Citation Nr: 20011250 Decision Date: 02/11/20 Archive Date: 02/11/20 DOCKET NO. 14-28 280 DATE: February 11, 2020 ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II, associated with agent orange exposure, is granted. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities (PN BUE, PN BLE), to include as secondary to service-connected diabetes mellitus, type II, associated with agent orange exposure, is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his hypertension was proximately due to and aggravated by his service-connected diabetes mellitus, type II. 2. The preponderance of the evidence of record is against finding that the Veteran had PN BUE or PN BLE at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2019). 2. The criteria for service connection for PN BUE and PN BLE, to include as secondary to service-connected diabetes mellitus, type II, are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to June 1969. Sadly, the Veteran passed in July 2019, during the pendency of his appeal, and his widow filed a timely request to be substituted as the appellant in his place. 38 U.S.C. § 5121A; Breedlove v. Shinseki, 24 Vet. App. 7 (2010). The AOJ has recognized the Veteran’s surviving spouse on a substituted basis. See October 2019 Correspondence. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran filed a timely notice of disagreement (NOD) in March 2011, and in July 2014, the RO issued a statement of the case. The Veteran perfected his substantive appeal in August 2014. In June 2019, the RO issued a supplemental statement of the case and in August 2019 the Board dismissed the issues due to lack of jurisdiction over the claims. The matters are again before the Board for appellate review. In his substantive appeal, the Veteran requested a video conference hearing before a Veterans Law Judge (VLJ); however, the appellant withdrew the request for a hearing in a January 2020 Statement. Therefore, the Veteran’s request for a Board hearing is considered withdrawn and the Board may proceed with its review on the present record. Service Connection Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted through the application of statutory presumptions for chronic conditions. See 38 C.F.R. §§ 3.303(b), 3.309(a) (2019); see also 38 U.S.C. §§ 1112, 1137 (2012). First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service. 38 C.F.R. § 3.303(b). In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. § 3.307(a)(3) (2019). The application of these presumptions operates to satisfy the “in-service incurrence or aggravation” element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted. Additionally, 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) (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2019). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. In the case of veterans who have been exposed to an herbicide agent during active service, presumptive service connection is available for certain listed diseases. 38 C.F.R. § 3.309(e) (2019). Relevant to the instant case, hypertension and PN BUE and PN BLE are not listed among the diseases for which presumptive service connection is available based on herbicide exposure. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be 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. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Additionally, service connection may be granted on a secondary basis. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2018). To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012). 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II, associated with agent orange exposure. The appellant is seeking service connection for the Veteran’s hypertension. Generally, she contends that the Veteran’s hypertension is related to service in Vietnam. Alternatively, the appellant asserts that the Veteran’s hypertension was proximately caused or aggravated by his service-connected diabetes mellitus, type II. See September 2012 Statement in Support of Claim; May 2010 Statement in Support of Claim. Following a review of the evidence of record, the Board finds that entitlement to service connection for hypertension is warranted. As the evidence supports a finding that the Veteran is entitled to service connection on a secondary basis, this analysis will primarily focus on a secondary theory of service connection. Prior to passing, the Veteran had a diagnosis of hypertension. The record also establishes that the Veteran was service connected for diabetes mellitus, type II associated with herbicide exposure. Therefore, the first and second elements of secondary service connection have been met and the salient question is whether the Veteran’s hypertension was related to his service-connected diabetes mellitus, type II. See May 2019 VA examination; October 2009 Rating Decision. Regarding the third element of service connection the Veteran was afforded a VA examination in August 2009 and diagnosed with essential hypertension. The examiner based his diagnosis on the Veteran’s reports of dizziness and fatigue and on a physical examination revealing high blood pressure. With regard to a nexus between hypertension and diabetes mellitus, the examiner opined that essential hypertension is aggravated by diabetes because it is a macrovascular complication of diabetes mellitus. The Board finds the August 2009 medical opinion highly probative of a positive nexus between the Veteran’s current disability and a service-connected disability because it not only contains a clear conclusion with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Further, the medical opinion is supported by a subsequent May 2019 VA examination. Although the May 2019 examiner does not provide an opinion on either direct or secondary service connection, he does state that after review of medical evidence, there is insufficient evidence in the records to support a determination of a baseline level of severity of the Veteran’s hypertension condition. Review of the record also reveals July 2010 and November 2016 VA