Citation Nr: 21002053 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-32 870 DATE: January 12, 2021 ORDER The appeal with respect to entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is dismissed. REMANDED Entitlement to service connection for polycythemia (claimed as leukemia), to include as due to herbicide exposure, is remanded. Entitlement to service connection for a heart disability, to include as due to herbicide exposure, is remanded. Entitlement to service connection for a back disability (including arthritis due to trauma and degenerative arthritis) is remanded. Entitlement to service connection for sleep apnea, to include as due to herbicide exposure and/or a back disability, is remanded. FINDING OF FACT In an April 2020 VA rating decision, the issues of entitlement to service connection for peripheral neuropathy of the right and left lower extremity femoral nerves and of the right and left lower extremity sciatic nerves were granted, which represents a full grant of the issue on appeal for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities and no further “controversy” or “justiciable” issue remains before the Board. CONCLUSION OF LAW The claim of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is dismissed for lack of subject matter jurisdiction. 38 U.S.C. § 7105(d)(5) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1966 to August 1970. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities The Veteran contends that service connection is warranted for peripheral neuropathy of the bilateral lower extremities due to his in-service herbicide exposure. The Board acknowledges that the Agency of Original Jurisdiction (AOJ) has presumed the Veteran’s in-service herbicide exposure, as noted in a July 2018 VA rating decision. Moreover, in a March 2020 VA rating decision, the issue of service connection for diabetes mellitus, type II, due to herbicide exposure was granted. In response to the June 2017 statement of the case (SOC), the Veteran perfected on appeal the issue of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, and this issue was certified to the Board in a July 2017 VA Form 8. Subsequently, the Veteran was afforded a VA examination for diabetic sensory-motor peripheral neuropathy in February 2020 and the VA examiner rendered a diagnosis of mild diabetic peripheral neuropathy of the bilateral lower extremities. In an April 2020 VA rating decision, the issues of entitlement to service connection for peripheral neuropathy of the right and left lower extremity femoral nerves and of the right and left lower extremity sciatic nerves were granted, each as secondary to the service-connected diabetes mellitus. In light of the Veteran’s contentions and review of the most recent medical evidence of record since the issue on appeal was certified in July 2017, the Board finds that the April 2020 VA rating decision represents a full grant of the issue on appeal and no further “controversy” or “justiciable” issue remains before the Board. As a result, the Board does not have jurisdiction to review the appeal of this issue, and the appeal is dismissed. 38 U.S.C. § 7105(d)(5); see Schoen v. Brown, 6 Vet. App. 456, 457 (1994); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Entitlement to service connection for polycythemia (claimed as leukemia), to include as due to herbicide exposure In September 2015, the Veteran requested service connection for leukemia related to Agent Orange. During the appeal period, the Veteran submitted private medical statements regarding a nexus between the Veteran’s diagnosis of polycythemia and in-service herbicide exposure from Dr. M. K. in July 2015 with a speculative conclusion and in June 2016 with a conclusion not supported by a rationale. The Board acknowledges that while the Veteran’s in-service herbicide exposure has been presumed by VA, polycythemia is not listed or contemplated among the diseases associated with certain herbicide agents under 38 C.F.R. § 3.309(e), thus consideration of service connection for polycythemia on a presumptive basis due to herbicide exposure is not warranted in this case. Nevertheless, the Board finds that after review of the evidentiary record, no VA medical opinion has been provided in this case and additional development is needed to determine the etiology of the Veteran’s polycythemia on a direct basis. See 38 U.S.C. §§ 1110, 5103A(a) (2012); 38 C.F.R. §§ 3.159, 3.303 (2019); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a heart disability, to include as due to herbicide exposure In September 2015, the Veteran requested service connection for heart condition related to Agent Orange. In a July 2016 correspondence, he also requested service connection for ischemic heart disease due to Agent Orange. During the appeal period, review of VA treatment records shows a current diagnosis of paroxysmal atrial fibrillation and no clinical findings of ischemic heart disease. Most recently, the Veteran’s representative acknowledged the Veteran’s does not have a diagnosis of ischemic heart disease and contends that the atrial fibrillation is related to the presumed in-service herbicide exposure. The Board notes that paroxysmal atrial fibrillation is not listed or contemplated among the diseases associated with certain herbicide agents under 38 C.F.R. § 3.309(e), thus consideration of service connection for any heart disability (other than ischemic heart disease) on a presumptive basis due to herbicide exposure is not warranted in this case. Nevertheless, the Board finds that additional development is needed to determine the etiology of the Veteran’s current heart disability on a direct basis. 38 U.S.C. §§ 1110, 5103A(a); 38 C.F.R. §§ 3.159, 3.303; McLendon, 20 Vet. App. at 79. 3. Entitlement to service connection for a back disability (including arthritis due to trauma and degenerative arthritis) The Board has recharacterized the Veteran’s claims for back condition, arthritis due to trauma, and degenerative arthritis more broadly to a back disability (including arthritis due to trauma and degenerative arthritis) in order to clarify the nature of the benefit sought and ensure complete consideration of the claims. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). In a July 2016 correspondence, the Veteran reported that he “had a plethora of undocumented back injuries” and “[s]eventy-five times or more, [he] had to perform a free-fall, from [his] top bunk at Da Nang AFB [Air Force Base], on to a very hard concrete floor, to keep from being killed during rocket attacks.” He also reported being in “temporary agony, from filling sand bags at Da Nang AFB, on way too many occasions” and he sought treatment (from a private provider whose records are no longer available) for these back problems within years after separation from service. Most recently, at the January 2020 Board hearing, the Veteran also described his in-service duties with fueling tanks that attributed to his current back disability. Since separation from active service, review of private and VA treatment records documents a history of multiple surgeries on the Veteran’s lumbar spine and assessments including spinal stenosis and lumbar post-laminectomy syndrome. Additionally, review of the Veteran’s service personnel records documents his service at the Da Nang AFB and military occupational specialty (MOS) as machinist, aircraft fuel system repairman, and aircraft fuel system mechanic. In light of the evidentiary record at this time, the Board finds that additional development is needed to determine the existence and etiology of a back disability (including arthritis due to trauma and degenerative arthritis). 38 U.S.C. §§ 1110, 5103A(a); 38 C.F.R. §§ 3.159, 3.303; McLendon, 20 Vet. App. at 79. 4. Entitlement to service connection for sleep apnea, to include as due to herbicide exposure and/or a back disability In September 2015, the Veteran requested service connection for sleep apnea. During the appeal period, review of private and VA treatment records shows a current diagnosis of obstructive sleep apnea as well as clinical findings of morbid obesity. A September 2019 VA treatment record noted an assessment of sleep apnea most likely related to his obesity. Most recently, the Veteran reported at the January 2020 Board hearing, as well as in a June 2016 statement with the notice of disagreement (NOD), that sleep apnea was not recognized as a disability until approximately 1980s which was 10 years after he separated from service. The Veteran also reported that his symptoms of sleep apnea began while in service when he was exposed to the spraying of herbicides. The Board notes that sleep apnea is not listed or contemplated among the diseases associated with certain herbicide agents under 38 C.F.R. § 3.309(e), thus consideration of service connection for sleep apnea on a presumptive basis due to herbicide exposure is not warranted in this case. Nevertheless, the Board finds that additional development is needed to determine the etiology of sleep apnea on a direct basis. 38 U.S.C. §§ 1110, 5103A(a); 38 C.F.R. §§ 3.159, 3.303; McLendon, 20 Vet. App. at 79. Additionally, at the January 2020 Board hearing the Veteran’s representative raised the contention that service connection for sleep apnea is warranted as a result of obesity caused by his back disability. While the Board remands the issue of entitlement to service connection for a back disability for additional evidentiary development, as discussed above, that decision may impact this claim for sleep apnea on a secondary basis. See 38 C.F.R. § 3.310 (2019). As such, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Provide the Veteran’s claims file to an appropriate clinician to provide an opinion regarding the Veteran’s claim for polycythemia (claimed as leukemia). The entire claims file and a copy of this remand must be made available to the examiner for review. An examination (physical or telehealth) is only required if deemed necessary by the examiner. Based on a review of the claims file, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s polycythemia (even if now resolved) began during active service or is related to an incident of service, to include the presumed in-service herbicide exposure. It is not sufficient to provide a negative opinion solely because polycythemia is not on the list of disabilities presumed to be associated with exposure to herbicide agents. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Schedule the Veteran for an examination (physical or telehealth) with an appropriate clinician for his claim for a heart disability. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s heart disability (including paroxysmal atrial fibrillation even if since resolved) began during active service or is related to an incident of service, to include the presumed in-service herbicide exposure. It is not sufficient to provide a negative opinion solely because the Veteran’s heart condition is not on the list of disabilities presumed to be associated with exposure to herbicide agents. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Schedule the Veteran for an examination (physical or telehealth) with an appropriate clinician for his claim for a back disability. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s back disability began during active service, is related to an incident of service (including consideration of the Veteran’s lay assertions of in-service injuries and MOS duties as noted in the July 2016 correspondence and the January 2020 Board hearing transcript), or if any findings of arthritis began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Then, schedule the Veteran for an examination (physical or telehealth) with an appropriate clinician for his claim for sleep apnea. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must provide opinions as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea (even if now resolved) began during active service or is related to an incident of service, to include the presumed in-service herbicide exposure and lay assertions of symptoms in service noted in the June 2016 correspondence. If, and only if, a positive nexus opinion was provided for the Veteran’s back disability and service, then provide opinions as to the following: (a.) Whether it is at least as likely as not that the Veteran’s sleep apnea was proximately due to or the result of his back disability. (b.) Whether it is at least as likely as not that the Veteran’s sleep apnea was aggravated beyond its natural progression by his back disability. (c.) Does the Veteran’s back disability cause or aggravate obesity? (d.) If the answer to (c.) is yes, then was the obesity a substantial factor in causing sleep apnea? (e.) If the answers to (c.) and (d.) are yes, determine whether the claimed disability would not have occurred but for the obesity. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 6. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Carter, 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.