Citation Nr: 1336599 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 06-00 273A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to exposure to herbicides. 2. Entitlement to service connection for a nerve disorder, claimed as peripheral neuropathy, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to March 1969. This case comes before the Board of Veterans Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which in pertinent part denied the Veteran's claims for service connection for hypertension and peripheral neuropathy, to include as due to exposure to herbicides. The Veteran and his spouse testified at a November 2008 hearing at the RO before a Veterans Law Judge (VLJ). The Veteran was informed in a February 2013 letter from the Board that the VLJ who conducted the November 2008 hearing was no longer employed at the Board and that he had the right to a new hearing before a VLJ who would decide his claims. In a February 2013 response, the Veteran waived his right to a new hearing. When this case was most recently before the Board in April 2013, it was remanded for additional evidentiary development; it has since been returned for further appellate action. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of entitlement to service connection for a nerve disorder 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. FINDING OF FACT Hypertension was not manifest in service or within the first post-service year; hypertension is otherwise unrelated to service or exposure to herbicides. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 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). On March 3, 2006, the U. S. Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in December 2004 discussed the evidence necessary to support a claim for service connection. The Veteran was invited to submit or identify evidence. In a supplemental statement of the case in August 2012, he was advised of the manner in which VA determines disability ratings and effective dates. Subsequent letters advised the Veteran of the status of his claim. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect VA's duty to assist, the Board notes that identified treatment records have been associated with the claims file. That is, in response to the Board's most recent remand, an April 2013 VA treatment record was added to the paperless process system. The Veteran was also afforded VA examinations. The Board finds that the examinations were adequate in that the examining physicians reviewed the record, interviewed the Veteran, and performed appropriate examinations prior to providing conclusions. The examinations and addendum reports of record are thorough and consistent with contemporaneous treatment records, and adequately respond to the questions posed in this appeal. As noted above, the Veteran also was afforded a hearing before a VLJ during which he presented oral argument in support of his service connection claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) (2013) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issue on appeal during the hearing, and the claim was subsequently remanded three times to address the element(s) of the claim that were lacking to substantiate the claim for benefits. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c) (2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2). For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Legal Criteria and Analysis Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (wartime service); 38 C.F.R. § 3.303. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service incurrence or aggravation of cardiovascular renal disease, including hypertension, may be presumed to have been incurred or aggravated if it is manifested to a compensable degree within a year of the Veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 38 U.S.C.A. § 1116(a) (West 2002) provides presumptive service connection on the basis of herbicide exposure for specified diseases manifested to a degree of 10 percent within a specified period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Whenever the Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease for the purposes of this section. 38 U.S.C.A. § 1116(b) (1). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). However, hypertension is not among the presumptive conditions noted in 38 C.F.R. § 3.309(e). In fact, the Secretary has determined that a presumption of service connection for hypertension is not warranted. 77 Fed. Reg. 81332 (August 10, 2012). This finding was based upon extensive evaluations conducted by National Academy of Sciences (NAS), as summarized in its report "Veterans and Agent Orange: Update 2010" (Update 2010). The NAS is mandated, to the extent possible, to determine (1) whether there is a statistical association between the suspect diseases and herbicide exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; (2) the increased risk of disease among individuals exposed to herbicides during service in the Republic of Vietnam during the Vietnam era; and (3) whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the health outcome. According to the NAS, the current sound medical and scientific evidence does not indicate a positive association between exposure of humans to herbicides and the development of hypertension. Thus, such disability is not subject to service connection on a presumptive basis. Notwithstanding the provisions of §§ 3.307, 3.309, if a claim fails to satisfy the criteria for service connection on a presumptive basis due to herbicide exposure, this fact does not preclude an appellant from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). The Veteran filed the instant claim for service connection in December 2004. The Board notes that the service treatment records contain no diagnosis, complaint, or abnormal finding suggestive of hypertension and such is not shown until years following separation. The Veteran has not argued otherwise. As noted above, the Veteran provided testimony in November 2008 that he did not recall having problems with blood pressure in service. The Veteran was afforded a VA examination in June 2011 in which the examiner stated, in pertinent part, that there was no evidence in the Veteran's service medical records that he had hypertension during his military career. The examiner opined that it was not likely that the hypertension began in the service or was caused by exposure to any substances while on active duty. The rationale for this determination was based upon the factual material contained in his claims files, service medical records, the complete physical examination done on the Veteran, and his medical records and testing which was recorded in the VA System. An addendum was submitted in May 2012 in which the examiner stated that careful re-review of claims files and VA medical records did not change the opinion related to hypertension; the Veteran did not have documented Agent Orange exposure and hypertension was not a complication or result of exposure to Agent Orange or other toxins. The Veteran was