Citation Nr: 20011900 Decision Date: 02/13/20 Archive Date: 02/12/20 DOCKET NO. 19-17 417 DATE: February 13, 2020 ORDER Entitlement to an effective date prior to August 9, 2017 for service connection for prostate cancer is denied. Entitlement to service connection for hypertension (HTN), to include as due to Agent Orange exposure, is denied. Entitlement to service connection for peripheral neuropathy, left upper extremity, to include as due to Agent Orange exposure, is denied. Entitlement to service connection for peripheral neuropathy, right upper extremity, to include as due to Agent Orange exposure, is denied. Entitlement to service connection for peripheral neuropathy, left lower extremity, to include as due to Agent Orange exposure, is denied. FINDINGS OF FACT 1. The RO received the Veteran’s claim for service connection for prostate cancer on August 9, 2017. 2. 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 otherwise attributable to service. 3. Peripheral neuropathy of the left upper extremity did not manifest during active service or within one year of separation and was not caused by any aspect of service. Peripheral neuropathy of the left upper extremity is not otherwise attributable to service. 4. Peripheral neuropathy of the right upper extremity did not manifest during active service or within one year of separation and was not caused by any aspect of service. Peripheral neuropathy of the right upper extremity is not otherwise attributable to service. 5. Peripheral neuropathy of the left lower extremity did not manifest during active service or within one year of separation and was not caused by any aspect of service. Peripheral neuropathy of the left lower extremity is not otherwise attributable to service. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to August 9, 2017 for the grant of service connection for prostate cancer have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.156(c); 3.400 (2019). 2. The criteria for entitlement to 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 (2019). 3. The criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity 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 (2019). 4. The criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity 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 (2019). 5. The criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity 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 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Marine Corps from November 1968 to October 1970 including service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal of June 2016 and September 2017 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Threshold Issue Veteran’s counsel has submitted that “no formal claim for benefits need be filed by a veteran when reasonably raised issues like TDIU arise from in connection (sic) with a claim pending before the VA.” See October 24, 2017 NOD, p, 4. While statement applies to increased rating claims under Rice v. Shinseki, 22 Vet. App. 447 (2009), it does not apply in matters such as the claims for service connection before the Board. Counsel bases this argument on Deshotel v. Nicholson, 457 F. 3d 1258 (Fed. Cir. 2006). In Deshotel, the Federal Circuit found that where a Veteran files more than one claim with the RO at the same time and the RO’s decision acts (favorably or unfavorably) on one of the claims, but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run. The proper remedy under such circumstances is to file a timely notice of disagreement as to the RO’s failure to address that claim. Here, the Veteran’s respective Supplemental Claims for Compensation (VA Forms 21-526b) do not make even a subtly nuanced claim for entitlement to a TDIU. The Veteran did not cite any evidence to support a reasonably raised issue of a TDIU and the Board finds none. Deshotel is inapposite herein, as a claim for TDIU was not put forth. Therefore, the Board will not address entitlement to a TDIU. Earlier Effective Dates The Veteran contends that he is entitled to an effective date prior to August 9, 2017 for service connection for prostate cancer. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). Prior to March 24, 2015, VA recognized formal and informal claims. A claim is defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). An informal claim is any communication or action indicating intent to apply for one or more benefits and must identify the benefit sought. 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims both formal and informal for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Although a claimant need not identify the benefit sought “with specificity,” see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the Veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). VA must perform a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). A review of the evidence of record discloses that VA received the Veteran’s Supplemental Claim for Compensation (VA Form 21-526b) on August 9, 2017. The Board has scrutinized the evidence of record and finds that there are neither informal claims nor written articulations on the part of the Veteran to seek entitlement to service connection for prostate cancer prior to August 9, 2017. Turning to the issue of when the respective entitlement