Citation Nr: 1809243 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 12-05 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to exposure to herbicides or as secondary to diabetes mellitus, type 2. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to exposure to herbicides or as secondary to diabetes mellitus, type 2. REPRESENTATION Appellant represented by: Bryan Held, Agent ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION The Veteran had active service from July 1971 to July 1973, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (BVA or Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In April 2014, the Board remanded these matters for further development. The issue of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to exposure to herbicides or as secondary to diabetes mellitus, type 2, 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's hypertension did not have its onset in service, did not manifest to a compensable degree within one year of separation from service, and is not otherwise related to service, to include as due to in-service herbicide exposure. 2. The Veteran's hypertension was not caused by or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for hypertension to include as a result of exposure to herbicides or as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). 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). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). Service connection may be presumed for certain chronic diseases, to hypertension, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. 3.307, 3.309(a) (2017). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b) (2017). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection. 38 C.F.R. § 3.303(b) (2017). Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a Veteran was exposed to a herbicide agent (e.g., Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 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 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II or adult-onset diabetes mellitus), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, 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) (2017). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996). VA amended the list of covered diseases presumed service-connected due to herbicide exposure as to include the conditions of all chronic B-cell leukemia's (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Parkinson's disease, and ischemic heart disease (IHD). Note 3 to section 3.309(e) provides that "the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease." See 75 Fed. Reg. 52,202 -53,216 (Aug. 31, 2010), to be codified later at 38 C.F.R. § 3.309(e) (2017). Notwithstanding the presumption, service connection for a disability claimed as due to herbicide exposure (Agent Orange) may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) and 1116 and 38 C.F.R. § 3.303. 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 (the Vietnam Era), specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6). A veteran who, during active military service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to an herbicide agent. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). In the current matter, the Veteran served in the Republic of Vietnam during the Vietnam Era. Therefore, he is presumed to have been exposed to herbicides. Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disability. 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 caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran seeks service connection for hypertension, to include as due to his exposure to herbicides in-service and his service-connected diabetes. At the outset, the Board notes that VA regulations specify that the term hypertension means that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101. In addition, VA regulations specify that hypertension must be confirmed by readings taken two or more times on at least three different days. Id., Note (1). The Veteran's June 1970 enlistment examination did not find any complaints or concerns regarding his vascular system. His blood pressure was recorded as 118/80. A concurrent report of medical history also did not report any concerns regarding his blood pressure or vascular system. A June 1971 report of medical examination did not find any concerns or symptoms relating to the Veteran's vascular system. His blood pressure was recorded at 132/90. In a concurrent report of medical history, the Veteran denied a history of high blood pressure. In November 1972, a service treatment record (STR) showed the Veteran to have presented with a traumatic amputation of two fingers on his left hand. His blood pressure was recorded as 160/110. A separated November 1972 STR reported the Veteran's blood pressure as 124/86. A July 1973 report of medical examination indicated the Veteran's blood pressure was 122/86. No symptoms or concerns regarding the Veteran's vascular system were noted or found. A May 1999 VA medical center (VAMC) note stated that the Veteran had hypertension. No blood pressure readings were taken. In January 2001, a VAMC record indicated the Veteran's blood pressure was 133/90. He denied having hypertension. In April 2001, a VAMC record showed the Veteran's blood pressure to be 154/95. Hypertension was noted at that visit. In July 2001, a VAMC record showed the Veteran to have a blood pressure of 146/90. In January 2002, a VAMC neurology consult note recorded the Veteran's blood pressure as 130/90. In February 2004, a VAMC primary care note showed the Veteran's blood pressure to be 158/65. In September 2004, a VAMC primary care note indicated the Veteran's active problem list included hypertension, which was noted to be uncontrolled due to the Veteran's failure to take medication. In May 2007, a VAMC primary care note indicated the Veteran had a history positive for hypertension. He was noted to not have had primary care for the prior 2 and half years. He was instructed to check his blood pressure at home over the next weeks and return the results. A July 2007 VAMC primary care note indicated that the Veteran's blood pressure was 147/89. He was noted to be taking his medication daily and exercising. In an August 2007 primary care note, the Veteran was noted to be in the early stages of diabetes. Diabetic hypertension and hypertension were noted to occur with blood pressure readings of 160/100. The Veteran's blood pressure was recorded at 143/92. He was educated on hypertension management at that visit. In January 2008, a VAMC record showed the Veteran's blood pressure to be 160/100. He was advised to return in one month for a blood pressure re-check. A March 2008 VAMC addendum indicated that the physician had discussed with the Veteran his poorly controlled hypertension. In April 2010, a VA examination found the Veteran's past medical history significant for common migraine, low back pain, hypertension, obesity, nicotine dependence, diabetes mellitus, pain in joint involving lower leg, hyperlipidemia, dermatophytosis of the nail, pain in limb, dry skin, and a bunion. Upon examination, his blood pressure was 126/74, 116/78, and 118/80. There was no evidence of hypertensive heart disease or arteriosclerotic complications of hypertension. The examiner's diagnostic impression of the Veteran was that he had hypertension that was not secondary to his service-connected diabetes and that the hypertension had not been aggravated beyond its normal progression due to his service connected diabetes as there was no evidence of the Veteran having end-stage renal disease, which was the necessary nexus with which to link hypertension and diabetes. In September 2010, a VAMC record reported that the Veteran had reports of chest pain, dyspnea, orthostatic hypotension, and renal failure. Upon examination he was found to have acute renal failure most likely associated with his hypotension and dehydration. A July 2011 VAMC primary care noted the Veteran to have hypertension. A note included an indication that diabetic hypertension blood pressure was 139/89. The Veteran's blood pressure was noted to be elevated. In March 2013, a VAMC record indicated the Veteran had mild renal insufficiency. In March 2016, a VA examination found the Veteran to have a history positive for hypertension. His blood pressure was recorded at that visit at 135/78, 140/78, 145/82, with an average blood pressure reading of 140/79. After a review of the Veteran's medical history the examiner stated that the Veteran's hypertension was less likely than not proximately due to or caused by the Veteran's service connected Diabetes mellitus type 2 since the diagnosis of hypertension pre-dated the diagnosis of diabetes by many years. The examiner stated that there was also no evidence of end stage renal disease, which was the necessary nexus needed to link the hypertension and diabetes. The Veteran's noted acute renal failure in July 2011 did not constitute a diagnosis of chronic end-stage renal failure, and found that there was no evidence of any chronic kidney disease in the evidence of record. The examiner stated that the VAMC note dated July 2011 appeared to refer to blood pressure guidelines for treatment of a diabetic with hypertension and did not indicate that the Veteran's diabetes mellitus type 2 was the cause of his hypertension. The examiner also found that the Veteran's hypertension was not aggravated beyond its normal progression by the Veteran's diabetes because, as previously stated, there was no evidence of end stage renal disease, which was the necessary nexus needed to link hypertension and diabetes. Direct service connection necessitates that the Veteran's hypertension was related to an injury or disease incurred in service. The evidence of record, however, does not support such a finding. The Veteran's STRs do contain reports of the Veteran having elevated blood pressure readings, but also show the Veteran to have had normal blood pressure readings while in-service. The elevated blood pressure readings while in-service coincided with the Veteran's traumatic amputation of his fingers. There are no independent readings of high blood pressure which did not coincide with the Veteran's traumatic injury. Importantly, the Veteran's STRs are void of treatment for high blood pressure as a stand-alone concern and also do not include a diagnosis of or treatment for hypertension. Thus, the Veteran's isolated episodes of elevated blood pressure in-service do not establish that the Veteran had hypertension while in-service. Additionally, in the Veteran's 1973 separation physical, hypertension was not found to have been present while the Veteran was in-service. Similarly, there is no evidence of record which established that the Veteran was diagnosed with hypertension within one year of his active service. The first documented report of hypertension found in the evidence of record was in May 1999. This medical record did not indicate that the Veteran had related his hypertension to service or had been treating for hypertension since his separation from service. Indeed, the Veteran denied hypertension in his January 2001 medical visit. The first indication contained in the evidence of record that the Veteran had hypertension, then, was his May 1999 VAMC primary care note. The diagnosis of hypertension in 1999 does not establish the required continuity of symptomology necessary for establishing direct service connection. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330 (Fed. Cir. 2000); Shaw v. Principe, 3 Vet. App. 365 (1992). Thus, the medical evidence of record does not indicate that the Veteran was treating for high blood pressure or hypertension either in-service or within several years of service. The Board notes that there is also no indication in any of the Veteran's VAMC medical care that he related his hypertension to his active duty military service. The medical evidence of record, then, did not link the Veteran's hypertension and his service. As such, service-connection for hypertension on a direct basis is not warranted. Furthermore, there is no probative evidence of record suggesting that the Veteran's exposure to herbicides caused his hypertension. None of the Veteran's medical providers or other medical evidence of record establish that the Veteran's exposure to herbicides caused his hypertension. Thus, the probative medical evidence of record does not support a finding that the Veteran's hypertension was caused by his active service, to include exposure to herbicides. Additionally, secondary service connection is also not established in regards to the Veteran's hypertension, as it would necessitate the disability being caused or aggravated by his service connected diabetes. Significantly, there is no medical evidence of record which found the Veteran's hypertension related to his diabetes. In fact, the April 2010 and March 2016 VA examiners specifically found that the Veteran's hypertension was not associated with or aggravated by his diabetes, as his diagnosis of hypertension pre-dated the diagnosis of diabetes in 2007. Furthermore, both examiners found that the needed link between hypertension and diabetes was end stage renal failure, which was not found in the Veteran's medical treatment or upon examination. The March 2016 examiner specifically addressed the notations of renal failure in the Veteran's medical history and found that it was not the end stage renal failure associated with diabetes. Thus, the record is void of any evidence which would support a finding that the Veteran's hypertension was caused or aggravated by his service-connected diabetes. As such, the Board finds that secondary service-connection is not warranted. The Board finds the April 2010 and March 2016 VA examiners' medical opinions adequate and highly probative both as to the Veteran's subjective reports and the resulting objective findings. The examiners possess the necessary education, training, and expertise to provide the requested opinions. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Specifically, the examiners interviewed the Veteran, reviewed his claims file, and conducted a physical examination. Moreover, the examiners had the requisite medical expertise and had sufficient facts and data on which to base their conclusions. As such, the Board accords the April 2010 and March 2016 examination opinions great probative weight. Significantly, neither the Veteran nor his representative has presented or identified any contrary medical opinion that supports the claim for service connection. The Board also notes that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board has also considered the Veteran's lay statements. Although the Board recognizes that the Veteran is competent to describe his observable symptoms of hypertension, he is not competent to opine as to the etiology of his hypertension, as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Veteran's lay opinions that his hypertension was related to his active service, to include his in-service exposure to herbicides, or his service-connected diabetes, do not constitute competent medical evidence and lack probative value. In sum, the claims file does not contain competent and credible evidence that the Veteran's hypertension was related to service, to include as due to his in-service exposure to herbicides, or as secondary to his service-connected diabetes. Accordingly, as the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hypertension, to include as due to exposure to herbicides or as secondary to diabetes mellitus, type 2, is denied. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The Veteran seeks service connection for peripheral neuropathy, to include as due to his exposure to herbicides and/or due to his service connected diabetes. A July 2000 VAMC record showed the Veteran to have undergone an arterial study for complaints of constant tingling in his right leg. Evidence of arterial occlusive disease was noted. In January 2009, a VAMC podiatry consult note indicated the Veteran had presented for diabetes with neurological conditions. Upon examination, he noted an occasional tingling sensation. A May 2009 VAMC podiatry note showed the patient with a history of type II diabetes and neuropathy. An April 2010 VA examination found, however, no evidence of peripheral neuropathy of the Veteran's lower extremities. Additionally, an April 2013 VAMC record indicated the Veteran had peripheral neuropathy which was possibly related to his diabetes. An additional March 2016 VA examination, however, found that there was no pathology or diagnosis of any diabetic peripheral neuropathy in the evidence of record. The examiner did not address the aforementioned reports of neuropathy found in the Veteran's records. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). When an examination is inadequate, the Board must remand the case for further development. Bowling v. Principi, 15 Vet.App. 1 (2001), 38 C.F.R. § 4.2 (2016). Based on the foregoing, the Board finds that the prior VA examinations and opinions regarding the Veteran's peripheral neuropathy are incomplete and that a new VA examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Associate with the record any VA clinical documentation not already of record pertaining to treatment of the Veteran, including that provided after 2016. 2. Then, arrange for the Veteran to be examined by a Neurologist to determine the nature and likely etiology of any peripheral neuropathy of the lower extremities. The claims file, including a copy of this Remand, must be made available to the examiner for review in connection with the examination, and it should be confirmed that such records were available for review. All necessary tests and studies should be accomplished, and complaints and clinical manifestations should be reported in detail. The examination report must include a complete rationale for all opinions expressed. The examiner should provide opinions responding to the following: a. Does the Veteran have peripheral neuropathy of the lower extremities? In so finding, the examiner must reconcile the medical evidence, which includes VA treatment records that note instances of peripheral neuropathy. b. For any peripheral neuropathy of the bilateral lower extremities diagnosed, the examiner must opine as to whether it is at least as likely as not (a 50 percent or better probability) that such disability is: (i.) related to the his military service, to include conceded herbicide exposure therein; or (ii.) Caused or aggravated (worsened beyond its natural progression) by his service-connected diabetes mellitus. The examiner must provide a complete rationale on which his/her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it. If the examiner finds that he/she cannot provide an opinion without resorting to speculation, he/she should explain the inability to provide an opinion. 3. After ensuring compliance with the development requested above, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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. §§ 5109B, 7112 (2012). ______________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs