Citation Nr: 20005474 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 17-35 451 DATE: January 23, 2020 ORDER New and material evidence has not been received, the claim for service connection for asthma is not reopened. Entitlement to service connection for bilateral carpal tunnel syndrome is denied. Entitlement to service connection for diabetes mellitus, type II (DM2), to include as due to exposure to Agent Orange, is denied. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to exposure to Agent Orange, is denied. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to exposure to Agent Orange, is denied. Entitlement to service connection for hypertension (HTN), to include as due to exposure to Agent Orange and/or service-connected posttraumatic stress disorder (PTSD) with depressive disorder not otherwise specified (NOS), is denied. FINDINGS OF FACT 1. In September 2006, the Board of Veterans’ Appeals (Board) denied service connection for asthma; the Veteran did not appeal to the U.S. Court of Appeals for Veteran’s Claims or request reconsideration; therefore, the Board’s September 2006 denial is final. 2. Evidence received since November 2009, is cumulative and not material because it does not relate to an unestablished fact necessary to substantiate a claim for entitlement to service connection for asthma. 3. Bilateral carpal tunnel syndrome did not manifest during active service or within one year of separation and was not caused by any aspect of service. Bilateral carpal tunnel disorder is not otherwise attributable to service. 4. The Veteran does not have DM2. 5. Left upper extremity peripheral neuropathy did not manifest during active service or within one year of separation and was not caused by any aspect of service. Left upper extremity peripheral neuropathy is not otherwise attributable to service. 6. Right upper extremity peripheral neuropathy did not manifest during active service or within one year of separation and was not caused by any aspect of service. Right upper extremity peripheral neuropathy is not otherwise attributable to service. 7. HTN did not manifest during active service or within one year of separation and was not caused by any aspect of service. HTN is not shown to be proximately caused by, or aggravated by, service-connected PTSD with depressive disorder NOS. HTN is not otherwise attributable to service. CONCLUSIONS OF LAW 1. The September 2006 Board Decision that denied service connection for asthma is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2018). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for asthma. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for service connection for bilateral carpal tunnel syndrome have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). 4. The criteria for service connection for left upper extremity peripheral neuropathy have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). 5. The criteria for service connection for right upper extremity peripheral neuropathy have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). 6. The criteria for service connection for DM2 have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). 7. The criteria for service connection for HTN have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service as a supply specialist in the United States Army from September 1965 to June 1967 including service in the Republic of Vietnam. These matters come before the Board on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7104(b). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be credible for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Asthma In the September 2006 Decision, the Board considered evidence consisting of the Veteran’s military induction examination report; lay claims; service treatment records (STRs); and VA treatment records. The Board noted that the Veteran indicated that he had had asthma since age 12 in his April 1965 induction report. The Veteran’s STRs include neither complaints nor treatment for asthma during active duty service. Moreover, the Veteran’s June 1967 Separation Report of Medical Examination indicated normal clinical evaluations of the lungs and chest. The Board considered the Veteran’s January 2004 statement that the environmental conditions including toxins, dust and filth in Vietnam aggravated his asthma. The Board found that this lay and medical evidence failed to reveal that active duty service aggravated his preexistent asthma. Even though post-service medical records disclosed diagnoses of chronic obstructive pulmonary disease (COPD) and emphysema, the evidence of record failed to show that these disease entities had onset in active service. Since September 2008, VA received new evidence consisting of: lay statement conveying that asthma was worsened by dust, filth, and other environmental exposures in Vietnam and recursive lay statements to this effect; a number of informants’ lay statements about worsened breathing and asthma; Social Security Administration (SSA) medical records which note that the Veteran had a past medical history and diagnosis of asthma and had used nebulizers and prednisone in 2002; a handwritten note from a registered nurse, who worked for the Veteran’s now-deceased physician (conveying that the Veteran’s asthma was under control before military induction); additional VA treatment records; a lay document styled as a “certification” bearing the signatures of a number of lay informants, of which the content repeated other lay statements of record; private medical records from