Citation Nr: 18153599 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-34 706 DATE: November 28, 2018 ORDER Entitlement to service connection for a pulmonary embolism, and residuals associated therewith, is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity (RLE), to include as secondary to a service-connected disability, is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity (LLE), to include as secondary to a service-connected disability, is denied. REMANDED Entitlement to an evaluation in excess of 10 percent for coronary artery disease (CAD) is remanded. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran was diagnosed with a pulmonary embolism, to include any residuals associated therewith, during the appeal period. 2. Peripheral neuropathy of the RLE was not diagnosed in service, was not continuous since service, was not shown to a compensable degree within one year of in-service herbicide exposure, and is not causally or etiologically related to service. 3. Peripheral neuropathy of the LLE was not diagnosed in service, was not continuous since service, was not shown to a compensable degree within one year of in-service herbicide exposure, and is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a pulmonary embolism, to include any residuals associated therewith, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). 2. Peripheral neuropathy of the RLE was not incurred in service, may not be presumed to have been incurred in service, nor is it due to exposure to herbicide agents. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2018). 3. Peripheral neuropathy of the LLE was not incurred in service, may not be presumed to have been incurred in service, nor is it due to exposure to herbicide agents. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to July 1972. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in February 2015, July 2015 and June 2016, of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Service Connection 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.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). This presumption may also be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the foregoing provisions regarding presumptive service connection for exposure to herbicide agents, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a pulmonary embolism The record does not establish, nor does the Veteran contend, that a pulmonary embolism, and any residuals associated therewith, is directly related to his period of active service. The Veteran initially claimed entitlement to service connection for a pulmonary embolism as secondary to his service-connected ankle disability. In his substantive appeal, the Veteran contends that this claim cannot be adjudicated until the issue of service connection for bilateral peripheral neuropathy is resolved. The Veteran also contends, in the same substantive appeal, that this claim should be re-addressed after service connection for coronary artery disease is granted – which the Board notes the Veteran is now service-connected. See December 2016 Substantive Appeal. The Veteran’s statements are suggestive of his lay belief that his bilateral lower extremity neuropathy (which is not service-connected), his service-connected coronary artery disease and his service-connected ankle disability are all related, and caused a pulmonary embolism. Service treatment records do not reveal any complaint or treatment for pulmonary embolism. 38 C.F.R. § 3.303. The Veteran was afforded a VA examination to assess the nature and etiology of any vascular diseases, including deep vein thrombosis / pulmonary embolism. The Board notes that while the examiner noted that the Veteran reported a personal history of deep venous thrombosis / pulmonary embolism in approximately 1996 to 1998, he also stated that this diagnosis is unconfirmed. Pertinently, the examiner indicated that no medical records documenting the reported remote occurrence were available. The examiner conducted a physical examination, which revealed edema of the calves. He explained that the presence of edema prevents any assessment of a post-phlebitic syndrome. While a history of deep vein thrombosis is reported, review of the Veteran’s medical records fails to show any diagnosis of pulmonary embolism or deep vein thrombosis. In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. In the absence of any competent evidence of pulmonary embolism, the Board must conclude the Veteran does not currently suffer from such disability. Without competent evidence of a diagnosis of pulmonary embolism, the Board must deny the Veteran’s claim. Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for a pulmonary embolism must be denied. Gilbert v. Derwinski, 1 Vet. App 49 (1990). 2. Entitlement to service connection for peripheral neuropathy of the RLE and LLE The Veteran claims bilateral lower extremity peripheral neuropathy as secondary to his service-connected diabetes mellitus. See July 2016 Substantive Appeal. The Board recognizes the Veteran’s service in Vietnam from 1969 to 1970. See DD Form 214. With regard to presumptive service connection based on herbicide exposure, the Veteran served in Vietnam and exposure to herbicides is presumed. Nonetheless, service connection is not warranted on a presumptive basis due to herbicide exposure for peripheral neuropathy. 