Citation Nr: 20050187 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 05-38 966 DATE: July 28, 2020 ORDER Entitlement to service connection for hypertension, to include as due to exposure to Agent Orange or secondary to service-connected coronary artery disease (CAD), is denied. Entitlement to service connection for a skin rash of the calves, to include as due to exposure to Agent Orange, is denied. Entitlement to service connection for peripheral neuropathy, to include as due to exposure to Agent Orange, is denied. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicides coincident with service in the Republic of Vietnam. 2. The Veteran’s hypertension was not caused or aggravated by active service or by a service-connected disability and was not due to exposure to herbicides. 3. The preponderance of the competent medical evidence does not demonstrate that the Veteran had a diagnosable skin rash of the calves at the time of his death or any point prior to his death. 4. The preponderance of the competent medical evidence does not demonstrate that the Veteran had diagnosable peripheral neuropathy at the time of his death or any point prior to his death. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension, to include as due to exposure to Agent Orange, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.310, 4.104. 2. The criteria for entitlement to service connection for a skin rash of the calves, to include as due to exposure to Agent Orange, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection for peripheral neuropathy, to include as due to exposure to Agent Orange, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1968. He died in January 2012; the Appellant in this case is his surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant testified at a Board hearing in January 2018. The Appellant was granted substitution by the RO in May 2016 Correspondence. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This case has been before the Board several times, including most recently in March 2018 when it was remanded to the RO for further development. Service Connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred during service, or, if the injury or disease preexisted such service, a showing that the injury or disease was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing that a purported injury or disease is connected to service, such that a veteran is entitled to potential benefits, requires competent and credible evidence of the following three things: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship, i.e. a nexus, between the disease or injury in service and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was proximately caused or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process or relatively close thereto can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Board notes the Veteran served in Vietnam and is thus presumed to have been exposed to herbicide agents, including Agent Orange, during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309(e). Because he was exposed to an herbicide agent during service, certain diseases are presumed to have been incurred in service, if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Id. However, the unavailability of presumptive service connection for a disability based on exposure to herbicide agents does not preclude a veteran from establishing service connection with proof of direct causation, to include via such exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Appellant contends that she is entitled to benefits owed to the Veteran for the outstanding claims of service connection for peripheral neuropathy, a skin rash on the calves, and hypertension. Specifically, she asserts that the Veteran’s claimed peripheral neuropathy, hypertension, and skin rash on the calves are presumptively attributable to his exposure to herbicide agents during his service in the Republic of Vietnam. 1. Entitlement to service connection for hypertension, to include as due to exposure to Agent Orange or secondary to service-connected CAD, is denied. The Appellant also contends the Veteran’s hypertension was secondary to his service-connected CAD. A March 2003 medical record shows the Veteran was diagnosed with hypertension. The Veteran was afforded a VA hypertension examination in May 2011. The Veteran reported that he was diagnosed with hypertension in March 2006 and he was unsure how long he suffered from hypertension. The Board notes that no etiology opinion was provided. In January 2017, the Veteran’s claims file was forwarded to a VA examiner to provide an etiology opinion addressing whether the Veteran’s hypertension was etiologically related to his active service, to include exposure to Agent Orange. The examiner provided a negative nexus opinion and rationalized that a review of the medical records showed documentation of a diagnosis of hypertension in September 2003, which was 35 years after separation from service, and his separation blood pressure was 126/76. The examiner was also asked to opine whether the Veteran’s hypertension was aggravated beyond its natural progression by his service-connected CAD, status post bypass surgery. The examiner opined that it is less likely than not that the Veteran’s hypertension was aggravated beyond natural progression by his service-connected CAD, status post bypass surgery and rationalized that the Veteran’s hypertension was about the same right before and after his coronary artery bypass grafting. In January 2018, the Appellant testified at a Board hearing and stated that the Veteran served in Vietnam and had problems with his hypertension since they were married in 1985. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the January 2017 VA examiner opinion is the most probative medical opinion of record. Overall, the only evidence of record supporting the Veteran’s claim are the lay contentions from him and the Appellant. As indicated in 38 C.F.R. § 4.104, Diagnostic Code 7101, however, hypertension is not one of the types of disorders (e.g., tinnitus, headaches) that may be capable of self-diagnosis. Accordingly, the Veteran and Appellant’s lay opinions as to the date of onset of the diagnosis or etiology of hypertension do not represent competent evidence and lack probative value for the purposes of the decision at hand. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board also notes that hypertension is not considered an “ischemic heart disease” and is therefore not a presumptive disease on account of herbicide agent exposure. Service connection is thus not warranted on this basis. Overall, there is no competent medical evidence suggesting that the Veteran’s hypertension was caused or aggravated by service, or first manifest within one year following separation from service. Further, there is no medical evidence showing that the Veteran’s hypertension was aggravated by his service-connected CAD, status post bypass surgery. Consequently, the Board finds that the preponderance of the evidence is against the claim for service connection for hypertension. The appeal must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for a skin rash of the calves, to include as due to exposure to Agent Orange, is denied. In a September 2004 VA visit, the Veteran denied having any skin rash. In March 2008 and April 2011 VA visits, the Veteran was noted to have no skin rashes. In February 2017, the Veteran’s claims file was forwarded to a VA examiner to provide an etiology opinion addressing whether the Veteran had a diagnosis of a skin rash of the calves that was at least as likely as not incurred in or caused by his active service, to include as due to exposure to herbicides. Based on a comprehensive claims file review, the examiner provided a negative nexus opinion. The examiner noted that the Veteran had no diagnosis of a skin rash of the calves that was at least as likely as not incurred in or caused by herbicide exposure during service. The examiner rationalized that the Veteran's records are silent for evaluation, diagnosis, and treatment of a skin rash during service or after service until the Veteran's death in 2012. The examiner further explained that the Veteran underwent an entrance examination in May 1966 and no rash on the calves were noted at such examination. The examiner stated that in September 1968, the Veteran signed a separation examination memorandum reporting that he had no change in his medical condition from a 1968 physical examination. Further, the examiner stated that the Veteran’s VA records from 2004 to 2011 are silent for evaluation, diagnosis, and treatment of a skin rash of any sort. The examiner noted that pedal edema, swelling of the feet and ankles, is related to “liver failure due to cirrhosis leg to use as graft material.” The Board notes that service connection was separately established for venous stasis of the bilateral lower extremities. At the January 2018 hearing, the Appellant stated that the Veteran always had a skin rash which was located on his legs. She further stated that the Veteran had the rash in service, and it worsened to the point that the Veteran could not be rushed because his legs were swollen and hurting. She explained that the Veteran was diagnosed by a private doctor. The Board notes that the RO made several attempts to obtain medical records from the Veteran’s private physician; however, the records were determined unobtainable. While the Veteran asserted that he had a skin rash of the calves related to his active service, and was competent to observe lay symptoms, neither he nor the Appellant have the training or credentials to provide a competent opinion as to a diagnosis of a skin rash of the calves, or the etiology of any skin symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the absence of competent evidence of a current diagnosis, the Board need not further address the applicability of the regulations concerning herbicide agent exposure, which do reference chloracne. In the absence of proof of a present disability, there can be no valid claim for service connection. See Brammer v. Derwinski, supra. Consequently, the Board gives more probative weight to the May 2011 and February 2017 VA examination reports and competent medical evidence failing to show a diagnosis of a skin rash of the calves during the pendency of the appeal. The appeal must be denied. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for peripheral neuropathy, to include as due to exposure to Agent Orange, is denied. The Appellant contends that she is entitled to benefits owed to the Veteran for an outstanding claim of service connection for peripheral neuropathy. She specifically asserts that the Veteran’s claimed peripheral neuropathy was caused by his exposure to Agent Orange in Vietnam. In a September 2004 VA visit, the Veteran’s peripheral vascular system was noted as normal. In a December 2009 private physician visit, the Veteran complained of occasional lower extremity cramps but was not diagnosed with any neuropathy. The Veteran was afforded a VA peripheral nerves examination in May 2011. The Veteran reported experiencing chronic swelling, discomfort, and pain in his lower extremities after he underwent emergent three vessel coronary artery bypass graft surgery in January 2011. The Veteran reported that the pain and discomfort progressed as the leg and feet swelling have increased. He stated that the symptoms gradually onset in 2007. The examiner noted no specific diagnosis pertinent to the peripheral nerve system. In a November 2011 private emergency treatment note, the physician noted the Veteran denied numbness and tingling in the extremities. At the January 2018 hearing, the Appellant stated that the Veteran had the peripheral neuropathy since service, but he did not get it looked at while he was in service or after. She stated that he had a pins and needles feeling all of the time and he took pain medication. The Board notes that the Veteran was service connected for bilateral lower extremity venous stasis, diagnosed as peripheral venous stasis, which contemplates bilateral foot conditions and symptoms. While the Veteran asserted that he had peripheral neuropathy related to his active service, and was competent to observe lay symptoms, neither he nor the Appellant have the training or credentials to provide a competent opinion as to a diagnosis of peripheral neuropathy, or the etiology of any neuropathic symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the absence of competent evidence of a current diagnosis, the Board need not further address the applicability of the regulations concerning herbicide agent exposure, which do reference early-onset peripheral neuropathy. In the absence of proof of a present disability, there can be no valid claim for service connection. See Brammer v. Derwinski, supra. Consequently, the Board gives more probative weight to the May 2011 VA examination report and competent medical evidence failing to show a diagnosis of peripheral neuropathy during the pendency of the appeal. The appeal must be denied. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexis B. Markeson, 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.