Citation Nr: 1305793 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 09-33 482 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure and secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for a skin disorder of the hands and feet, claimed as due to herbicide exposure. 3. Entitlement to service connection for peripheral neuropathy of the upper extremities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from June 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 decision by the RO which, in part, denied the benefits sought on appeal. The issue of service connection for a skin disorder of the hands and feet is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's hypertension was not present in service or until many years thereafter, and there is no competent evidence that hypertension is causally or etiologically related to service, to include his presumed herbicide exposure, or causally related or otherwise aggravated by his service-connected diabetes mellitus. 2. The Veteran is not shown to have had acute or subacute peripheral neuropathy that appeared within weeks or months of exposure to an herbicide agent and resolved within 2 years of the date of onset. 3. Peripheral neuropathy of the upper extremities was not present in service or until many years thereafter, and there is no competent evidence that any current peripheral neuropathy is causally or etiologically related to service, to include his presumed herbicide exposure. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service, may not be presumed to have been incurred or aggravated therein, and is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 2. Peripheral neuropathy of the upper extremities was not incurred in or aggravated by service, and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in January 2008. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs) and all VA and private medical records have been obtained and associated with the claims file. The Board also reviewed the Veteran's VA electronic medical records. The Veteran was examined by VA during the pendency of this appeal, and was afforded an opportunity for a personal hearing, but declined. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issues on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Accordingly, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Service Connection: In General Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Service connection also may be granted for a disability that is proximately due to or the result of a service-connected condition. When service connection is established for a secondary condition, the secondary condition is considered as part of the original condition. 38 C.F.R. § 3.310(a) (2012). When aggravation of a disease or injury for which service connection has not been granted is proximately due to, or the result of, a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946 and hypertension or an organic disease of the nervous system (i.e., peripheral neuropathy) manifests to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The applicable criteria provide that a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than ones listed in 38 C.F.R. § 3.309(a), however, will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116 (West 2002); 38 C.F.R. § 3.307(a) (2012). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease listed at section 3.309(e) shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2012). Acute and sub-acute peripheral neuropathy is among the diseases listed in 38 C.F.R. § 3.309(e). However, Note 2 of 38 C.F.R. § 3.309(e) states that for purposes of that section, the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii) (2012). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Id. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). Hypertension & Peripheral Neuropathy The Veteran contends that service connection should be established for hypertension and peripheral neuropathy of the upper extremities based on exposure to herbicides during his service in Vietnam. The Veteran does not claim, nor do the service treatment records (STRs) show any treatment, abnormalities or diagnosis referable to hypertension or peripheral neuropathy in service or until many years thereafter. Regarding his hypertension, although the Veteran did not specifically allege, the RO interpreted his claim to include hypertension secondary to his service-connected diabetes mellitus. Therefore, the Board will also consider the Veteran's claim for hypertension on a secondary basis. The Veteran's STRs include two Reports of Medical History (RMH) for separation from service which were executed and signed by the Veteran on the same date, March 15, 1969. On one report, the Veteran specifically denied any history of high or low blood pressure, chest pains or heart problems, shortness of breath, swollen or painful joints, lameness, neuritis, paralysis, or inability to perform certain movements or assume positions. On the second RHM, the Veteran reported a positive history for high or low blood pressure and pain or pressure in his chest. Most of the remaining medical history questions were left blank on the second RHM. In any event, on examination at that time, the Veteran's heart, upper and lower extremities, musculoskeletal and neurological systems were within normal limits. The Veteran's blood pressure was 118/80, and a chest x-ray study was negative. Similarly, the Veteran made no mention of any cardiovascular, neurological or systemic problems on his original application for VA compensation benefits, received in July 1969, and no pertinent cardiovascular or neurological abnormalities were noted on VA examination in September 1969. At that time, the Veteran's blood pressure was 120/82. Private medical records showed that the Veteran was diagnosed with hypertension in 1986, that he had borderline diabetes beginning around 1991, and was diagnosed with diabetes mellitus around January 1997. (See January 1989 and 1997 private medical reports). With regard to the Veteran's claim for hypertension based on presumptive diseases due to herbicide exposure, the law is clear that only those disabilities listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service. Hypertension is not one of the listed diseases for which presumptive service connection may be granted. Moreover, based on studies by the National Academy of Sciences (NAS), including the "Veterans and Agent Orange: Update 2008" (Update 2008), issued in July 2009, the Secretary of Veterans Affairs determined that a presumption of service connection for hypertension due to exposure to herbicides in the Republic of Vietnam is not warranted. See 75 Fed. Reg. 81332 (December 27, 2010). According, there is no basis for a favorable disposition of the Veteran's claim of service connection for hypertension due to herbicide exposure. McCartt v. West, 12 Vet. App. 164 (1999); 38 C.F.R. §§ 3.307, 3.309. As noted above, acute or subacute peripheral neuropathy is defined by VA regulations as transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolved within two years of the date of onset. See 38 C.F.R. § 3.309(e), Note 2. In this case, there are no objective findings or medical evidence which demonstrate or even suggests that the Veteran has or had any signs or symptoms of peripheral neuropathy in service, within two years of discharge from service or until several decades after his discharge from service. Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'd Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). In this regard, the Veteran's STRs are negative for any treatment, abnormalities, or diagnosis referable to hypertension or peripheral neuropathy in service or until at least 17 years or more after discharge from service. Moreover, the Veteran's reported history of neuropathy of the upper extremities was shown to be due to a cervical spine disability, i.e., status post anterior cervical diskectomy and fusion, and not associated with any acute or subacute peripheral neuropathy. (See February 2008 VA examination report). As the Veteran was not shown to have hypertension or an organic disease of the nervous system (i.e., peripheral neuropathy) in service or within one year of service separation, there is no basis to establish service connection on a direct basis. Concerning the claim of secondary service connection for hypertension, the Veteran was examined by VA in February 2008, for the express purpose of obtaining an opinion as to whether his current hypertension was related, in any fashion, to his service-connected diabetes. The examiner indicated that the claims file was reviewed and included a description of the Veteran's complaints and medical history. The examiner noted that the Veteran's hypertension was diagnosed in 1986, and that his diabetes mellitus was first shown in 1991. The examiner indicated that the Veteran's hypertension predated the onset of his diabetes, and opined that his hypertension was not due to or aggravated by his diabetes. In this case, the Board finds the February 2008 VA opinion persuasive, as it was based on a thorough review of the claims file and provided a rational explanation for concluding that the Veteran's hypertension was not related to his service or to his service-connected diabetes. See Wray v. Brown, 7 Vet. App. 488, 493 (1995). Furthermore, the Veteran has not presented any competent medical evidence to dispute that opinion. Thus, the most probative evidence of record consists of the unfavorable VA opinion. While the Veteran believes that his hypertension is secondary to his diabetes, he has not presented any competent evidence to support his assertions. Secondary service connection requires evidence of a current disability that is shown to be proximately due to, aggravated by, or the result of a service-connected condition. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). While the Veteran is competent to provide an opinion on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, hypertension, falls outside the realm of common knowledge of a lay person. That is, the issue does not involve a simple diagnosis. Therefore, the Veteran is not competent to provide more than simple medical observations. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) see also Barr v. Nicholson, 21 Vet. App. 303 (2007). As there is no competent, credible evidence of record suggesting a relationship between the Veteran's hypertension and a service-connected disability, no evidence of hypertension or peripheral neuropathy within one year of discharge from service, the Board finds no basis for a favorable disposition of the Veteran's claim. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issue on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for hypertension is denied. Service connection for peripheral neuropathy of the upper extremities is denied. REMAND Concerning the remaining issue on appeal, the Veteran contends that he has had chronic skin problems of the hands and feet, manifested by itching and peeling since his service in Vietnam, and believes that it is due to his exposure to herbicide agents. Private medical reports of record showed that the Veteran was treated for skin problems involving his feet and left hand on several occasions since January 1989, which is the earliest treatment note of record, other than a September 1969 VA examination report. The assessments included tinea pedis and onychomycosis. Given the Veteran's reported history of chronic skin problems since service and alleged treatment since his discharge from service, the Board finds that there is sufficient evidence to warrant a VA examination to determine the nature and etiology of any current skin disorder of the hands and feet. Part of VA's duty to assist under the Veterans Claims Assistance Act of 2000 (VCAA) is to provide the Veteran with an examination if, as in this case, there is competent evidence of a current disability, and the evidence indicates that the current disability may be related to an event in service or to a service-connected disability. 38 C.F.R. § 3.159(c)(4) (2012). As the Veteran has never been examined by VA to determine the nature and etiology of his alleged skin disorder of the hands and feet, further development is necessary prior to appellate review. In light of the discussion above and to ensure full compliance with due process requirements, the claim is REMANDED to the AMC for the following action: 1. The AMC should take appropriate steps to obtain outstanding medical records from all healthcare providers who have treated the Veteran for any skin problems of the hands and feet since his discharge from service, and associated them with the claims file. 2. The Veteran should be afforded a VA examination to determine the nature and etiology of any identified skin disorder of the hands and feet. All indicated tests and studies are to be performed. The claims folder must be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. The examiner should render an opinion as to whether it is at least as likely as not that any identified skin disorder of the hands and feet was present in service or is otherwise related to service, including the Veteran's presumed herbicide exposure? A detailed rationale is requested for any opinion rendered. The opinion should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. If the examiner is unable to render an opinion without resorting to speculation, this should be noted and explained. In so doing, the examiner should identify any evidence required in order to render a non-speculative opinion. Thereafter, attempt to obtain any identified evidence and return the claims file to the examiner for completion of the opinion. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 3. After the requested development has been completed, the AMC should readjudicate the merits of the claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs