Citation Nr: 20042012 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 09-09 017 DATE: June 19, 2020 ORDER Entitlement to service connection for hypertension, including as secondary to diabetes mellitus is denied. REMANDED Entitlement to a rating in excess of 30 percent for diabetic peripheral neuropathy of the right upper extremity prior to January 14, 2016, and in excess of 40 percent thereafter is remanded. Entitlement to a rating in excess of 20 percent for diabetic peripheral neuropathy of the left upper extremity prior January 14, 2016 and in excess of 30 percent thereafter is remanded. FINDING OF FACT The Veteran’s hypertension is not attributable to service, nor is it caused or aggravated by his service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for hypertension, including as secondary to diabetes mellitus have not been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1967 to September 1969, with service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). These claims were most recently remanded for additional development in December 2015. The Board finds that the AOJ has substantially complied with remand directives regarding the claim for service connection for hypertension. 1. Entitlement to service connection for hypertension, including as secondary to diabetes mellitus Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110. Service connection can be established by evidence that shows “(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.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a Veteran is presumably exposed to an herbicide agent, then there is a presumption of service connection for certain enumerated diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a) and 3.309(e). 38 C.F.R. § 3.309(e) provides that ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. See Note 2. Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). 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) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran contends that his hypertension is either secondary to his service-connected diabetes mellitus or is caused by his presumed exposure to herbicide agents. Turning to the evidence, the Board notes that the Veteran was not diagnosed with hypertension during active duty including on examinations in October 1966 and August 1969. The Veteran was afforded a VA examination in July 2012. The examiner documented that the Veteran was diagnosed with hypertension in “?1992.” The examiner opined that the Veteran’s hypertension was less likely than not incurred in or caused by service. Primary hypertension develops as a result of environmental or genetic causes, and secondary hypertension has multiple etiologies, including renal, vascular, and endocrine causes. The Veteran’s condition is designated as essential hypertension, which means the exact cause is unknown. The examiner indicated that a review of medical literature failed to find a link between exposure to herbicide agents and hypertension. Additionally, the examiner explained that diabetic nephropathy could provoke hypertension, but the Veteran had normal renal function. Therefore, it was also less likely than not that the Veteran’s hypertension was caused or aggravated by his diabetes mellitus. The Veteran underwent a VA examination for diabetes mellitus in January 2016. The examiner noted that the Veteran has a “cardiac condition” that is at least as likely as not due to diabetes mellitus. The Board notes that the Veteran is diagnosed with, and service-connected for, coronary artery disease. The January 2016 examiner indicated that is less likely than not that the Veteran’s diabetes mellitus aggravated any condition. The only recognized complications of diabetes mellitus the Veteran had was diabetic peripheral neuropathy and diabetic retinopathy. The Veteran underwent another VA examination for hypertension in January 2019. The examiner indicated that the Veteran was diagnosed around 2002, and had been on medication since then with good control. The examiner concluded that the Veteran’s hypertension was less likely than not caused by diabetes mellitus, as the Veteran did not have diabetic nephropathy and had normal renal function. Additionally, the Veteran had essential hypertension, which is diagnosed in the absence of secondary causes. The January 2019 examiner provided a supplemental opinion in April 2020, which addressed whether the Veteran’s hypertension was caused by or related to his presumed exposure to herbicides. The examiner indicated that, after an extensive review of the pathophysiology and risk factors for hypertension, no peer-reviewed literature has recognized herbicide agents as a cause of hypertension. The limited suggestive evidence of the possible causative role of herbicides has not resulted in the inclusion of herbicides as a cause of hypertension in the literature. After reviewing the evidence, the Board concludes that service connection for hypertension is not warranted. The Board finds that the presumptive service connection is not warranted, as § 3.309 (e) specifically excludes hypertension as a presumptive disability for service connection. Additionally, the evidence of record shows that the Veteran’s hypertension is not caused by exposure to herbicides in Vietnam. Finally, the Board finds that the Veteran’s service-connected diabetes mellitus does not cause or aggravate his hypertension. In forming its conclusions, the Board affords the July 2012 VA examination some, but not significant, weight. A December 2015 Board remand found the examination inadequate because it did not consider evidence that was favorable to the Veteran, and was based on a diagnosis made in the wrong year. Therefore, on the question of direct service connection, little weight is afforded. Nevertheless, the examination indicated that the Veteran’s hypertension was not caused or aggravated by his diabetes mellitus as the Veteran did not have diabetic nephropathy. On secondary service connection, some weight is afforded, especially given that the January 2019 opinion was consistent with this finding. The Board also finds the July 2012 examiner’s reasoning regarding classification of primary, secondary, and essential hypertension significant, as it is also consistent with the April 2020 reasoning. The April 2020 addendum opinion is adequate and receives significant weight because it addresses the evidence identified in the December 2015 Board remand. The examiner indicated that the suggestive evidence of a link between herbicides and hypertension has not resulted in the inclusion of herbicides as a cause of hypertension in the peer-reviewed literature. Additionally, the examiner echoed that the Veteran’s hypertension is essential, meaning the cause is unknown. As the record indicates no known cause for the Veteran’s hypertension, the Board finds that it is less likely than not related to service. While the Veteran believes that his hypertension is related to service, the Board concludes that the Veteran is not competent to make this determination. The issue is medically complex, as it requires the interpretation of symptoms and application of medical diagnostic criteria by a trained medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no evidence that the Veteran has any medical training. See 38 C.F.R. §§ 4.125, 4.130. Therefore, the Board must rely on the competent evidence, particularly the VA examinations, in making its decision. In conclusion, the weight of the competent evidence demonstrates no relationship between the Veteran’s hypertension and active duty service. Additionally, the competent evidence does not demonstrate a causal relationship between hypertension and diabetes mellitus, or aggravation of hypertension by diabetes mellitus. For these reasons, the Board finds that the preponderance of the probative evidence of record is against the Veteran’s claim of service connection for hypertension, to include as due to exposure to herbicides, on a direct or presumptive basis, or on a secondary basis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for diabetic peripheral neuropathy of the right upper extremity prior to January 14, 2016, and in excess of 40 percent thereafter is remanded. 2. Entitlement to a rating in excess of 20 percent for diabetic peripheral neuropathy of the left upper extremity prior January 14, 2016 and in excess of 30 percent thereafter is remanded. The Veteran’s peripheral neuropathy of the bilateral upper extremities was rated under Diagnostic Code (DC) 8614, which applies to the musculospiral nerve (radial nerve), from October 14, 2003 to January 13, 2016. From January 14, 2016, his disability has been rated under DC 8513, which applies to all radicular groups. The Veteran underwent a VA examination with an EMG in October 2009. The results showed delayed latencies of the median and ulnar nerves bilaterally. The Veteran also had an EMG in April 2012, which did not summarize findings regarding which specific nerves were damaged. The Veteran then had a VA examination in July 2012, which documented impairment to the radial nerve, median nerve, and ulnar nerve. The examiner indicated that these nerves constituted impairment of the lower radicular group. The January 2016 VA examination also showed impairment of the radial, median, and ulnar nerves, but did not indicate a corresponding radicular group. A February 2019 VA examination indicated impairment of the middle and lower radicular groups, which included the radial, ulnar, and median nerves. In order to adjudicate this claim using the proper DC, a remand is necessary for an examiner to review the EMGs and VA examinations of record, and opine whether the Veteran’s peripheral neuropathy affects the upper radicular group, middle radicular group, lower radicular group, a combination of these radicular groups, or all radicular groups. The matters are REMANDED for the following action: Forward the record and a copy of this remand to a suitably qualified examiner for completion of an addendum opinion. The examiner should specifically review the following: (1) the October 2009 VA examination and EMG results; (2) the April 2012 EMG results; (3) the July 2012 VA examination; (4) the January 2016 VA examination; and (5); the February 2019 VA examination. For each record reviewed, the examiner should opine whether the Veteran’s peripheral neuropathy affects the upper radicular group, middle radicular group, lower radicular group, a combination of these radicular groups, or all radicular groups. A fully reasoned explanation for all opinions expressed must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, 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.