arose, VA received private medical reports from D. Pathology Associates and C. Health System on August 30, 2017. In the former report, a clinician provided a final pathologic diagnosis of prostatic adenocarcinoma on July 25, 2017. In the latter report, a clinician provided a radiology report with an admitting/ordering diagnosis of malignant neoplasm of prostate on August 7, 2017. The Veteran further argues that that he is entitled to an earlier effective date under the Nehmer class action and implementation rules (Nehmer v. United States Department of Veteran’s Affairs; 38 C.F.R. § 3.816). The evidence of record fails to disclose that the Veteran is a Nehmer class member because: (1) The Veteran had not been denied compensation for prostate cancer in a decision issued between September 25, 1985 and May 3, 1989; and (2) no earlier claim regarding service connection for prostate cancer was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989 and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease. See 38 C.F.R. § 3.816 (c)(1), (c)(2). The Veteran’s first—and only—claim seeking entitlement to service connection for prostate cancer dates from August 9, 2017. Therefore, an earlier effective date in accordance with liberalizing law or the Nehmer guidelines is not warranted. The Veteran’s claim for service connection for prostate cancer was received on August 9, 2017. This claim post-dates both the July 25, 2017 final pathologic diagnosis of prostatic adenocarcinoma and the August 7, 2017 radiology report with an admitting/ordering diagnosis of malignant neoplasm of prostate—the dates when entitlement arose. Even the most sympathetic mode of interpretation cannot discern “intent” in any evidence prior to the afore-noted date of the Veteran’s August 9, 2017 claim. See Bannon, Szemraj, both supra. Regulations require an effective date for service connection to be the date of claim or the date entitlement arose, whichever is later. Therefore, entitlement to an earlier effective date for the grant of service connection for prostate cancer must be denied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). Service Connection The Veteran contends that HTN; peripheral neuropathy, left upper extremity; peripheral neuropathy, right upper extremity; and peripheral neuropathy, left lower extremity were incurred in, or aggravated by, service. More specifically, the Veteran contends that these diseases are due to exposure to the designated herbicide agents in Vietnam. 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 HTN—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. 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). Service personnel records show that the Veteran served in the Republic of Vietnam during this period and is presumed to have been exposed to the herbicide agents. 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 Early-onset peripheral neuropathy is an enumerated disease under 38 C.F.R. § 3.309(e). Analysis In the Veteran’s October 7, 1970 Separation Report of Medical Examination, signed by the Veteran and military clinician, there are no indications of abnormal clinical evaluations of the vascular system; upper extremities, lower extremities, or neurological status. The Veteran certified that he informed the medical officer of all defects, injuries or illnesses and the medical officer noted none. Blood pressure was measured as 120/82 mmHg. Otherwise, the Veteran’s service treatment records (STRS) do not show complaints of, treatment for, or diagnoses of HTN; peripheral neuropathy, left upper extremity; peripheral neuropathy, right upper extremity; or peripheral neuropathy, left lower extremity. Moreover, STRs provide no guidance as to either subjective complaints or objective medical findings indicative of these disease entities. A review of 2008 VA ambulatory care records shows multiple notations of a history of HTN and associated prescribed medications. In August 2012, VA received a packet of private medical records. In October 2004, a provider indicated that the Veteran had a significant past history of HTN but no mention of peripheral neuropathy. Blood pressure was initially measured as 120/80 and later during treatment as 134/87 mmHg. A VA active problems list associated with the record of evidence in November 2012 includes HTN, noting the last treatment (or modification of treatment) occurred in May 2004. A review of VA treatment records from 2005 to 2015 disclose that clinicians provided diagnoses of HTN. Clinicians monitored the efficacy of prescribed medication and provided educational consultation. However, this decade of treatment records does not disclose complaint of, treatment for, or diagnoses of left upper extremity; peripheral neuropathy, right upper extremity; or peripheral neuropathy, left lower extremity. Moreover, these records do not show subjective complaints or objective medical findings indicative of any associated symptomatology. VA progress notes through 2016 are largely reflective of these points; however, the Veteran did subjectively complain of right thigh neuropathy in October 2016. Nevertheless, a competent medical diagnosis of such was not provided. In July 2016, VA received an addendum from the Veteran’s representative attached to the Veteran’s NOD. The representative stressed VA’s