38 C.F.R. § 3.309 (e). Under 38 C.F.R. § 3.309 (e), presumptive service connection on the basis of herbicide exposure is warranted only for early onset peripheral neuropathy. To qualify for presumptive service connection, early onset peripheral neuropathy must have manifested to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active service. 38 C.F.R. §§ 3.307 (a)(6)(ii), 3.309(e). In 2013, the Secretary specifically concluded that evidence did not support an association between herbicide exposure and delayed-onset peripheral neuropathy, which was defined as having its onset more than one year after exposure. 78 Fed. Reg. 54763-01 (Sept. 06, 2013). The record does not establish that the Veteran’s bilateral lower extremity peripheral neuropathy manifested within a year of separation from service. In a July 2014 private medical examination, the Veteran reported that his neuropathy symptoms had their onset twelve to fifteen years prior. The Veteran reported bilateral lower extremity numbness, burning and tingling, which have progressed. In fact, while the examining doctor’s impression was mild to moderate polyneuropathy with axonal features, it was also noted that no electrophysiological evidence of a tibial, peroneal, sciatic, polyneuropathy or active lumbosacral radiculopathy was found via EMG of the bilateral lower extremities. Even assuming that the Veteran developed symptoms of peripheral neuropathy as early as 1999, this is well outside the one-year legal presumption for his disability to be considered early onset peripheral neuropathy under 38 C.F.R. §§ 3.307 (a) and 3.309(e). As early onset peripheral neuropathy has not been shown, service connection for bilateral upper and lower extremity peripheral neuropathy on the basis of presumed exposure to Agent Orange is denied. Notwithstanding the inapplicability of the Agent Orange presumptive service regulations, the Board has considered the claim on a direct exposure basis. Combee v. Brown, 34 F.3d 1039, 1042-44 (Fed. Cir. 1994). The Board has reviewed the Veteran’s available service treatment records, which are dated from his post-active service period of active duty for training. These records detail an injury in August 1976, while the Veteran was attending flight school as an Army National Guard Reservist. Swelling and moderate instability of the ankle were noted, and the Veteran was diagnosed with ruptured lateral ligaments of the right ankle. The Veteran’s service records are otherwise silent as to any lower extremity complaints, treatment or diagnosis. Significantly, there is no indication that the Veteran was diagnosed, treated or complained of bilateral lower extremity neuropathy in service. The evidence submitted by the Veteran has raised the argument that he has had bilateral lower extremity peripheral neuropathy that is a result of his in-service exposure to Agent Orange. Therefore, the question is whether there is a causal relationship between his current reported complaints and service. The Board notes that while service records from his active duty period are missing, there is no presumption, either in favor of the claimant or against VA. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). Furthermore, and more importantly, post-service records address the current status of the Veteran’s peripheral neuropathy and fail to establish a relationship between peripheral neuropathy and exposure to Agent Orange – which has been presumed. As previously noted, a July 2014 private medical examination reflects that the onset of the Veteran’s symptoms was in or about 1999, over 27 years after his separation from service. An October 2014 private disability benefits questionnaire regarding the Veteran’s service-connected diabetes indicated that the Veteran’s neuropathy is a complication of diabetes mellitus. Furthermore, none of the VA examinations the Veteran was afforded, including in February 2015 and in August 2016, nor has the VA opinion of January 2017 suggested any etiological link to service or agent orange exposure. Accordingly, the medical evidence does not support direct service connection based on exposure to herbicide agents. Additionally, the evidence does not support the claim based on secondary service connection. While there is evidence of a current disability (bilateral lower extremity peripheral neuropathy) and evidence of a service-connected disability (diabetes mellitus), the medical evidence does not establish a nexus between the two. The Board acknowledges an October 2014 private disability benefits questionnaire which confirmed the Veteran’s diagnosis of peripheral neuropathy, and indicated it is a complication of the Veteran’s service-connected diabetes. However, as that examiner provided no rationale to support the opinion, it warrants no probative weight. See Horn v. Shinseki, 25 Vet. App. 251 (2012). The Veteran was afforded a VA examination in February 2015. The examiner indicated that the Veteran does not have a diagnosis of diabetic peripheral neuropathy. Symptoms such as sensory loss in the feet were acknowledged and attributed to sensorimotor polyneuropathy. However, the examiner explained that the Veteran’s neuropathy symptoms long precede the development of diabetes, and concluded that the Veteran’s neuropathy is less likely than not related to diabetes. The examiner further explained that neuropathy in diabetes is thought to arise from sustained hyperglycemia, or due to vascular involvement of the vasa nervorum, causing axonal loss. The Board takes note of an associated VA examination of the Veteran’s diabetes, which pertinently indicates that the Veteran’s diabetes is mild, of short duration, and is without secondary complications. The Veteran was afforded an additional VA examination in January 2016. The Veteran’s diagnosis of neuropathy was confirmed. The examiner indicated that the Veteran does not have symptoms attributable to diabetic peripheral neuropathy. This examiner, too, opined that moderate incomplete sensory loss in the feet was due to polyneuropathy. However, the examiner opined that the Veteran’s diabetes is unlikely a contributor to the neuropathy, as the onset of symptoms was long before the diagnosis of diabetes, and glycemic control is excellent. Furthermore, the examiner stated that the Veteran has not had diabetes long enough to develop vascular complications from it. Finally, a January 2017 VA opinion has been associated with the claims file, to reconcile conflicting medical evidence. The examiner reviewed all opinions and evidence of record. It was again emphasized that the onset of the Veteran’s neuropathy symptoms was long before his diagnosis of diabetes. The examiner noted that the Veteran’s glycemic control is excellent, and that his current physical findings have not progressed since 2015. The examiner reiterated that diabetes is less likely the cause of the Veteran’s neuropathy, and that since findings have not changed, the diabetes could not have aggravated the neuropathy. Furthermore, additional post-service records fail to establish a relationship between the Veteran’s peripheral neuropathy and his service-connected disabilities. Therefore, the medical evidence does not support the claim based on secondary service connection. The Board has considered the Veteran’s lay statements of record, including that he was being treated for a number of conditions consistent with diabetes prior to his 2014 diabetes diagnosis, including frequent urination, fatigue and thirst. The Board notes that a lay person is competent to address etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. See Jandreau v. Nicholson, 492 F.3d 1372 Fed. Cir. 2007). However, the Veteran is not competent to self-diagnose peripheral neuropathy and attribute its etiology to service. The available competent medical evidence does not show that his claimed bilateral lower extremity peripheral neuropathy is related to service. In light of the above discussion, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As service connection is not warranted, the appeal is denied. Continued on Next Page REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent for coronary artery disease is remanded. The Veteran claims entitlement to an evaluation in excess of 10 percent for coronary artery disease. The Board notes that the Veteran was afforded a VA examination in February 2015. Pertinently, the examiner stated that the Veteran was overweight at the time, which compromises his interview mets evaluation. The Veteran addressed the examiner’s statement in his July 2016 substantive appeal. In particular, the Veteran reported that over the past year (2016), the Veteran underwent stomach surgery to lose weight. The Veteran contends he has lost over 80 pounds as a result of his surgery. As a result, the Veteran further contends that the available medical evidence has been rendered inadequate. The Board agrees that the Veteran’s contentions are indicative of a potential material change of the Veteran’s disability and the examiner’s ability to assess its severity. In light of the above, the Board finds that an updated VA examination is necessary to ascertain the current severity of this disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus is remanded. The Veteran contends that his diabetes mellitus, type II, is more severe than is indicated by the assigned 20 percent rating. In February 2015, the Veteran was afforded a VA examination to assess the nature and severity of his diabetes. A statement of the case was then issued in November 2016. Thereafter, the Veteran was afforded an additional VA examination in January 2017 to address the nature and severity of his diabetes. However, the RO has not issued a supplemental statement of the case (SSOC) since the receipt of this additional evidence. The duty to readjudicate based upon VA-developed records cannot be waived without potential prejudice to the Veteran. Disabled Am. Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Therefore, a remand is required. The matters are REMANDED for the following action: 1. Any outstanding VA and private medical records must be obtained and associated with the claims file. Any responses associated with these requests should be memorialized in the Veteran’s claims file. 2. Thereafter, the Veteran must be afforded a VA heart examination with an appropriate expert to determine the current nature and severity of the Veteran’s service-connected coronary artery disease. The examiner should perform all necessary testing, to include METs testing. 3. Thereafter, readjudicate the Veteran’s claims. If the benefits sought on appeal remain denied, the Veteran should be provided with an SSOC. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 38 U.S.C. §§ 5109B, 7112 (2012). K. A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.C., Associate Counsel