medical opinions providing negative nexus opinions. The July 2010 examiner opined that the Veteran’s hypertension was not secondary to diabetes mellitus. His rationale was that based on a medical review and current clinical findings, it was impossible to relate hypertension and diabetes mellitus. The November 2016 VA examiner similarly opined that it was less likely than not that the Veteran’s hypertension was incurred in or due to active service. His rationale was based on the Veteran’s initial 2004 diagnosis of hypertension occurring approximately 35 years post service and that the Veteran’s STRs did not reveal a diagnosis of hypertension during active service. The Board finds the July 2010 and November 2016 VA medical opinions inadequate for adjudicative purposes. Indeed, the conclusory statements provided by both examiners fail to provide sufficient rationales that contains clear explanations and supporting data. Specifically, the July 2010 VA examiner does not reconcile his opinion with the contrary opinion in the claims file provided by August 2009 VA examiner. In addition, the November 2016 VA examiner fails altogether to address secondary service connection. As such, the Board finds both the July 2010 and November 2016 VA medical opinions of little probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Based on the foregoing, the most probative evidence in the record supports a finding that the Veteran’s hypertension was aggravated by a service-connected disability. In the Veteran’s August 2009 VA examination, the Veteran was diagnosed with a hypertension and the examiner opined that it was aggravated by diabetes mellitus, the Veteran’s service-connected disability. As such, and with resolution of all reasonable doubt in the Veteran’s favor, the Board finds that service connection for hypertension is warranted and the claim is granted. See 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. 2. Entitlement to service connection for PN BUE and PN BLE, to include as secondary to service-connected diabetes mellitus, type II, associated with agent orange exposure. The appellant is seeking service connection for the Veteran’s PN BUE and PN BLE. Specifically, the appellant claims that the Veteran has current disabilities that are related to his service in Vietnam or are secondary to the Veteran’s service-connected diabetes. See September 2012 Statement in Support of Claim; May 2010 Statement in Support of Claim. As a preliminary matter, as noted above, in the case of veterans who have been exposed to an herbicide agent during active service, presumptive service connection is available for certain listed diseases. PN BUE and PN BLE are not listed among the diseases for which presumptive service connection is available based on herbicide exposure. Therefore, presumptive service connection is not applicable in this case. Reviewing the record, with regard to the first element of service connection, the evidence does not support that the Veteran has present diagnoses of PN BUE or PN BLE. The Veteran’s medical treatment records do not contain a diagnosis of PN BUE or PN BLE. Rather, a March 2016 private treatment record documenting a neurological examination revealed negative symptoms of numbness, tremors, seizures, tingling, and fainting. Likewise, a separate March 2016 VA treatment record documents reported of left leg and ankle swelling and complaints of peripheral neuropathy. On examination, the Veteran denied loss of sensation, pain down the back of leg, and weakness. No diagnosis of peripheral neuropathy was noted. In August 2009, the Veteran appeared for an in-person VA examination. The Veteran reported progressive loss of strength and tingling in arms and legs. On examination, no ischemic limb pain or persistent coldness was noted. Peripheral nerve involvement was not evident during examination. A neurological exam of the BUEs and BLEs revealed sensory and motor function within normal limits. No PN BUE or PN BLE was found. The examiner explained there were no findings of secondary complications diabetes related to peripheral arteries or to neurological system. In a subsequent July 2010 VA examination, the Veteran reported diagnoses of PN BUE and PN BLE in addition to tingling, numbness, abnormal sensations and pain. On examination there was no anesthesia, weakness of the affected parts or paralysis of the affected parts. The Veteran reported that he had not sought treatment. The examiner concluded that there was no evidence of peripheral nerve involvement. As noted above, to establish a right to compensation for a present disability on a direct basis, the Veteran must show the following Shedden elements: (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); Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). Here, with respect to the crucial Shedden element (1), the weight of the evidence of record does not demonstrate that PN BUE or PN BLE existed at any time during the course of the appeal. Because the Veteran did not have current diagnoses of PN BUE or PN BLE, the Board finds that service connection for these claims must be denied. In making this determination, the Board has considered the Veteran’s reports of a diagnosis and reports of pain and tingling in his arms and legs. The Board acknowledges that the Veteran is competent to testify as to observable symptomatology; for example, numbness in his arms and legs. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay assertions, however, do not constitute a competent clinical diagnosis of an existing disability. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). As a result, the Veteran’s lay assertions in this case cannot constitute competent medical evidence in support of the claim. (Continued on the next page)   As such, the medical evidence of unequivocally shows that the Veteran was not diagnosed with PN BUE or PN BLE at any time during the course of the appeal and the claims must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, 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.