Citation Nr: 20011959 Decision Date: 02/12/20 Archive Date: 02/12/20 DOCKET NO. 14-34 560A DATE: February 12, 2020 ORDER Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to service-connected diabetes mellitus or herbicide agent exposure, is granted. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service-connected diabetes mellitus or herbicide agent exposure, is granted. REMANDED Entitlement to service connection for hypertension, to include as secondary to herbicide agent exposure, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s peripheral neuropathy of the bilateral upper extremities is proximately due to his service-connected diabetes mellitus. 2. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s peripheral neuropathy of the bilateral lower extremities is proximately due to his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to service-connected diabetes mellitus or herbicide agent exposure, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service-connected diabetes mellitus or herbicide agent exposure, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1988 to July 1990. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Historically, these matters were remanded by the Board in November 2015, then returned to the Board in August 2017, at which point the Board denied claims for diabetes mellitus, peripheral neuropathy of the bilateral upper and lower extremities, and hypertension. Subsequently, the Veteran appealed the decision to the Court of Appeals for Veterans Claims, which issued a Joint Motion for Remand (JMR) in February 2018 that vacated the August 2017 Board decision and remanded the claims. Thereafter, consistent with the terms of the JMR, the Board conceded that the Veteran was exposed to herbicide agents during his active duty deployment to Johnston Island, granted service connection for diabetes mellitus, and remanded the claims for peripheral neuropathy and hypertension for additional development in a May 2018 decision. On remand, the RO was instructed to arrange for the Veteran to undergo VA examinations for his peripheral neuropathy and hypertension claims. After completing this development, the RO issued an October 2018 Supplemental Statement of the Case that once again denied service connection for peripheral neuropathy and hypertension. The matters now return to the Board. The Board notes that the Veteran also has on appeal issues of increased ratings for diabetes mellitus type 2 and residuals of a TBI, and entitlement to a total disability rating based on individual unemployability by reason of service-connected disabilities (TDIU). The Board remanded the issues in September 2019. The development ordered in the Board remand has not yet been completed and that it appears that the AOJ is in the process of conducting the ordered development. These issues have not been recertified to the Board and are therefore not presently before the Board. Finally, the Board also notes that the Veteran appealed issues of entitlement special home adaptation grant and specially adapted housing. A Statement of the Case (SOC) was issued in November 2019 and the Veteran did not perfect an appeal of either issue by filing a substantive appeal (VA Form 9). As such, these claims are not before the Board. 1. – 2. Service connection for peripheral neuropathy of the bilateral upper and lower extremities. The Veteran contends that his peripheral neuropathy of the bilateral upper and lower extremities is secondary to either his service-connected diabetes mellitus or herbicide exposure on Johnston Island, which the Board has conceded. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three 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). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Here, the Veteran has already been awarded service connection for diabetes mellitus secondary to conceded herbicide agent exposure. The evidence of record also indicates that the Veteran has undergone two VA examinations for peripheral neuropathy in September 2018 and March 2019. The September 2018 VA examiner opined that the Veteran did not have and had never been diagnosed with peripheral neuropathy. The September 2018 VA examiner indicated the Veteran reported pain and tingling in his upper and lower extremities since approximately 2013 or 2014 and acknowledged that “neuropathy” is indicated in several of his post-service treatment notes, but stated that no etiology, objective findings, or treatment for this condition is noted in the Veteran’s records. Nonetheless, the VA examiner noted that the Veteran had symptoms attributable to peripheral neuropathy on examination, such as moderate intermittent pain in the upper extremities and severe intermittent pain in the lower extremities, as well as parasthesia, numbness, reduced or absent reflexes, and decreased sensory examination results. Ultimately, however, the September 2018 VA examiner opined that the Veteran’s diffuse reduction in sensory and motor function was “atypical” for peripheral neuropathy associated with diabetes, and that a diagnosis could not be confirmed absent additional testing, which the Veteran refused. In an October 2018 brief, the Veteran’s representative has argued that the September 2018 VA examination is inadequate. More specifically, his representative argues that the September 2018 VA examiner erred by ignoring the Veteran’s VA treatment records, as well as the Board’s August 2017 decision, which conceded a diagnosis of peripheral neuropathy. Having carefully reviewed the record, the Board agrees. Indeed, the Veteran’s VA treatment records reflect treatment for neuropathy and a prescription for gabapentin to treat it, as well as official as diagnoses of neuropathy from multiple treatment providers. An opinion that fails to consider all relevant evidence of record or that is based on an inaccurate factual premise is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458 (1993). As such, the probative value of the September 2018 VA examination, if any, is diminished. Following the September 2018 VA examination, the RO obtained another VA examination in March 2019. Confusingly, although the March 2019 VA examiner states in Section I of the examination report that the Veteran does not have and has never been diagnosed with peripheral neuropathy, the examiner also states that there is a diagnosis of peripheral neuropathy in the Veteran’s bilateral upper and lower extremities. The March 2019 VA examiner noted symptoms similar to those reported in the September 2018 VA examination, such as paresthesia, numbness, decreased reflexes, and decreased sensation to light touch, position sensation, vibration sensation, and cold sensation testing. Then, in Section V of the examination report, the March 2019 VA examiner reported that the Veteran had bilateral upper and lower extremity diabetic peripheral neuropathy. Having considered the entirety of the examination report, the Board affords the benefit of the doubt to the Veteran and assumes that the March 2019 VA examiner merely made a clerical error by checking “no” in Section I, regarding a current diagnosis. Ultimately, the Board finds that the evidence of record weighs in favor of granting service connection for peripheral neuropathy of the bilateral upper and lower extremities as secondary to service-connected diabetes mellitus. Indeed, the March 2019 VA examination indicates that the Veteran has diabetic peripheral neuropathy. This finding is supported by the Veteran’s VA treatment records, which also indicate assessments of diabetic neuropathy and diabetes with neuropathy. See, e.g., February 2019 VA Primary Care Provider Note; April 2017 VA Podiatry Consultation. Resolving all reasonable doubt in favor the Veteran, the Board finds that service connection is thus warranted. Gilbert v. Derwinksi, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran also contends that his hypertension is secondary to his conceded herbicide agent exposure. In its May 2018 decision, the Board instructed the RO to schedule the Veteran for an examination that would consider whether hypertension was secondary to herbicide agent exposure. In the September 2018 VA examination for hypertension, the VA examiner opined that it was less likely as not that the Veteran’s hypertension was caused by his active duty service, including his conceded herbicide agent exposure. The VA examiner explained that the Veteran’s hypertension was not formally diagnosed until 2002, over 10 years after separating from service, and that direct service connection was thus not supported by the evidence of record. The VA examiner also stated that “several” medical authorities have established that the risk factors for hypertension included increased age, obesity, family history, and lifestyle choices, while hypertension has not been established as a risk factor. Additionally, the VA examiner cited the 2012 National Academy of Sciences (NAS) Agent Orange Update, which reports that there is “limited or suggestive evidence” of an association between exposure to herbicides and hypertension. Although there was limited evidence of an association between hypertension and Agent Orange exposure, the VA examiner noted that “a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence.” For this reason, the VA examiner opined that the well-established risk factors for hypertension weighed against the possible impact of hypertension exposure, and that the Veteran’s obesity more likely contributed to developing hypertension than Agent Orange exposure. The Board notes that while hypertension is not on the list of diseases presumptively associated with exposure to herbicide agents, a more recent study by NAS released on November 15, 2018, indicates that “[t]he latest in a series of congressionally mandated biennial reviews of the evidence of health problems that may be linked to exposure to Agent Orange and other herbicides used during the Vietnam War found sufficient evidence of an association for hypertension.” NAS, Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans That May Be Linked to Agent Orange Exposure During Vietnam War (Nov. 15, 2018), available at http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137 (last visited October 10, 2019). Given the timing of the September 2018 VA examination, the examiner would not have been able to review this new medical literature. As such, the Board finds that another remand is necessary to obtain an addendum opinion that considers this relevant recent medical research. The matter is REMANDED for the following action: (This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) Obtain an addendum opinion on the etiology of the Veteran’s hypertension. The examiner must review the Veteran’s claims file in its entirety, including a copy of this remand. Following a complete review of the record, the examiner is requested to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension began during or is etiologically related to his active duty service, to include as due to conceded herbicide agent exposure. The examiner is requested to include a rationale for all opinions rendered, citing to supporting clinical data and medical literature as appropriate. The examiner is informed that an opinion based on the fact that a claimed disease is not on VA’s list of recognized diseases associated with herbicide agent exposure will be deemed inadequate. The examiner’s attention is drawn to the 2018 study provided by the National Academy of Sciences finding that “[t]he latest in a series of congressionally mandated biennial reviews of the evidence of health problems that may be linked to exposure to Agent Orange and other herbicides used during the Vietnam War found sufficient evidence of an association for hypertension.” See National Academy of Science, Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans That May Be Linked to Agent Orange Exposure During Vietnam War (Nov. 15, 2018). If the examiner is unable to provide any requested opinion without resorting to speculation, he or she must indicate why this is so. Specifically, the examiner must indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). If the reason for speculation is that the particular examiner does not possess the expertise, another examiner who does must provide the opinion in question. N. NELSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, 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.