duties of sympathetic development and providing reasons and bases. The representative generally cited the requirements for rejecting inadequate examinations; “DeLuca failure;” Veteran’s (sic) lay statements; discounted favorable evidence; benefit of the doubt and burden of proof; missing medical records; negative evidence and mischaracterization of claims; medical treatises; implied denial of claims; and due process. The representative presented a listing of legal citations and generic commentary. However, the representative did not cite any specific shortcomings in VA’s duty to assist including the adequacy of development other than to disagree with the decision outcome. There was no analysis of how these identified criteria related specifically to the facts of the Veteran’s case. VA treatment records from 2017 and 2018 continue impressions of HTN (now qualified as benign essential hypertension). Clinicians continued to monitor the efficacy of prescribed medications. A review of the Veteran’s 2019 VA problems list continued to show benign essential hypertension, and the list indicates that last treatment (or modification of treatment) occurred in December 2015. In April 2019, VA received a packet of private medical treatment records from Dr. C.H. A review of these records discloses that treatment occurred in 2018. The Board has scrutinized Dr. H.’s clinical examination findings. As to HTN, Dr. C.H. indicated that the Veteran did have current essential HTN, noting an onset date of May 8, 2018. As to the Veteran’s claimed peripheral neuropathies of the extremities, Dr, C.H. did not provide any current diagnosis. Throughout these private medical records, Dr. C.H. noted that the Veteran’s neurological status indicated no weakness or numbness. Furthermore, according to Dr. H., sensation was grossly intact. This same month, VA received private medical records from Dr. J.H. A review of this provider’s records reveals an impression of essential HTN from July 2017. Dr. J.H. did not assign diagnostic impressions of either upper extremity peripheral neuropathies or lower extremity neuropathy. 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 peripheral neuropathy, left upper extremity; peripheral neuropathy, right upper extremity; or peripheral neuropathy, left lower extremity. Thus, establishing service connection on either a direct or presumptive basis is not warranted. See Shedden, supra; 38 C.F.R. §§ 3.307, 3.309. And, consequently, the herbicide exposure provisions of 38 C.F.R. § 3.307(a)(6)(iii) do not bear upon these matters. The Veteran is competent to report his sensed symptoms and while the Veteran’s sincerely believes that he has he has these disabilities, he has not reported them to his attending clinicians nor offered competent medical evidence to support these beliefs or that his sensed symptoms are manifestations of a chronic neurological disease. 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). Even if the Veteran has unreported symptoms, the weight of evidence is that they were not early onset. The Veteran has received a diagnosis of 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 predicates to support HTN. Here, the Board assigns considerable probative weight in the Veteran’s October 7, 1970 Separation Report of Medical Examination, which bears the signatures of the Veteran and military clinician, wherein there were no indications of abnormal clinical evaluations of the vascular system. Without an in-service incurrence, a nexus cannot be drawn to HTN. This forecloses a grant of service connection for HTN on a direct basis. See id. Moreover, the evidence of record fails to reveal a diagnosis of 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). Here, the Board notes that HTN is not an enumerated disease under this provision. 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 HTN. The Board recognizes the Veteran’s belief as to the etiology of current HTN. However, as a lay person, the Veteran lacks the competence to render a complex medical etiological opinion. See Jandreau, Routen, both supra. Hence, the Veteran’s subjective belief does not constitute competent medical evidence. The Veteran has not been provided with VA examinations and requests for medical opinions on the issue of direct causation or presumptive service connection (to include Agent Orange exposure) for either HTN or the claimed peripheral neuropathies. The evidence does not establish that the manifestations started in service or that the Veteran experienced an injury other than the presumed exposure to herbicide agents. The Veteran has not submitted or identified evidence to support the theory that herbicide exposure caused his hypertension. Additionally, the Veteran’s conclusory contentions about HTN and peripheral neuropathies are insufficient predicates to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F. 3d 1274, 1278 (2010). Here, the Veteran believes that the “genesis” of HTN and purported peripheral neuropathies are attributable to Agent Orange exposure. Nevertheless, the extensive VA and private treatment and clinical records, prepared by professional medical clinicians, do not suggest such an etiological relationship. The preponderance of the evidence is against the Veteran’s 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.