Citation Nr: 20033091 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 19-06 192A DATE: May 12, 2020 ORDER Entitlement to service connection for hypertension (HTN), to include as due to herbicide exposure or to service-connected disabilities, is denied. Entitlement to service connection for bilateral upper extremity peripheral neuropathy, to include as due to herbicide exposure or to service-connected diabetes mellitus type II (DM2), is denied. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as due to herbicide exposure or as due to serviced-connected DM2, is denied. Entitlement to special monthly compensation (SMC) based upon the need for regular aid and attendance is denied. FINDINGS OF FACT 1. 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, to include exposure to herbicides therein. HTN was not proximately caused by, or aggravated by, service-connected disabilities. 2. Bilateral upper extremity peripheral neuropathy is not shown by the record. 3. Bilateral lower extremity peripheral neuropathy is not shown by the record. 4. Prior to his death in August 2016, the Veteran was not so helpless prior to his death as to be in need of regular aid and attendance of another person as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection right for HTN have not been met. 38 U.S.C. § 1101, 1110, 1113, 1116,1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2019). 2. The criteria for entitlement to service connection for bilateral upper extremity peripheral neuropathy have not been met. 38 U.S.C. § 1101, 1110, 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2019). 3. The criteria for entitlement to service connection for bilateral lower extremity peripheral neuropathy have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1116, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2019). 4. Prior to the Veteran’s death in August 2016, the criteria for SMC based upon the need for regular aid and attendance of another person are not met. 38 U.S.C. § 1114(l) (2012); 38 C.F.R. §§ 3.350, 3.52 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from September 1962 to September 1966. The Veteran died in August 2016. The Veteran died in August 2016. The appellant is the surviving spouse and has been accepted as the Veteran’s substitute for purposes of processing this appeal to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This case has had a long and complex procedure, which the Board has described extensively its prior decisions. See October 17, BVA Decision; November 26, 2019 BVA Decision. In March 2020, the Agency of Original Jurisdiction (AOJ) issued a rating decision grating service connection for DM2 with erectile dysfunction, chronic kidney disease, to include renal failure, coronary artery disease, special monthly compensation based on loss of use of a creative organ, and special monthly compensation a the housebound level, and service connection for the cause of the Veteran’s death. As this decision represents a full grant of the claims previously on appeal, they are not before the Board at this time. The Board has reviewed the record of evidence comprehensively. Although the Board has an obligation to provide reasons and bases to support a decision, there is no requirement to discuss, in detail, all the evidence submitted by or on behalf of a Veteran or appellant. See Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, however, does not have to discuss each piece of evidence). The analysis below focuses on the most salient and the most relevant evidence—about what this evidence shows, or fails to show, about the issue on appeal. The appellant must not assume that the Board has overlooked pieces of evidence that are not discussed explicitly. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran or appellant). Service Connection The appellant contends that the Veteran warranted service connection for the above-noted disabilities. 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). 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). Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases—to include cardiovascular-renal disease and organic diseases of the nervous system—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). Further, VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era (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 C.F.R. § 3.307. In such circumstances, service connection may be granted on a presumptive basis for any disease listed in 38 C.F.R. § 3.309(e). "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. 38 C.F.R. § 3.307(a)(6)(iii). Recently, in Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019), the en banc Federal Circuit held that 38 U.S.C. § 1116 unambiguously expressed Congress' intent that those who served in the 12-nautical-mile territorial sea of the "Republic of Vietnam" are entitled to the presumption of herbicide exposure. As indicated in the AOJ’s January 2020 rating decision, the Veteran’s exposure to herbicides has been conceded. Early onset peripheral neuropathy is one of the diseases associated with herbicide exposure for purposes of the presumption. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309. However, for the presumption to apply, peripheral neuropathy must become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicide. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Analysis The Board finds the Veteran’s service treatment records instructive in these matters. Upon the Veteran’s September 1966 Report of Medical Examination, a clinician indicated normal clinical evaluations of the Veteran’s upper extremities; lower extremities; vascular system; and neurological status. This Report bears the signatures of the Veteran and the clinician. A review of other STRs fails to disclose complaints of, treatment for, and diagnoses of HTN; bilateral upper extremity peripheral neuropathy; or bilateral lower extremity peripheral neuropathy. Moreover, STRs fail to disclose complaints or treatment indicative of these disease entities. In January 2000, VA afforded the Veteran a VA hypertension screen. A clinician indicated that the Veteran was counseled to increase activity and to lose weight. At this time, HTN was not diagnosed. Upon an April 2002 diabetes mellitus examination, a VA clinician indicated that the Veteran denied any neurological symptoms, namely numbness or tingling. As to HTN, the clinician noted an history, further opining that the Veteran had the risk factors of heredity, obesity, and inactivity. September 2009 private treatment records from D., a private facility, indicate that the Veteran had a history of HTN, insulin dependent DM, congestive heart failure, and coronary artery disease. A clinician opined that the Veteran presented with a chief complaint of intermittent chest pain. These records provide no guidance as to any diagnosis of peripheral neuropathy. In an October 2010 VA progress note, a cardiologist reported that due to HTN, decreased LV systolic function, and elevated creatinine, the Veteran would be a candidate for an ACE inhibitor prescription drug rather than hydralazine. The cardiologist noted that this would be inappropriate if there had been prior documentation of worsening renal function with taking the former class of pharmaceutical, which this cardiologist indicated was not the case with the Veteran. Another cardiology consultation report of this same month noted that the Veteran had a history of systemic HTN, diabetes, and hyperlipidemia. The Board observes that many hundreds of pages of VA and private treatment records have been associated with the evidence of record, especially towards the end of the Veteran’s life. This is the third occasion in which the Board has had an opportunity to examine this heft of records. Here, the Board incorporates its past discussion of these respective records, inasmuch as they pertain to the instant issues on appeal. As noted above, the immediate analysis focuses on the most salient and the most relevant evidence—about what this evidence shows, or fails to show, about the specific issues on appeal. A review of VA treatment records from 2016 discloses that clinicians reported that the Veteran was prescribed medication to prevent chest pain, for both heart and HTN. These records provide no guidance as to any diagnosis of peripheral neuropathy. February 2016 private hospitalization records from St. M. disclose that the Veteran had hypertension, DM2, right kidney disease, coronary artery disease, chemotherapy-induced anemia, and lower extremity edema. These records provide no guidance as to any diagnosis of peripheral neuropathy. In March 2017, VA received 36 pages of private medical reports from M. Hospital. A review of these reports shows that providers indicated that the Veteran had HTN. Upon hospitalization in January 2013, a provider indicated that the Veteran was hypotensive because of sepsis. This provider also reported current diabetes; chronic obstructive pulmonary disease (COPD); and dyslipidemia with previous coronary artery disease. These records provide no guidance as to any diagnosis of peripheral neuropathy. With respect to the claimed peripheral neuropathy of the bilateral upper and lower extremities, in the absence of proof of a present disability there can be no valid claim. See Brammer, supra. While the Veteran is competent to report symptoms, a review of the record fails to demonstrate diagnoses of either bilateral upper extremity peripheral neuropathy or bilateral lower extremity peripheral neuropathy. Moreover, the competent evidence of record even fails to disclose subjectively endorsed symptoms of such, as noted above. As such, the possibility of establishing service for either of these claimed disease entities on any basis, to include as due to herbicide exposure or as secondary to service-connected disability, is foreclosed. Turning to the HTN claim, the present disability prong of establishing service connection is present. See Shedden, supra. To date, hypertension is not an enumerated disability entitled to presumptive service connection based on exposure to herbicide agents under 38 C.F.R. § § 3.309(e). However, service connection may still be awarded on a direct or secondary basis.. However, the evidence of record fails to disclose either an in-service predicate of incurrence for HTN, and the evidence does not a indicate a relationship between hypertension and herbicide exposure. Moreover, the evidence of record fails to show that HTN was diagnosed within one year of the Veteran’s separation from active duty service in September 1966. Without an in-service incurrence or diagnosis within one year of separation, a nexus cannot be drawn to HTN. Without this nexus to service, the possibility of establishing service connection either directly or presumptively is foreclosed. See id.; 38 C.F.R. §§ 3.307(a), 3.309(a). As far as granting service connection for HTN on a secondary basis, the competent medical evidence of record fails to disclose that HTN was diagnosed after the Veteran’s only service-connected disabilities, to include DM2; coronary artery disease; and chronic kidney disease. Moreover, no competent medical provider has indicated that HTN was proximately caused by, or aggravated by, the aforementioned disease entities. As such, the Board is left with the appellant’s sincere belief in such a theory of causation, which is far beyond the appellant’s knowledge, training, or expertise. See Jandreau, Routen, both supra. Consequently, the Board finds that there is simply no competent evidence to support a grant of service connection for HTN on a secondary basis. See Allen, supra. The appellant contends that the Veteran’s HTN was due to other service-connected disabilities. However, as a lay person, the appellant lacks the specialized training, medical prowess, or neurological and vascular expertise to render such etiological opinions as to proximate causation. See Jandreau, Routen, both supra. Stated another way, the appellant’s sincerely held belief in onset or causation by active duty is not competent evidence, as it is far outside of her area of knowledge and expertise. As such, the Board assigns diminished probative weight to the appellant’s lay contentions. The preponderance of the evidence is against the Veteran’s three service connection claims; there are no doubts to be resolved. See 38 U.S.C. § 5107(b). SMC due to Regular Aid and Assistance Under 38 U.S.C. § 1114(1), SMC is payable if, as the result of service-connected disability, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(1); 38 C.F.R. § 3.350(b). Need for aid and attendance means being so helpless as to require the regular aid attendance of another person. 38 C.F.R. § 3.350(b). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: inability of the claimant to dress and undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. It is not required that all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present for a grant of SMC based on need for aid and attendance). For the purposes of 38 C.F.R. § 3.352(a), “bedridden” will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. “Bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). At present (that is, after the adjudication of the appellant’s other claims which the RO and the Board adjudicated prior to this decision), the appellant, as the Veteran’s substitute, is in receipt of a 100 percent disability rating from May 8, 2001 through the Veteran’s demise in August 2016. (Coronary artery disease at 100 percent; chronic kidney disease at 100 percent; and DM2, with erectile dysfunction and left eye retinopathy, at 20 percent.) Additionally, the appellant is in receipt of SMC under 38 C.F.R. § 3.350(i) on account of the Veteran’s loss of a creative organ from May 8, 2001 and SMC under 38 C.F.R. § 3.350(i) on account of the Veteran’s coronary artery disease being rated as 100 percent disabling with an additional service-connected disability of chronic kidney disease, independently ratable at 60 percent ot more from November 13, 2001. Upon review of the extensive medical evidence of record, there is simply no indication that these service-connected disabilities rendered the Veteran incapable of dressing and undressing himself; keeping himself ordinarily clean and presentable; feeding himself through loss of coordination of the upper extremities or through extreme weakness; or tending to the wants of nature; or incapacity, physical or mental. Moreover, the evidence of records fails to disclose that the Veteran required care and assistance on a regular basis to protect himself from the hazards or dangers incident to his daily environment. The Board takes note of the fact that the Veteran was compensated at 100 percent for each respective period of hospitalization required to treat service-connected disabilities. The record includes a VA determination as to whether the Veteran qualified for hospice care. In this determination, a VA consultant indicated that the Veteran did have a care giver and did meet hospice criteria for nonservice-connected cancer. However, the Veteran was not undergoing chemotherapy or radiotherapy. The hospice care sought was only palliative, as the Veteran’s left expectancy was 6 months or less. Even at this somewhat terminal stage in the Veteran’s disease process. The VA consultant did not indicate that the Veteran was so helpless as to require the regular aid attendance of another person. Moreover, this determination pertained to the Veteran’s non-service cancer and did not indicate that a hospice referral was warranted, in any way whatsoever, by any incapacity caused by coronary artery disease; chronic kidney disease; or DM2, with erectile dysfunction and left eye retinopathy. The appellant contends that the Veteran was entitled to SMC based upon the need for regular aid and assistance of another person. However, as a lay person, she is not competent to render such a complex medico-environmental determination. See Jandreau, Routen, both supra. Here, the Board notes that the appellant has not identified evidence or produced additional competent medico-environmental evidence to show why such SMC was warranted. Here, the Board informs the appellant, and trenchantly reminds counsel, that Veterans and appellants still ultimately bear some burden of production. See 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F. 3d 1346 (Fed. Cir. 2006). After carefully weighing the entire record of evidence, the Board finds that the evidence preponderates against a finding that the Veteran’s service-connected disabilities caused him to be so helpless as to require regular aid and attendance of another person. The Board notes that none of the factors listed in 38 C.F.R. § 3.352(a) have been demonstrated. See Turco, supra. Therefore, the Board concludes that SMC based upon the need for regular aid and attendance of another person is not warranted. As the preponderance of evidence is against the claim the benefit-of-doubt doctrine is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert, supra. G. E. Wilkerson Acting 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.