Citation Nr: 18143263 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 05-03 779 DATE: October 18, 2018 ORDER Entitlement to service connection for hypertension, to include as a result of exposure to Agent Orange and as secondary to diabetes mellitus type 2, is denied. REMANDED Entitlement to service connection for a back disorder, to include as secondary to an ankle disorder, is remanded. Entitlement to service connection for a left ankle disorder is remanded. Entitlement to service connection for a right ankle disorder, to include as secondary to a left ankle disorder, is remanded. Entitlement to service connection for tuberculosis is remanded. Entitlement to service connection for a skin disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and adjustment disorder with depressed mood, is remanded. Entitlement to a rating in excess of 20 percent for diabetes mellitus type 2 is remanded. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left upper extremity is remanded. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right upper extremity is remanded. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is remanded. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is remanded. Entitlement to an effective date prior to January 18, 2011, for peripheral neuropathy of the left upper extremity is remanded. Entitlement to an effective date prior to January 18, 2011, for peripheral neuropathy of the right upper extremity is remanded. Entitlement to an effective date prior to January 18, 2011, for peripheral neuropathy of the left lower extremity is remanded. Entitlement to an effective date prior to January 18, 2011, for peripheral neuropathy of the right lower extremity is remanded. Entitlement to an effective date prior to March 14, 2006, for diabetes mellitus type 2 is remanded. Entitlement to a total disability rating due to individual unemployability is remanded. FINDING OF FACT The Veteran’s hypertension is neither proximately due to nor aggravated beyond its natural progression by diabetes mellitus type 2, and is not otherwise related to an in-service injury, event, or disease, to include as a result of exposure to Agent Orange. CONCLUSION OF LAW The criteria for service connection for hypertension, on a direct basis or secondary to diabetes mellitus type 2, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1969 to August 1971, including service in the Republic of Vietnam from January 1971 to August 1971. In a March 28, 2016, Report of Contact, the Veteran indicated that he would not attend his April 2016 hearing. The Veteran’s representative formally withdrew the hearing request in a letter received on April 2, 2016. In June 2007, the Board denied the Veteran’s claims of entitlement to service connection for a right ankle disorder and a low back disorder. The Board also denied the Veteran’s appeals to reopen claims of entitlement ot service connection for a left ankle disability and tuberculosis. In October 2008, by a Joint Motion for Remand, the United States Court of Appeals for Veterans Claims (Court) vacated and remanded the June 2007 decision due to notice deficiencies. In September 2016, the Board reopened the Veteran’s claims of entitlement to service connection for a left ankle disorder and tuberculosis. Also in that decision, the Board remanded the Veteran’s remaining claims for additional examinations and development. Vacatur The Board may vacate an appellate decision at any time upon request of the Veteran or their representative, or on the Board’s own motion, when a Veteran has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R § 20.904. On September 12, 2018, the Board issued a decision on the above claims. Attorney correspondence had been submitted on September 10, 2018, but was not scanned into VBMS and associated with the Veteran’s claims file until after the September 2018 decision issued. As a result, that evidence was not considered in the September 2018 decision. Consideration of the Veteran’s claim without review of this evidence was a denial of due process. Accordingly, the April 2018 Board decision is vacated with respect to all issues except for the Board’s grant of an earlier effective date of March 14, 2006, for diabetes mellitus type 2. The Board has therefore re-characterized the remaining claim as entitlement to an effective date prior to March 14, 2006, for diabetes mellitus type 2. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. 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). Service connection may also be granted on a secondary basis for a disability if it 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). An increase in severity of a nonservice-connected disease or injury shall not be service-connected if it is due to the natural progression of the nonservice-connected condition. Id. at 447–48. Service connection on a secondary basis may not be granted without medical evidence of a current disability and evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512–14 (1998). 