afforded a VA examination in May 2013 in which the examiner diagnosed hypertension and opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran reported having intermittent episodes during medical encounters were physicians had noted that his blood pressure was elevated; however, he was not formally diagnosed with hypertension until December 2009. In addition, he had no "CHF, CAD, or CVA" which would indicate long term complications of hypertension. Therefore, it was less likely than not that the Veteran had untreated hypertension since his military service. Having carefully reviewed the record, the Board has determined that service connection is not warranted for hypertension. As noted above, the Veteran does not maintain that his hypertension manifested during service or within the first post-service year. In that regard, while the evidence reveals that the Veteran currently suffers from hypertension, the competent, probative evidence of record does not etiologically link this condition to his service, to include any exposure to herbicides. In assigning high probative value to the VA examiners' opinions, the Board notes that they had the claims file for review (paper or electronically); specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted complete examinations. There is no indication that these VA physicians were not fully aware of the Veteran's past medical history or that they misstated any relevant fact. Therefore, the Board finds the VA examiners' opinions to be of great probative value. The Board has considered the Veteran's lay assertion that his hypertension is the result of service or herbicide exposure in service. Certainly, he is competent to report sensory or observed symptoms, and his statements in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Generally, however, a lay person is not competent to diagnose most medical disorders or render an opinion as to the cause or etiology of any current disorder because he or she does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). In this instance, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as diagnosing hypertension and linking such to in-service herbicide exposure or other incident of service. Given the Veteran's lack of demonstrated medical expertise, his statements regarding any such diagnosis or link are much less probative than the findings of the competent VA health care specialists discussed above. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). For these reasons, the Board concludes that the claim of entitlement to service connection for hypertension must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for hypertension is denied. REMAND In December 2004 the Veteran filed the instant claim for numbness and tingling in both hands and feet. The Veteran's most recent VA examination was conducted in May 2013 in which the VA examiner stated, in pertinent part, that although the Veteran had many subjective complaints of peripheral neuropathy, there were no objective findings of a peripheral neuropathy on the current examination and in the recent past; however, there was electrodiagnostic evidence for left demyelinating ulnar neuropathy at the elbow and right demyelinating median sensorimotor mononeuropathy at the wrist (right carpal tunnel syndrome) in 2005, but these complaints had not been chronic or continuous per the review of his medical records from 2005 to present. The VA examiner opined that it was less likely than not that the Veteran had a peripheral neuropathy or other neurologic manifestations; since it was unlikely that he had a peripheral neuropathy, it was not possible to speculate as to the cause of a peripheral neuropathy, such as an herbicide like Agent Orange. Because the evidence developed during the processing of this claim indicates that the symptoms for which the Veteran is seeking VA benefits may be caused by a nerve disability other than peripheral neuropathy, the issue of entitlement to service connection for a nerve disorder, claimed as peripheral neuropathy, is part of the Veteran's appeal. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79 (2009). This issue was therefore amended as shown on the title page. Moreover, the Board notes that the Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, the May 2013 VA opinion is inadequate for adjudication purposes and remand for another VA examination is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development of the issue of entitlement to service connection for a nerve disability other than peripheral neuropathy, including the provision of the notice required under 38 U.S.C. § 5103(a) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(b) (2013). 2. The RO or the AMC should undertake appropriate development to obtain a copy of any outstanding, pertinent medical records. 3. Then, the Veteran's claims file should be directed to the same VA examiner who conducted the May 2013 VA examination for a review of the claims file and an addendum opinion regarding a broader interpretation of the Veteran's claim for service connection for a nerve disability (to include peripheral neuropathy, left demyelinating ulnar neuropathy at the elbow, and right demyelinating median sensorimotor mononeuropathy at the wrist). The claims folders must be made available to and reviewed by the examiner. If the examiner finds that an additional examination is deemed necessary in order to expand the prior opinion, then such an examination including any indicated studies should be performed. Based on review of the files and examination of the Veteran, the examiner should state a medical opinion as to whether it is at least as likely as not (50 percent or better probability) with respect to each nerve disability present at any time during the pendency of this claim that the disability originated during the period of active service or is otherwise etiologically related to active service. A complete rationale for all opinions expressed must be provided. If the VA examiner who conducted the May 2013 VA examination is no longer available, then the Veteran should be scheduled for an appropriate examination with another VA medical provider skilled in the diagnosis and treatment of nerve disorders. Following such examination of the Veteran and a review of the claims file, the examiner should state a medical opinion as to whether it is at least as likely as not (50 percent or better probability) with respect to each nerve disability present at any time during the pendency of this claim that the disability originated during the period of active service or is otherwise etiologically related to active service. A complete rationale for all opinions expressed must be provided. 4. The RO or the AMC also should undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the issue remaining on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folders are returned to the Board for further appellate action, if otherwise in order. The appellant 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. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs