on an incorrect legal standard. Furthermore, the examiner only considered whether the Veteran's bilateral eye condition was aggravated by his diabetes during his time in service, which is also an incorrect legal standard. Rather, secondary service connection may be warranted even if the Veteran's bilateral eye condition was aggravated by his service-connected diabetes post-service. Accordingly, remand is warranted to obtain a new secondary service connection opinion. The matters are REMANDED for the following actions: 1. Obtain any outstanding service personnel records and/or service treatment records from August 1964 to August 1967 indicating that the Veteran sought treatment for a rash while stationed at the Panama Canal Zone. 2. Then, take the appropriate steps, including contacting any and all appropriate resources, to attempt to verify the Veteran's claimed in-service exposure to herbicide agents during his service at the Panama Canal Zone, to include between August 1964 to August 1965 and August 1965 to August 1967. The request for research and the research conducted should include the Veteran's service at Fort Sherman, Fort Davis, and Rie Hata. Additionally, the RO should ensure that the research conducted includes review of the article, Agent Orange Tested in Panama in the 1960's and 70's, GLOBAL PESTICIDE CAMPAIGNER, Vol. 9, No. 2 (Aug. 1999). If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a formal finding outlining the steps taken and notify the Veteran of VA's inability to verify the in-service exposure. 3. After completing the above directives, obtain new opinions from an appropriately qualified clinician to determine the nature and etiology of the Veteran's esophageal conditions and bilateral eye condition. The claims file, including a copy of this remand, must be made available to and reviewed by the clinician. If an in-person examination is deemed necessary, one should be scheduled. After review of the record, the reviewing clinician must opine on: (a.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's esophageal conditions and bilateral eye condition were incurred in, or are otherwise related to, his active service; (b.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral eye condition was caused or aggravated by the service-connected diabetes mellitus II. The examiner is advised that aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. The examiner is also advised that 38 U.S.C. § 1110 allows for service connection of conditions that would have been less severe were it not for the service-connected disability even if the worsening of the condition occurs due to the natural progression of that condition. See Spicer v. McDonough, 61 F.4th 1360, 1364 (2023). The examiner must provide separate opinions and rationales to address secondary causation and secondary aggravation. Atencio v. O'Rourke, 30 Vet. App. 74 (2018). (c.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's asserted esophageal conditions and bilateral eye condition is due to the combined synergistic effect of the Veteran's total potential toxic exposure in service. In rendering these opinions, the examiner should consider and discuss the Veteran's conceded in-service exposures to fuels, exhaust, and industrial solvents. Additionally, the examiner should also consider and discuss the Veteran's asserted in-service exposure to herbicide agents. The reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. In forming the opinion, the examiner cannot rely on the absence of medical records corroborating disability. A complete rationale for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Corcoran, 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.