Citation Nr: 1805377 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 10-21 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure and as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for a skin disorder, to include as secondary to service-connected diabetes mellitus. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The Veteran had active service from March 1969 to September 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In January 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In April 2013 and November 2013, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during a period in which exposure to herbicides is presumed. 2. The Veteran has not been shown to have hypertension that manifested in or within one year thereafter or that is otherwise causally or etiologically related to his military service, to include exposure to herbicide therein, or that was caused or aggravated by his service-connected diabetes mellitus. 3. The Veteran has not been shown to have a skin disorder that manifested in or is otherwise causally or etiologically related to his military service, or that was caused or aggravated by his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. Hypertension was not incurred in active service, may not be presumed to have been so incurred, and is not proximately due to, the result of, or aggravated by his service-connected diabetes mellitus. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 2. A skin disorder was not incurred in active service and is not proximately due to, the result of, or aggravated by his service-connected diabetes mellitus. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The term "chronic disease," whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a). The Board notes that 38 C.F.R. § 3.303(b) applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to the current appeal, this list includes cardiovascular renal disease, such as hypertension. See 38 C.F.R. § 3.309(a). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations 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(d)(6)(i). Section 3.307(d)(6) also provides that 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, shall be presumed to have been exposed during such service to an 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(d)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam is not appropriate for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600, 42608 (June 24, 2002). When a claimed disability is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 Fed.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997) (applying principle to Agent Orange exposure). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). In this case, the Veteran has claimed that he currently has hypertension that is due to in-service herbicide exposure and/or as secondary his service-connected diabetes mellitus. In addition, he has claimed that he has a skin disorder that was caused by his service-connected diabetes mellitus. I. Hypertension As an initial matter, in this decision, all blood pressure measurements are noted in units of pressure in millimeters of mercury (mmHg). For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with diastolic blood pressure less than 90. In addition, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2017). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for hypertension. The Veteran's service treatment records do not document any complaints, treatment, or diagnosis of hypertension. His July 1968 pre-induction examination and his July 1970 separation examination did not note any relevant diagnoses or symptoms. In fact, his July 1970 separation examination found his heart and vascular system to be normal, and his blood pressure was recorded as 120/78. During the January 2013 hearing, the Veteran related that he did not recall having problems with high blood pressure during service, and he denied being treated for high blood pressure during service. A June 2013 VA examiner also found no objective evidence of hypertension in the service treatment records. She specifically noted that the Veteran's service treatment records did not contain blood pressure readings that met the criteria for hypertension. An August 2015 VA examiner further noted that the Veteran's service treatment records were silent as to complaints, treatment, diagnoses, or findings related to high blood pressure. The August 2015 VA examiner also noted that the Veteran's July 1970 separation examination neither indicated any cardiovascular or blood pressure issues nor related any abnormal physical examination findings. Thus, the examiner noted that the lack of findings did not suggest any ongoing or chronic hypertension or blood pressure condition at separation from service. There is also no evidence that the Veteran developed hypertension to a compensable degree within one year thereafter or that there was continuity of symptomatology. Indeed, the medical evidence shows that he was first diagnosed in January 2000. A VA primary care treatment note indicated that the Veteran was diagnosed with hypertension in January 2000. In an August 2009 statement, the Veteran stated that he was diagnosed with diabetes and hypertension when he was being examined to be processed into a drug treatment program in January 2000. He stated that he experienced symptoms prior to his diagnoses, but he did not know what was causing them. However, during the January 2013 hearing, the Veteran testified that he first noticed that his blood pressure was high when he was diagnosed with diabetes and hypertension in 2003. Moreover, the August 2015 VA examiner opined that it was unlikely that the Veteran's hypertension was directly related to his military service because there was no onset of hypertension within the first year after separation from service. Thus, both the medical and lay evidence show that hypertension did not manifest in service or for many years thereafter. The Veteran's service personnel records do show that he had service in Vietnam during the requisite time period. As such, he is presumed to have been exposed to herbicides, to include Agent Orange, during such service. However, hypertension is not on the list of diseases associated with herbicide exposure for purposes of the presumption. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). The Veteran is therefore not entitled to service connection for hypertension on a presumptive basis based on herbicide exposure. 38 C.F.R. § 3.309(e). Moreover, the August 2015 VA examiner opined that it was not at least as likely as not that the Veteran's hypertension was related to his military service, to include any herbicide exposure therein. The examiner noted that the Veterans and Agent Orange Update 2012 indicates that there is inadequate or insufficient evidence to determine an association between essential hypertension and Agent Orange exposure. There is no medical opinion otherwise relating the Veteran's current hypertension to his herbicide exposure in service. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's hypertension is related to his military service, including herbicide exposure. Thus, the remaining question is whether the Veteran's service-connected diabetes mellitus has caused or aggravated his current hypertension. During an April 2007 VA hypertension examination, the examiner diagnosed the Veteran with essential hypertension. The Veteran indicated that he had not had any problems with elevated blood pressure and that his blood pressure had been stable since the onset of his hypertension in 2000. There was no evidence of renal dysfunction or cardiovascular disease. In an April 2007 VA diabetes mellitus examination report, the examiner noted that the Veteran had essential hypertension secondary to diabetes. However, no rationale was provided. The Veteran was afforded another VA hypertension examination in September 2009 during which the examiner noted that the Veteran had been diagnosed with hypertension in January 2000. In addition to poorly-controlled blood pressure, the examiner observed that the Veteran was also diagnosed with poorly-controlled diabetes at that time. After an evaluation and review of the Veteran's medical records, the examiner indicated that the Veteran's hypertension was less likely as not caused by or a result of his service-connected diabetes mellitus. The examiner explained that the diabetes would have to have preceded the hypertension for the diabetes to have caused the hypertension and noted that, in this case, initial documentation shows that both disorders were diagnosed at the same time. He also indicated that the Veteran had confirmed that his diabetes and hypertension were diagnosed at the same time. The examiner further explained that, while the Veteran has shown poor control of his diabetes over the years, his hypertension has been well-controlled according to a 2009 echocardiogram report. The echocardiogram revealed an ejection fraction of 65 to 70 percent with normal left ventricular wall motion and thickness. The interpreting physician noted that the echocardiogram showed findings consistent with chronic systemic hypertension. The Veteran was provided an additional VA hypertension examination in June 2013. The examiner noted that there was an onset date of 2000. She also noted that a May 2013 echocardiogram showed an ejection fraction of 60 percent with normal left ventricular wall motion and thickness. The examiner opined that the Veteran's hypertension was not caused or aggravated by his service-connected diabetes mellitus. She indicated that the Veteran did not have signs of diabetic kidney disease. In an August 2015 VA medical opinion, the examiner opined that it was not at least as likely as not that the Veteran's hypertension was either caused by or aggravated by his service-connected diabetes mellitus. The examiner indicated that it was unlikely that the Veteran's diabetes caused his hypertension because they were diagnosed at approximately the same time. He noted that the exact cause of primary hypertension is unknown; however, factors and conditions that may increase the risk of developing hypertension include increasing age, obesity, sedentary lifestyle, smoking, increased salt intake, heavy alcohol use, smoking, gender, family history, and ethnicity. He stated that diabetes itself is not a primary cause of hypertension and noted that the Veteran had other risk factors for hypertension. The examiner further related that a July 2014 VA examination indicated no diabetic nephropathy diagnosis and a normal renal lab without microalbuminuria; June 2013 and October 2014 diabetic teleretinal imaging indicated no diabetes-related retinopathy; and an October 2014 VA laboratory report indicated a normal estimated glomerular filtration rate (eGFR) and serum creatinine. He stated that testing revealed no significant end-organ damage related to hypertension; therefore, it was unlikely that diabetes aggravated his hypertension to any degree. He also noted that patients without diabetes-related retinopathy are unlikely to have diabetes-related nephropathy, and without diabetes-related nephropathy, it is also unlikely that diabetes caused or aggravated the Veteran's hypertension. The Board notes that the Veteran has claimed that that his hypertension is due to his herbicide exposure in service and/or is secondary to his service-connected diabetes mellitus. He is competent in this case to report his experience and symptoms since service, and as stated above, his herbicide exposure is presumed. However, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of his hypertension. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis and etiology of his hypertension, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The question of etiology in this case goes beyond a simple and immediately observable cause-and-effect relationship, particularly in light of the delayed onset of the disorder and the other risk factors that have been identified by the VA examiners. Moreover, even assuming the Veteran's lay assertions regarding etiology were competent, the Board nevertheless finds the September 2009, June 2013, and August 2015 VA medical opinions to be more probative, as they are based on a review of the record, examination, and the examiners' own medical expertise, training, and knowledge. The examiners supported their conclusions with rationale that considered medical literature and other factors. The Board does recognize that, in an April 2007 VA diabetes mellitus examination report, the examiner noted that the Veteran had essential hypertension secondary to diabetes. However, the law is clear that it is the Board's duty to assess the credibility and probative value of evidence, and provided that it offers an adequate statement of reasons and bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The Board, of course, is not free to reject medical evidence on the basis of its own unsubstantiated medical conclusions. Flash v. Brown, 8 Vet. App. 332 (1995). The Board finds that, after weighing the evidence, the August 2015 VA examiner's opinion is the most probative opinion of record. That VA examiner provided a medical opinion supported by rationale and a thorough discussion of the Veteran's medical history. In contrast, the April 2007 VA examiner provided conclusory statement without any supporting rationale or discussion of the medical records. As such, the Board finds that the April 2007 VA examiner has provided a bare conclusion without supporting rationale, and as such, this conclusion is not entitled to much probative weight. The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). See also Knightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record and conclusions of medical professionals which are not accompanied by a factual predicate in the record are not probative medical opinions). In this case, and based on the foregoing, the Board attaches the greatest probative weight to the opinion of the August 2015 VA examiner who provided a thorough rationale supported by the record. For these reasons, the Board finds that the Veteran's current hypertension is not secondary to his service-connected diabetes mellitus. Based on the foregoing, the Board concludes that the weight of the evidence is against a finding of entitlement to service connection for hypertension. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Skin Disorder In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a skin disorder. The Veteran's service treatment records do not document any complaints, treatment, or diagnosis of a skin disorder. His July 1968 pre-induction examination and his July 1970 separation examination did not note any relevant diagnoses or symptoms. In fact, his July 1970 separation examination found his skin to be normal. During a November 2010 VA skin examination, the Veteran reported that he developed red pustules on his back and bilateral lower extremities in 2004 while he was incarcerated. During the January 2013 hearing, the Veteran reported that he experienced a skin disorder after service. He stated that he developed a skin disorder around the time or shortly after his diabetes diagnosis in 2000. An August 2015 VA examiner also noted that the Veteran's pre-induction examination, service treatment records, and separation examination did not indicate any skin issues, complaints, diagnoses, or treatment to suggest an ongoing or chronic skin condition since his separation from service. Private treatment records from a correctional facility dated from 2003 to 2006 indicate that the Veteran was treated for rashes on his buttocks and penis, and a December 2004 correctional facility note documents that the Veteran was treated for an infected insect bite on his posterior neck. An October 2006 correctional facility note also shows that the Veteran was treated for foot fungus. However, correctional facility notes dated in October 2004, March 2005, July 2005, and October 2005 indicated that the Veteran had no skin complaints. An April 2007 VA general medical examination revealed no skin symptoms or abnormal physical examination findings related to the Veteran's skin. During a September 2009 VA examination, the Veteran reported that he had a diagnosis of balanoposthitis in 1982. During a November 2010 VA skin examination, the Veteran reported that he developed red pustules on his back and bilateral lower extremities in 2004 while he was incarcerated. He stated that the pustules resolved when he was released from prison in 2006. He denied any episodes since 2006. A June 2013 VA examiner noted that there was no evidence in the claims file that the Veteran was treated for a skin condition. The Veteran was unable to provide the examiner with the name of a skin disorder, and he had no type of skin condition on examination. The August 2015 VA examiner opined that it was unlikely that there was a skin condition causally related to or caused by military service. There is no medical opinion otherwise relating any skin disorder to his military service. For these reasons, the Board finds that the evidence weighs against a finding that the claimed skin disorder manifested in or is related to his military service. Thus, the remaining question is whether the service-connected diabetes mellitus has caused or aggravated the claimed skin disorder. The August 2015 VA examiner opined that it was not at least as likely as not that the Veteran's post-military skin conditions were etiologically related to or aggravated by his service-connected diabetes mellitus. The examiner explained that skin infections, abscesses, or furuncles are acute bacterial skin infections usually involving a hair follicle that typically involve the axilla, groin, or trunk. He stated that the confluence of multiple furuncles may lead to the condition furunculosis, which may be related to poor hygiene, as the record indicates, and is more common in institutionalized or incarcerated populations. The examiner opined that the etiology of the post-military rashes appeared to be bacterial or fungal; therefore, the etiology is not related to diabetes. The examiner also noted that the more recent VA examinations do not indicate an ongoing skin condition, which suggests that a skin condition has not been aggravated by the Veteran's service-connected diabetes mellitus. The Board notes that the Veteran has claimed that that his skin condition is due to his service and/or is secondary to his service-connected diabetes mellitus. He is competent in this case to report his experience and symptoms since service. However, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of his claimed skin disorder. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis and etiology of his hypertension, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Moreover, even assuming the Veteran's lay assertions regarding etiology were competent, the Board nevertheless finds the August 2015 VA medical opinion to be more probative, as it is based on a review of the record, examination, and the examiner's own medical expertise, training, and knowledge. The examiner supported his conclusion with a rationale that considered medical literature and other factors. For these reasons, the Board finds that the Veteran's current skin disorder is not secondary to his service-connected diabetes mellitus. Based on the foregoing, the Board concludes that the weight of the evidence is against a finding of entitlement to service connection for a skin disorder. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension is denied. Service connection for a skin disorder is denied. REMAND The Board finds that a remand is necessary in this case in order to obtain an adequate VA examination in connection with the Veteran's TDIU claim to address the combined effect of his service-connected disabilities on his employability. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his major depression, type II diabetes mellitus, and peripheral neuropathy of the bilateral upper and lower extremities. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. The AOJ should schedule the Veteran for a VA examination by an appropriate examiner. The ultimate purpose of the examination is to ascertain the combined impact of the Veteran's service-connected disabilities and resulting occupational impairment. If appropriate, any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should elicit and set forth the pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and industrial capacity. The report should also indicate if there is any form of employment that the Veteran could perform, and if so, what type. A written copy of the report should be associated with the claims file. 3. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs