Citation Nr: 20006428 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 13-08 466 DATE: January 27, 2020 ORDER Service connection for right lower extremity peripheral neuropathy is denied. Service connection for left lower extremity peripheral neuropathy is denied. Service connection for right upper extremity peripheral neuropathy is denied. Service connection for left upper extremity peripheral neuropathy is denied. Entitlement to an effective date earlier than August 31, 2010, for the grant of Dependents’ Educational Assistance (DEA) benefits under Chapter 35, Title 38, of the United States Code, is denied. REMANDED Service connection for hypertension is remanded. FINDINGS OF FACT 1. Prior to August 31, 2010, a permanent and total disability rating was not in effect. 2. The Veteran does not have right lower extremity peripheral neuropathy. 3. The Veteran does not have left lower extremity peripheral neuropathy. 4. The Veteran does not have right upper extremity peripheral neuropathy. 5. The Veteran does not have left upper extremity peripheral neuropathy. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to August 31, 2010 for entitlement to DEA benefits are not met. 38 U.S.C. §§ 1155, 3500, 3501, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.340, 3.341, 3.400, 3.401. 2. The criteria for service connection for right lower extremity peripheral neuropathy, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309. 3. The criteria for service connection for left lower extremity peripheral neuropathy, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309. 4. The criteria for service connection for right upper extremity peripheral neuropathy, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309. 5. The criteria for service connection for left upper extremity peripheral neuropathy, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1968 to May 1971, with approximately a year of service in Vietnam. He was an aircraft repairman. He appeals July 2011 and August 2012 rating decisions. In October 2019, he testified at a hearing before the undersigned Veterans Law Judge (VLJ). The Veteran, who is represented by an accredited service organization, elected to proceed unrepresented at the hearing. The VLJ clarified the issues on appeal; clarified the concept of service connection and effective date for Chapter 35 claims; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran’s claims and inquired as to the existence of potential outstanding records. Thus, the actions of the VLJ comply with 38 C.F.R. § 3.103. Effective Dates The Veteran seeks an effective date prior to August 31, 2010 for the award of DEA chapter 35 benefits. He argues that the effective date should be years earlier, related to his manifestations of ischemic heart disease that have been evaluated in a staged rating. See, generally, October 2019 testimony from Veteran. He has been granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) effective August 31, 2010; DEA chapter 35 benefits have been granted based on that grant, also from August 31, 2010. The RO found that was the date he became permanently and totally disabled. A review of the relevant procedural and medical history is required to best understand this case. The Veteran has a history of heart ischemia, atrial flutter and six coronary artery bypass surgeries (CABG) dating from 1998. In a September 2011 rating decision, service connection for ischemic heart disease (IHD) and a 60 percent rating for that disability, effective August 31, 2010, was granted. It was noted that the grant was based on the Veteran’s service in Vietnam, and IHD being a presumptive disease associated with herbicide exposure. The RO explained that the effective date of benefits was the day VA law was amended to include IHD as part of the disabilities associated with exposure to herbicides, since this claim was received within one year from date of VA law and the evidence of record shows treatment for, and a diagnosis of IHD prior to, or by, August 31, 2010. TDIU was considered but found to be not warranted at that time, according to the rating decision. Later that month, the Veteran stated he wished to claim TDIU. He submitted a VA 21-8940, TDIU application, in October 2011. In an August 2012 rating decision, the RO granted (1) an earlier effective date for service connection for IHD and a 100 percent rating, both now effective from December 7, 1998 with the IHD rated 60 percent from August 31, 2010, (2) service connection for left vertex meningioma, cognitive impairment, brain white matter ischemic changes with an evaluation of 60 percent effective September 27, 2011, (3) special monthly compensation based on housebound criteria from September 27, 2011, and (2) TDIU and basic DEA eligibility chapter 35 benefits from August 31, 2010. The combined total rating was 100 percent from December 7, 1998, 60 percent from August 31, 2010 and 80 percent from September 27, 2011. The RO stated that, during a longitudinal review, they found a claim submitted through VA Form 21-526 that was received on January 14, 1999, stemming from hospital treatment for coronary artery disease and status post coronary artery bypass graft with six vessel and catherization with three vessel disease from December 7, 1998 to December 18, 1998, which is considered as an informal claim for disability compensation. This claim was formalized on January 14, 1999 and was construed as a claim of service connection for IHD for Nehmer purposes. Based on a review of the evidence listed below, the RO found the earlier effective date for service connection and the higher rating for that period of time for IHD, was warranted. The RO explained that the Veteran met the 100 percent criteria from December 7, 1998 but evaluation of IHD was 60 percent effective August 21, 2010, based on the VA Disability Benefits Questionnaire for IHD examination dated in September 2011, reporting only continuous medication for this condition and history of myocardial infarction, coronary bypass surgery. This rating was noted to be continued despite an April 2012 DBQ showing some but not sustained improvement. The RO explained that the evaluation remained 60 percent as a protected evaluation. The discussion as to TDIU involved the combined effects of the neurologic (brain and cognitive) condition as well as the heart condition, as the heart condition was noted to not interfere with all work. In October 2016, service connection and a 70 percent rating were granted for unspecified anxiety disorder from May 25, 2011. The combined total rating was modified to 100 percent from December 7, 1998, 60 percent from August 31, 2010, 90 percent from May 25, 2011 and 100 percent from September 27, 2011. However, TDIU and Chapter 35 benefits remained effective from August 31, 2010. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). However, basic eligibility for DEA exists if a veteran has a permanent, total service-connected disability. 38 U.S.C. §§ 3500, 3501. A total disability may be assigned where the veteran’s service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340 (b). The effective date for the award of DEA benefits is August 31, 2010, the same date as the award of TDIU. The TDIU effective date is not on appeal. The RO determined that a permanent, total service-connected disability occurred on that date and not before based clearly and unambiguously on TDIU. While the Board appreciates the Veteran’s argument at the hearing, that the 100% from December 1998 and the 60%/TDIU from August 31, 2010 effectively create a continuous period, it must ultimately disagree with his argument. Here, the RO’s reasoning in August 2012 was clearly that the degree of impairment from the IHD condition was subject to improvement despite the rating being ‘protected’. It was not assessed as permanent and total from December 7, 1998 and indeed the evidence does not suggest it should have been. The evidence is consistent with the fact that, schedularly, IHD improved as of August 31, 2010. TDIU was awarded from August 31, 2010 based on combined effects of the IHD and the brain disability. DEA benefits may not be awarded prior to the effective date of an award of a permanent and total disability rating. Therefore, the Veteran is not entitled to an effective date earlier than August 31, 2010, for entitlement to DEA benefits. 38 U.S.C. §§ 3501, 3510. Service Connection The Veteran contends that he has bilateral upper and lower peripheral neuropathy due to service, including exposure to herbicide in Vietnam, or service-connected disability. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110, 1131. In general, 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection is also warranted for a disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). Service connection based on exposure to designated herbicide agents will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time. The diseases associated with herbicide exposure for purposes of this presumption include early-onset peripheral neuropathy. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309. For the presumption to apply, this type of peripheral neuropathy must become manifest to a degree of 10 percent or more within one year after the date of last exposure to the herbicide. 1. Service connection for right lower extremity peripheral neuropathy is denied. 2. Service connection for left lower extremity peripheral neuropathy is denied. 3. Service connection for right upper extremity peripheral neuropathy is denied. 4. Service connection for left upper extremity peripheral neuropathy is denied. The issue for the Board is whether the Veteran has a current upper or lower extremity peripheral neuropathy that began during service or is at least as likely as not related to an in-service injury or disease or is related to presumed herbicide exposure in Vietnam. The Board concludes that the Veteran does not have an upper or lower extremity peripheral neuropathy and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The competent evidence fails to show current disability. First, service treatment records reflect no complaints or findings of peripheral neuropathy. Upper and lower extremities as well as neurologic evaluations were normal during the March 1971 clinical examination at separation. In an August 2016 VA disability benefits questionnaire (DBQ) for peripheral nerve conditions, the VA physician who reviewed the entire record found no relevant current disability and no diagnosis; there was no peripheral neuropathy as to the upper or lower extremities. The examiner also confirmed there were no complaints, symptoms or suggestions of disability in service or within a year of service separation either. Treatment records during the pendency of the claim also do not show diagnosis or complaints or findings contrary to the VA examiner’s opinion. The competent evidence is against finding current upper or lower extremity peripheral neuropathy. Due to the absence of proof of a present disability, there is no valid claim for service connection on any basis. Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The existence of disability such as peripheral neuropathy is not subject to lay observation. It requires knowledge of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Hence, the opinion of the Veteran in this regard is not competent in this case. The Board acknowledges that he indeed may report his perception of symptoms. These were considered by the VA physician in rendering the opinion as to no current diagnosis. There is simply no probative evidence of current disability. In weighing the evidence, the Board finds that the medical evidence of record, and the lack of competent support for a current disability, preponderates against the claim. The VA physician’s 2016 opinion is probative, because it is based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board adopts the opinion for the reasons and bases, noting that the examiner has fairly considered the material evidence of record. Wray v. Brown, 7 Vet. App. 488 (1995).   REASONS FOR REMAND Service connection for hypertension is remanded. The Veteran is generally seeking service connection by any available theory. An addendum to the August 2016 the examination is warranted in light of the theory that hypertension may be due to conceded Agent Orange exposure in Vietnam. A recent (November 2018) and relevant study by the National Academy of Sciences (NAS), Veterans and Agent Orange: Update 11 (2018), found sufficient evidence of an association for hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. Hypertension has been upgraded from its previous classification in the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. The NAS study was clearly not addressed in the 2016 examination. The matter is REMANDED for the following action: Return the file to the examiner who authored the VA August 2016 hypertension opinion or a suitable substitute clinician for review. The examiner should opine whether the Veteran’s hypertension is at least as likely as not related to in-service herbicide agent exposure. The examiner should consider the NAS 2018 conclusion that hypertension has been upgraded from its previous classification in the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. A complete rationale for all opinions is requested. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.