B. hospital noting the Veteran’s current respiratory ailments; and a June 2017 VA respiratory examination report and negative nexus opinion as to aggravation of preexistent asthma caused by dust, filth, and other environmental exposures in Vietnam. Even though the Veteran contends that new and material evidence has been submitted, this evidence is cumulative because it fails to establish that preexistent asthma was aggravated by any specific aspect of the Veteran’s active duty service on the same basis and analysis as was considered by the Board in 2006. Thus, although new, they are cumulative and not material to the unestablished fact that the Veteran’s asthma was or was not aggravated by service or that his other current respiratory disorders were onset or caused by service. The new evidence fails to disclose that the Veteran’s asthma, which preexisted active duty service, permanently worsened as a result of active duty service. Therefore, the evidence is cumulative and not material, and the service connection claim for asthma is not reopened. Service Connection The Veteran contends that bilateral carpal tunnel syndrome; DM2; left upper extremity peripheral neuropathy; right upper extremity peripheral neuropathy; and HTN were incurred in, or aggravated by, active duty service. Further, the Veteran advances that the former three disease entities are due to exposure to Agent Orange in the Republic of Vietnam. Alternatively, the Veteran posits that HTN was proximately caused by, or aggravated beyond its natural progression by, service- PTSD with depressive disorder NOS. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases—to include organic diseases of the nervous system and diabetes mellitus—may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.§§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). All have a presumptive period of one year following separation from service. 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) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310 (a)-(b). 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 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). For Veterans who have been exposed to an herbicide agent (to include Agent Orange) during active service, presumptive service connection is available for certain enumerated diseases. See 38 C.F.R. § 3.309(e). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 4260042608 (2002). Nevertheless, 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). As already noted, the evidence of record reveals the Veteran’s active service in the Republic of Vietnam, thus he is presumed to have been exposed to an herbicide agent. See 38 C.F.R. § 3.307(a)(6)(iii). DM2 and early-onset peripheral neuropathy are enumerated diseases under 38 C.F.R. § 3.309(e). Analysis The Veteran’s June 30, 1967 Separation Report of Medical Examination shows normal clinical evaluations of the vascular system; endocrine system; upper extremities; and neurological status. In the associated Separation Report of Medical History, the Veteran indicated that he had not had and did not have: high or low blood pressure; arthritis or rheumatism; bone, joint, or other deformity; painful or ‘trick’ shoulder or elbow; sugar or albumin in urine; frequent or painful urination; or neuritis. A review of the Veteran’s other STRs fails to disclose complaints, treatment, or diagnoses of bilateral carpal tunnel syndrome; DM2; left upper extremity peripheral neuropathy; right upper extremity peripheral neuropathy; or HTN. Further, the other STRs fail to disclose symptomatology indicative of these disease entities. A review of private medical records from B. Hospital is instructive. Upon physical examination in January 1999, a physician indicated increased blood pressure, but ruled out HTN. A May 2001 record discloses normal muscle strength and tone and no clinical findings of high or low glucose. In a March 2002 VA progress note, a clinician noted that the Veteran reported that his sister had HTN. The clinician indicated that the Veteran did not complain of joint pains or aching muscles. Also, the Veteran did not endorse weakness in the extremities or numbness in the hands or feet. In a September 2003 VA clinical note, a provider indicated that the Veteran denied any neurological problems. Subsequent VA treatment show diagnoses of borderline HTN in June 2006 and an HTN in January 2007. Diagnoses of HTN are ubiquitous in VA treatment records after the initial 2007 diagnosis. As noted above, a host of lay informants opined as to their perceptions of the Veteran’s worsened asthma. A review of the record also shows that these informants offered lay perceptions as to the Veteran’s fatigue and complaints of peripheral extremity pain. Opining as to the results of a September 2014 electromyography test, a physician at a private facility found abnormal neural results. The physician opined that the test data are indicative of a diffuse sensory predominant polyneuropathy in the upper and lower extremities. In June 2015, the Veteran was afforded a battery of VA examinations. In each instance, the examiner reviewed the claims file; considered the Veteran’s subjective accounts; and conducted clinical evaluations (“VA exam protocols”). Upon peripheral nerve conditions examination, a VA provider indicated that the Veteran had received a diagnosis of peripheral neuropathy in August 2014. Upon consideration of the totality of evidence, this provider opined that the Veteran first was diagnosed with “confirmed” peripheral neuropathy—via nerve conduction testing—in September 2014, adding that the cause is unknown. As to bilateral carpal tunnel syndrome, this provider indicated that there was no current disability. Upon DM2 examination, the provider reported that the Veteran denied having been diagnosed with DM2. Hence, the issue of etiology was not considered. Here, the Board observes that a comprehensive review of the Veteran’s private and VA medical treatment records fails to disclose that the Veteran ever received a diagnostic impression of DM2. A review of VA treatment records subsequent to the June 2015 VA examinations reveal multiple complaints of neuropathy symptoms. The Veteran was afforded multiple consultations and educational programming. In June 2017, the Veteran was afforded a VA examination focused on HTN. The VA provider followed VA exam protocols. Upon consideration of the totality of evidence, the VA provider rendered an opinion. The provider indicated that the Veteran’s current HTN is less likely than not proximately due to, or the result of, the Veteran’s service-connected PTSD with depressive disorder NOS. As a rationale for this negative nexus opinion, the provider indicated that stress disorders, including PTSD, may cause transient increases in blood pressure but usually do not by themselves lead to persistent high blood pressure that leads to a clinical diagnosis of HTN. In November 2019, the Veteran’s representative submitted a brief. In pertinent part, this representative reiterated the Veteran’s contentions, underscoring the probative value of the lay evidence of record. In the absence of proof of a present disability there can be no valid claim. See Brammer, supra. The evidence of record is silent for current diagnoses of bilateral carpal tunnel syndrome and DM2. Thus, the establishing service connection on either a direct or presumptive basis is not warranted. See Shedden, supra; 38 C.F.R. §§ 3.307, 3.309. While the Veteran’s sincerely believes that he has he has these disabilities, he has offered no competent medical evidence to support these beliefs. The Board notes that the Veteran still ultimately bears some burden of production. 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). The Veteran has received diagnoses of current peripheral neuropathy and HTN. Therefore, the first element of establishing service connection has been met. See Shedden, supra. Nevertheless, as noted above, the Veteran’s STRs fail to disclose in-service incurrences, diseases, injuries for either the two peripheral neuropathy claims or the HTN claim. Here, the Board assigns considerable probative weight in the Veteran’s June 30, 1967 Separation Report of Medical Examination, wherein normal clinical evaluations of the vascular system; upper extremities; and neurological status were indicated. Without in-service incurrences, nexuses cannot be drawn to either bilateral upper extremity peripheral neuropathy or HTN. This forecloses a grant of service connection for either disability on a direct basis. See id. Moreover, the evidence of record fails to reveal diagnosis of either bilateral upper extremity peripheral neuropathy or HTN within a year of the Veteran’s separation from active duty service. This forecloses the grant of service connection on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. As reflected above, The Veteran’s Vietnam service is established, therefore his exposure to the designated herbicide agents is presumed. 38 C.F.R. § 3.307. 38 C.F.R. § 3.309(e). While early-onset peripheral neuropathy is an enumerated disease under 38 C.F.R. § 3.309(e), delayed-onset peripheral neuropathy is not. The Veteran’s first diagnosis of peripheral neuropathy occurred in 2014, many decades after the Veteran’s separation from active duty service. Nevertheless, a relationship between a disease and herbicide may still be factually established. Here, however, no competent and credible evidence has been submitted which asserts such a proximate cause for either bilateral upper extremity peripheral neuropathy or HTN. The Veteran contends that HTN is proximately due to, or aggravated by, service-connected PTSD with depressive disorder. However, the Veteran, as a layperson (as well as his lay informants), is not competent to render such a complex etiological opinion. See Jandreau, Routen, supra. Hence, the Board assigns diminished probative weight to this lay evidence. (Continued on the next page)   Here, the Board assigns considerable probative weight to June 2017 VA provider’s opinion. This medical professional reviewed the claims file; considered the lay evidence; and conducted an evaluation. Based upon the totality of this considerable body of evidence, this provider indicated that the Veteran’s current HTN is less likely than not proximately due to, or the result of, the Veteran’s service-connected PTSD with depressive disorder NOS. Moreover, this provider supported her negative nexus opinion as to service connection on a secondary basis with a rationale based on medical knowledge, underscoring that PTSD with depressive disorder NOS may cause transient increases in blood pressure but usually do not by themselves lead to persistent high blood pressure that leads to a clinical diagnosis of HTN. Thus, the Board finds that service connection for HTN is not warranted on a secondary basis. 38 C.F.R. § 3.310; Allen, supra. The preponderance of the evidence is against the Veteran’s 5 service connection claims; there are no doubts to be resolved. See 38 U.S.C. § 5107(b); Gilbert, supra. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.