1. Entitlement to service connection for hypertension, to include as a result of exposure to Agent Orange and as secondary to diabetes mellitus type 2 The Veteran argues that his current hypertension is the result of in-service exposure to Agent Orange or is secondary to service-connected diabetes mellitus type 2. The first element of service connection is satisfied, in that hypertension is indicated in VA examinations dated January 2011 and March 2017. The second element of direct service connection is satisfied, in that the Veteran argues that his hypertension is the result of in-service exposure to Agent Orange. Unfortunately, the nexus element is not satisfied. The examiner first notes that there is no medical evidence of hypertension in the Veteran’s service treatment records and that the Veteran was not diagnosed with hypertension until 2002, which is over 30 years after discharge from service. For these reasons, the examiner concludes that the Veteran’s hypertension is less likely than not directly related to service. The examiner also opines that the Veteran’s hypertension is less likely than not related to exposure to Agent Orange. The examiner cites a major study that “suggests an association between exposure to herbicides and [hypertension,” but notes that the study’s ultimate conclusion is that “a firm conclusion is limited because chance, bias, and confounding [sic] could not be ruled out with confidence.” According to the examiner, that study’s conclusion “does not meet the standards of medical practice that allows the re-classification of Agent Orange as an accepted medical risk factor for the development of [hypertension].” Rather, the Veteran’s age and race “are the more likely contributors (over 50% or greater probability)” to the Veteran’s hypertension. The examiner also opines that the Veteran’s hypertension is less likely than not related to diabetes. The main basis for this conclusion is that the Veteran’s diagnosis of hypertension predated his diagnosis for diabetes. Also, since the Veteran’s “blood pressures are currently managed with a mid-range dose of a single medication and have not required additional medications, a permanent worsening or progression of [hypertension] due to [the Veteran’s] diabetes cannot be substantiated by the evidence. These medical opinions are probative because they are based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez, 22 Vet. App. at 301–02. Because the weight of the evidence is against the existence of a nexus between hypertension and service, Agent Orange exposure, or diabetes, the Veteran’s claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a back disorder, to include as secondary to an ankle disorder, is remanded. The May 2012 VA back examination concludes that the Veteran’s back disorder is less likely than not related to service. That conclusion was based in part on the idea “[t]here is no evidence of any complaints or treatment for a low back condition in the [service medical records].” An addendum opinion and examination are required that address evidence of in-service back pain and post-service back pain. A November 1969 service treatment record (received 10/15/15, page 25 of 29) indicates “Pain in Back.” Consistent with this, in a February 2017 statement, the Veteran states that “[i]n 1969 [he] injured [his] back in [Fort] Leonard Wood” in Missouri. A July 1970 service treatment record (received 10/15/15, page 3 of 29) indicates “back pain in lumbar area of spine.” On remand, this evidence should be addressed. 2. Entitlement to service connection for a left ankle disorder is remanded. The Veteran argues that his current ankle disorder is the result of a June 1971 jeep accident that resulted in his being medevacked for treatment. See April 2005 DRO hearing transcript at 2–3. An April 1971 service treatment record (received 10/15/15, page 21 of 29) indicates a sprained left ankle while playing basketball. July 1971 service treatment records (received 10/15/15, page 19 of 29) also indicate a sprained left ankle while playing basketball. The Veteran has stated that he continued to experience ankle pain after service. The May 2012 VA ankle examination does not specifically address the Veteran’s reports of ankle pain following service. An addendum opinion is required. 3. Entitlement to service connection for a right ankle disorder, to include as secondary to a left ankle disorder, is remanded. The Veteran argues that his right ankle disorder is the result of favoring his left ankle. See September 2018 correspondence. This claim is inextricably intertwined with the left ankle claim remanded for further development. Accordingly, the Board will defer any decision with respect to this claim pending the completion of the requested development. 4. Entitlement to service connection for tuberculosis is remanded. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81–86 (2006). See also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). These elements are satisfied with regard to the claim of entitlement to service connection for tuberculosis. Regarding the first element, a May 2005 VA medical record (received 10/25/05, page 5 of 13) indicates a positive skin test for tuberculosis. Regarding the second element, in a March 1974 VA benefits application, the Veteran indicates treatment for tuberculosis in 1969 at Fort Polk, Louisiana. Military personnel records (received 10/15/15, page 7 of 7) indicate presence in Fort Polk, Louisiana for at least August 1969 and September 1969. In September 2003 correspondence, the Veteran indicates that he tested positive for tuberculosis in December 1969, and during his April 2005 DRO hearing, the Veteran stated that he tested positive for tuberculosis in 1969 when he was stationed at Fort Leonard Wood, Missouri for AIT training. Thus, regarding the third and fourth elements, there is an indication that the Veteran’s current tuberculosis could be related to an in-service diagnosis of tuberculosis at Fort Polk, Louisiana. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. 5. Entitlement to service connection for a skin disorder is remanded. The Veteran has filed a claim of entitlement to service connection “for a rash of undetermined origin which began while serving in Vietnam.” See April 2008 statement in support of claim. An April 1970 service treatment record (received 10/15/15, page 8 of 29) indicates “[c]ontact dermatitis both hands, allergic to soap powder.” A June 1970 service treatment record (received 10/15/15, page 7 of 29) indicates “contact dermatitis both hands.” During his December 2008 VA examination, the Veteran states that “since 1970 he has had itching in his hands and legs, arms, and back, with periodic tiny white bumps that show up.” In his March 2017 VA examination, the Veteran “reports having intermittent itchy bumps to the hands for the past 40+ years.” A March 2017 VA examiner opines that the Veteran’s tinea pedis and contact dermatitis are less likely than not related to service. The examiner does not specifically address the Veteran’s lay statements that he has continued to experience itchy bumps since service. An addendum opinion is required. 6. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and adjustment disorder with depressed mood, is remanded. A March 2017 VA medical opinion states that the Veteran has an “Adjustment Disorder with Depressed Mood” that is not related to service. The examiner further states that the Veteran does not have a current diagnosis of PTSD, and that some of his symptoms “have resolved since his brain surgery in Oct[ober] 2016.” The examiner notes medical records containing prior diagnoses of PTSD and states that “it is possible that the Veteran met criteria for PTSD or another trauma-[related] or stressor-related disorder in the past . . . .” On remand, an addendum opinion is required that addresses whether the Veteran had a diagnosis of PTSD prior to October 2016 that is at least as likely as not related to service. 7. Entitlement to an increased rating for diabetes mellitus type 2 is remanded. As noted, the Veteran is entitled to an earlier effective date of March 14, 2006, for entitlement to service connection for diabetes. The RO will now need to assign a rating for the period from March 14, 2006, to April 26, 2009, in the first instance. The Board therefore finds that his claim for an increased rating is intertwined with his effective date for diabetes and that a decision on his increased rating claim at this time would be premature. 8. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left upper extremity is remanded. 9. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right upper extremity is remanded. 10. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is remanded. 11. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is remanded. 12. Entitlement to an effective date prior to January 18, 2011, for peripheral neuropathy of the left upper extremity is remanded. 13. Entitlement to an effective date prior to January 18, 2011, for peripheral neuropathy of the right upper extremity is remanded. 14. Entitlement to an effective date prior to January 18, 2011, for peripheral neuropathy of the left lower extremity is remanded. 15. Entitlement to an effective date prior to January 18, 2011, for peripheral neuropathy of the right lower extremity is remanded. The assignment of an earlier effective date for diabetes will also potentially impact the ratings and effective dates for the Veteran’s neuropathy claims. Since these issues are also intertwined with the issue of the Veteran’s effective date for diabetes, a decision on these issues at this time would also be premature. In addition, the requested VA back examination will include an assessment of any neuropathy symptoms related to the back, which could also impact the Veteran’s increased rating claims for neuropathy. 16. Entitlement to an effective date prior to March 14, 2006, for diabetes mellitus type 2 is remanded. As already described, the April 2018 Board decision is vacated with respect to all issues except for the Board’s grant of an earlier effective date of March 14, 2006, for diabetes mellitus type 2. The Board has therefore re-characterized the remaining claim as entitlement to an effective date prior to March 14, 2006, for diabetes mellitus type 2. The Board will defer any decision with respect to this claim pending the completion of the requested development. 17. Entitlement to a total disability rating due to individual unemployability is remanded. Finally, the Veteran’s TDIU claim is inextricably intertwined with the claims remanded for further development. Accordingly, the Board will defer any decision with respect to this claim pending the completion of the requested development. Additionally, on Remand the RO should obtain all relevant VA treatment records dated from March 2017 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all VA treatment records from March 2017 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed back disorder. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed back disorder; and (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed back disorder was incurred in the Veteran’s service. (c.) Whether the Veteran has any current or previously-diagnosed back disorder that (i) is proximately due to the Veteran’s left ankle disorder or (ii) was aggravated by the Veteran’s left ankle disorder. In rendering these opinions, the examiner should consider the November 1969 service treatment record (received 10/15/15, page 25 of 29) indicating “Pain in Back” and the July 1970 service treatment record (received 10/15/15, page 3 of 29) indicating “back pain in lumbar area of spine.” The examiner should also consider the medical publications submitted in 2018, which suggest that a back disorder could be related to a soft tissue injury or a right ankle injury. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 3. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed left ankle disorder and right ankle disorder. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed left ankle disorder and right ankle disorder. (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed left ankle disorder or right ankle disorder was incurred in the Veteran’s service, including but not limited to as a result of a June 1971 jeep accident or in-service ankle sprains. In rendering this opinion, the examiner should consider: i) The April 2005 DRO hearing transcript (pages 2–3) describing a June 1971 jeep accident; ii) the April 1971 and July 1971 service treatment records (received 10/15/15, pages 21 and 19 of 29) indicating left ankle sprains; iii) the Veteran’s lay testimony that he has experienced ankle pain since leaving service; and iv) the medical publications submitted in September 2018, which suggest that an ankle disorder could be the result of a soft tissue injury. (c.) Whether the Veteran has any current or previously-diagnosed right ankle disorder that (i) is proximately due to the Veteran’s left ankle disorder or (ii) was aggravated by the Veteran’s left ankle disorder. In rendering these opinions, the examiner should consider the medical publications submitted in September 2018, which suggest that a right ankle injury could develop secondary to a left ankle injury. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 4. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed tuberculosis. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed tuberculosis; and (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed tuberculosis was incurred in the Veteran’s service. In rendering these opinions, the examiner should consider: i) the March 1974 application in which the Veteran indicates treatment for tuberculosis in 1969 at Fort Polk, Louisiana; ii) military personnel records (received 10/15/15, page 7 of 7) indicating presence in Fort Polk, Louisiana for at least August 1969 and September 1969; iii) the Veteran’s September 2003 correspondence indicating testing for tuberculosis in December 1969; iv) the April 2005 DRO hearing testimony indicating testing for tuberculosis in 1969 when he was stationed at Fort Leonard Wood, Missouri for AIT training; and v) service treatment records indicating tuberculosis testing in December 1969 and November 1970 (received 11/19/03, page 2 of 2). The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 5. After obtaining any additional records to the extent possible, contact the Veteran to assess what time of the year, if any, he tends to experience skin rashes. To the extent possible, the attempt to schedule the Veteran for an examination during this time period and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed skin disorder. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed skin disorder; and (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed skin disorder was incurred in the Veteran’s service. In rendering these opinions, the examiner should consider: i) the April 1970 service treatment record (received 10/15/15, page 8 of 29) indicating “[c]ontact dermatitis both hands, allergic to soap powder”; ii) the June 1970 service treatment record (received 10/15/15, page 7 of 29) indicating “contact dermatitis both hands”; and iii) the Veteran’s lay statements that he has continued to experience itching since leaving service, as contained in the December 2008 and March 2017 VA examinations. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 6. After completing the above development to the extent possible, obtain a medical opinion regarding the nature and etiology of any acquired psychiatric disorder, including but not limited to PTSD, and provide the requested opinions. (a.) Identify all acquired psychiatric disorders currently present. (b.) Offer an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or more) that a current acquired psychiatric disorder, including but not limited to PTSD and adjustment disorder with depressed mood, had its onset in service or was otherwise caused by an in-service disease or injury. (c.) If a diagnosis of PTSD is warranted, the examiner should provide an opinion whether it is at least as likely as not (50 percent or greater probability) that PTSD is due to exposure to an actual confirmed stressor or the fear of hostile military or terrorist activity. Fear of hostile military or terrorist activity means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the response to the event or circumstance involved the psychological or a psycho-physiological state of fear, helplessness, or horror. (d.) Offer an opinion as to whether the Veteran had a diagnosis of PTSD prior to October 2016, and whether it is at least as likely as not that such a diagnosis is related to service. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. In rendering these opinions, the examiner should consider: i) the Veteran’s June 2006 PTSD statements (received 6/14/16); ii) the Veteran’s December 2009 VA social work psychosocial assessment (received 4/7/10, pages 38–42 of 90); and iii) the September 2018 statement from the Veteran’s attorney regarding PTSD. Whether to schedule the Veteran for an examination shall be left to the discretion of the examiner selected to write these opinions. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel