Citation Nr: 21005109 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 14-20 503 DATE: January 29, 2021 ORDER Service connection for hypertension, to include as secondary to service-connected mitral valve regurgitation and atrial fibrillation, status post mitral valvuloplasty and annuloplasty, is denied. Service connection for a lower back condition, to include as secondary to service-connected fibromyalgia, is denied. Service connection for left lower extremity sensory neuropathy, to include as secondary to service-connected fibromyalgia, is granted. Service connection for right lower extremity sensory neuropathy, to include as secondary to service-connected fibromyalgia, is granted. REMANDED Entitlement to service connection for a circulation condition, to include as secondary to service-connected mitral valve regurgitation and atrial fibrillation, status post mitral valvuloplasty and annuloplasty, is remanded. FINDINGS OF FACT 1. Hypertension did not manifest in service, or within one year of the Veteran’s separation from service and is not otherwise shown to be related to service or a service-connected disability. 2. A lower back condition was not manifested in service; arthritis of the lumbar spine was not manifested in the Veteran’s first post service year; and his current back condition is not shown to be related to his active service or a service-connected disability. 3. Resolving reasonable doubt in favor of the Veteran, his left lower extremity sensory neuropathy is shown to be caused or aggravated by his service-connected fibromyalgia. 4. Resolving reasonable doubt in favor of the Veteran, his right lower extremity sensory neuropathy is shown to be caused or aggravated by his service-connected fibromyalgia. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 2. The criteria for establishing service connection for a lower back condition are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for bilateral left lower extremity sensory neuropathy, to include as secondary to service-connected fibromyalgia, are met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 4. The criteria for service connection for bilateral right lower extremity sensory neuropathy, to include as secondary to service-connected fibromyalgia, are met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from May 1965 to September 1965, and from January 1991 to December 1991, and had additional service in the United States Army Reserves. The Board of Veterans’ Appeals (Board) remanded these claims in September 2016 and then again in May 2018 for further development. At the outset, the Board acknowledges the Veteran has advanced claims for service connection for bilateral lower extremity peripheral neuropathy. However, as a result of VA examinations performed in connection with his claims, there is evidence he suffers from bilateral lower extremity sensory neuropathy instead. According to the United States Court of Appeals for Veterans Claims (Court), when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Board has recharacterized the Veteran’s claim as one for entitlement to service connection for bilateral lower extremity sensory neuropathy. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, a Veteran must show: (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including hypertension and arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection is also warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for hypertension, to include as secondary to service-connected mitral valve regurgitation and atrial fibrillation, status post mitral valvuloplasty and annuloplasty The Veteran contends he suffers from hypertension which is related to his service. In the alternative, the Veteran has also advanced the theory that his service-connected mitral valve regurgitation and atrial fibrillation, status post mitral valvuloplasty and annuloplasty has caused or aggravated his hypertension. The Veteran’s post service VA treatment records and examination reports show he has a current diagnosis of hypertension. However, the Veteran’s service treatment records (STRs) are silent for any signs, symptoms or diagnosis of hypertension/high blood pressure during his service. Further, his post service treatment records do not show any treatment or diagnosis for hypertension within a year following his separation from service. The record includes VA examinations and addendum medical opinions relating to the Veteran’s claim for service connection for hypertension. First, on September 2016 VA examination, it was the examiner’s opinion that the Veteran’s hypertension was not etiologically related to his military service because STRs were negative for hypertension. In fact, the examiner noted that his hypertension was first diagnosed about three years after his separation from service. Additionally, the examiner opined the Veteran’s hypertension was not considered part of the already service-connected cardiac disability and explained that hypertension was a separate condition with no causal relationship with the service-connected cardiac disability. Further, the examiner opined the hypertension was not aggravated by the Veteran’s cardiac disability because based on the Harrison’s Principles of Internal Medicine, 80-95% of hypertension patients were diagnosed as having “essential” hypertension (also referred to as primary or idiopathic hypertension). In the remaining 5-20% of patients, a specific underlying disorder causing the elevation of blood pressure could be identified; however, mitral valve conditions did not appear in the list of recognized secondary causes of hypertension. For those reasons, the examiner opined it was unlikely that the Veteran’s mitral valve condition had caused or aggravated his hypertension. Instead, it was most likely that the Veteran had essential or primary hypertension. See September 2016 VA examination report. In a January 2020 VA medical addendum opinion to the September 2016 VA examination, it was similarly opined that the Veteran’s hypertension was less likely than not incurred in or caused by his service. In support of that opinion, the examiner reported that her review of the claims file did not support a nexus of the Veteran’s hypertension during service. The examiner noted that his STRs were silent for diagnoses and/or treatments for hypertension during service. Additionally, the examiner opined the Veteran’s hypertension was less likely than not aggravated by his service-connected mitral valve regurgitation status post mitral valvuloplasty and annuloplasty. In support of that opinion, the examiner again referenced Harrison’s Principles of Internal Medicine, and reported that 80- 95% of hypertension patients are diagnosed as having “essential” hypertension (also referred to as primary or idiopathic hypertension), while the remaining 5-20% of patients have specific underlying disorders causing the elevation of blood pressure that can be identified. Mitral valve conditions did not appear in the list of recognized secondary causes of hypertension. For these reasons, it was considered unlikely that the Veteran’s mitral valve condition had caused or aggravated his hypertension, and that it was most likely that he had essential or primary hypertension. Lastly, the examiner opined the Veteran’s hypertension was not aggravated by his service-connected atrial fibrillation status post mitral valvuloplasty and annuloplasty, explaining the risk factors for developing atrial fibrillation in addition to age and underlying cardiac disease included hypertension, diabetes mellitus, cardiac disease, obesity and sleep apnea. Atrial fibrillation was associated with a 1.5 to 1.9-fold increased risk of mortality after controlling for underlying heart disease and was also associated with a risk of developing heart failure and vice-versa with patients with heart failure having an increased risk of developing atrial fibrillation. See January 2020 VA medical opinions. In giving the thorough and well-supported negative nexus opinions provided by the September 2016 and September 2020 VA examiners probative weight, there is no evidence that the Veteran’s current hypertension manifested in service or to a compensable degree in the first year following his separation from active duty service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the Veteran has not alleged (nor has he submitted competent evidence to show) that he has suffered from hypertension/high blood pressure continuously since service. 38 C.F.R. § 3.303(b). Consequently, service connection for hypertension on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Lastly, while the Board acknowledges the Veteran’s contention that his service-connected mitral valve regurgitation and atrial fibrillation, status post mitral valvuloplasty and annuloplasty may have caused or aggravated his hypertension, there is no competent evidence in the file that links his current disability with his service-connected medical conditions. Whether a current disability is related to a service-connected disability involves medical questions and is not capable of resolution through lay observation. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Furthermore, the September 2020 VA examiner provided a very and well supported rationale for the negative nexus opinions provided regarding both causation and aggravation of the Veteran’s hypertension by his service-connected disability. In conclusion, the Board finds that there is no probative evidence to warrant service connection for hypertension. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not applicable. Service connection for hypertension is denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to service connection for lower back condition The Veteran contends he suffered an injury to his back during service while carrying heavy boxes. He argues his back has continued to cause him pain since service, including experiencing numbness in his legs. See September 2011 VA examination. The medical evidence of record supports a finding that the Veteran has a current diagnosis of degenerative arthritis of the spine as evidence by the September 2016 VA examination report. Degenerative arthritis of the spine is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. As noted, the Veteran contends he injured his back during his service and that it has caused continuous back pain since the injury. However, a review of the Veteran’s STRs shows that they are silent for any complaints, findings, treatment, or diagnoses related to the back. Additionally, the Veteran’s post service treatment records and VA examination reports with corresponding medical opinions do not support a finding that his current back condition is related to a military service injury or that he has had continuous back pain since his service. A VA examination was performed in September 2016. As previously discussed, the VA examiner diagnosed the Veteran with degenerative arthritis of the spine. At the examination, the Veteran reported a long history of low back pain which he dated to an incident in service when he lifted a heavy box while serving in a finance unit in Saudi Arabia during Desert Storm. He was not evaluated at the time, but he reported some persistent low back pain following the incident. Despite the Veteran’s self-reports of injury and persistent pain, the examiner opined it was less likely than not that the Veteran’s current back condition (lumbar degenerative arthritis) was incurred in or caused by his military service. In support of that opinion, the examiner noted that a review of the STRs revealed no evaluation or treatment for a lumbar spine condition during active service or within one year after separation. The examiner also noted that although the Veteran had been given a diagnosis of a herniated nucleus pulposus in 2005 by his treating physician in Puerto Rico, the recent MRI did not confirm the diagnosis. The examiner further stated that his symptoms were not strongly suggestive of radiculopathy and the physical examination and MRI did not confirm a diagnosis of lumbar radiculopathy. See September 2016 VA examination. In October 2019, another VA examiner offered a medical addendum opinion to the September 2016 lumbar spine examination. The October 2019 VA examiner again diagnosed the Veteran with degenerative arthritis of the lumbar spine based on the August 2016 MRI and September 2019 x-rays. The examiner noted the Veteran had also been diagnosed with fibromyalgia which was service-connected, but stated the lumbar spine degenerative arthritis was a separate condition from the fibromyalgia. The examiner explained that while both conditions could result in low back pain, fibromyalgia typically also resulted in widespread pain involving muscles and joints. The Veteran’s degenerative arthritis was well documented on imaging studies and was the result of aging (the Veteran is 75 years old). The lumbar spine condition was not part of the Veteran’s fibromyalgia which was a soft tissue condition which does not result in damage to bones and cartilages/discs. Instead, fibromyalgia was considered a disorder of pain regulation, often classified as a form of central pain sensitization. Degenerative arthritis of the lumbar spine, on the other hand, resulted in changes in the bones and discs which could be visualized on radiographic studies. Fibromyalgia itself did not have the potential to result in damage to bones and discs. The examiner also explained that radiographic studies of the lumbar spine in patients with fibromyalgia alone were formal, because fibromyalgia did not result in damage to the bones and discs. For these reasons, the examiner opined that the Veteran’s lumbar spine disability was not part of his service-connected fibromyalgia but was a totally separate condition. The examiner further concluded that the Veteran’s lumbar spine disability was not proximately due to the service-connected fibromyalgia but was a separate condition which is due to aging. Similarly, the Veteran’s degenerative arthritis was not aggravated by his service-connected fibromyalgia because it was a separate condition with its own etiology and natural history. Fibromyalgia in and of itself did not have the potential to result in or aggravate damage/degeneration of the vertebra and disc as it was strictly a soft tissue condition. The examiner indicated that a review of the STRs did not reveal any evaluation or treatment of the lumbar spine condition during active service or within one year of separation from service. Therefore, it was also less likely than not that the Veteran’s degenerative arthritis of the lumbar spine was incurred in or caused by active service. See October 2019 VA medical addendum opinion. Based on the foregoing medical opinions, it is not shown that the Veteran’s current back condition had its onset in service or was otherwise caused or aggravated by his service-connected fibromyalgia. As highlighted by the VA examiners, there is no evidence of complaints or injury to the Veteran’s lumbar spine during his military service and his present diagnosis of a lower back condition is separate from his service-connected fibromyalgia. Although he argues he has suffered an injury resulting in continuous pain, the available treatment records do not show care until many years following his separation from service. The passage of time from the Veteran’s separation from service and treatment for his back pain as well as the lack of mention of the in-service injury in his more recent post service treatment records weigh against a finding that these lay statements are credible. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). To the extent the Veteran believe he has a current back condition related to military service, he is not competent to provide a nexus opinion regarding this issue. Whether a current disability is related to a remote incidence in service involves medical questions and is not capable of resolution through lay observation. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In conclusion, the Board finds that there is no probative evidence to warrant service connection for a lower back condition. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not applicable. Service connection for a lower back condition is denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49, 55-57 (1990). 3. Service connection for bilateral lower extremity sensory neuropathy, to include as secondary to service-connected fibromyalgia As previously addressed in the Introduction, the Veteran contends he suffers from bilateral lower extremity peripheral neuropathy as a result of his military service, or in the alternative, secondary to a low back condition. However, based on the evidence presented in connection with adjudicating these claims from VA examiners, the Veteran’s issue has been recharacterized instead to claims for service connection for bilateral lower extremity sensory neuropathy. At the outset, the Board finds the Veteran is currently diagnosed with bilateral lower extremity sensory neuropathy. See September 2016 VA examination and See October 2019 VA examination. Specifically, the September 2016 VA examiner explained in the Veteran’s medical history, he reported chronic low back pain and some pain in the lower extremities but denied tingling or numbness in the lower extremities except for some tingling in his hands. On examination, symptoms including severe intermittent pain in the bilateral lower extremities were documented. Following the examination, the examiner remarked the Veteran had claimed a peripheral neuropathy of the lower extremities, but his history was not strongly suggestive of a neuropathy. Instead, the physical examination was suggestive of a mild bilateral sensory neuropathy. The examiner also noted that electrodiagnostic studies to confirm a diagnosis of neuropathy had not been performed, and there was no evidence of a radiculopathy on history, examination or lumbar spine MRI. The examiner further stated that a review of the STRs did not reveal any evaluation or treatment of a peripheral neuropathy during active service or within one year of separation from service, and there was no evidence of a peripheral neuropathy related to any incident of service. For these reasons, the examiner concluded it was less likely than not that the Veteran had a peripheral neuropathy of the lower extremities which was directly related to service or any incident of service. See September 2016 VA examination. Clarification regarding the Veteran’s present diagnoses pertaining to the claimed bilateral lower extremity neuropathy was sought pursuant to the Board’s May 2018 remand. In October 2019, a VA examiner confirmed the diagnosis of sensory neuropathy of the bilateral lower extremities. The examiner indicated the Veteran had reported no change in his sensory changes detailed in his 2016 examinations. Based on the prior evidence, the examiner opined the Veteran’s sensory neuropathy in both of his legs was more likely than not related to his service-connected fibromyalgia and not his low back degenerative joint disease. The examiner explained sensory neuropathy was caused by the fibromyalgia and was unrelated to his degenerative joint disease. The examiner also indicated the Veteran did not have lower extremity radiculopathy or intervertebral disc disease (IVDS) and therefore, the literature supported that his lower extremities peripheral neuropathy was not related to his spine. In addition, the neuropathy was not aggravated by his fibromyalgia, it was caused by his fibromyalgia. Lastly, the examiner opined the Veteran’s lumbar spine was unrelated to his fibromyalgia and was less likely than not causing the sensory peripheral neuropathy as reported in the examination. See October 2019 VA examination. While it is clear from the October 2019 VA examiner’s opinion that the Veteran does not have a diagnosis of bilateral lower extremity peripheral neuropathy and instead, has a diagnosis of sensory neuropathy of the bilateral lower extremities, it was unclear from the examiner’s opinion whether the Veteran’s sensory neuropathy was caused by his service-connected fibromyalgia. As a result of the confusing medical opinions presented, a VA medical addendum opinion was obtained in April 2020. In an April 2020 VA medical addendum opinion, a VA examiner opined that the Veteran’s bilateral sensory neuropathy of the lower extremities was more likely than not caused by his service-connected fibromyalgia. Accordingly, a nexus on a secondary basis has been established .See April 2020 VA Medical Addendum Opinion. In consideration of all the information and lay and medical evidence, the Board finds that the criteria for establishing service connection for bilateral lower extremity sensory neuropathy, to include as secondary to service-connected fibromyalgia, are met. In so finding, the Board acknowledges the VA examiner’s negative nexus opinions regarding the Veteran’s original claim for service connection for bilateral peripheral neuropathy of the lower extremities, including as secondary to a low back condition. However, in light of the expanded nature of the Veteran’s claim, which includes sensory neuropathy, and resolving any reasonable doubt in his favor, entitlement to service connection for bilateral lower extremity sensory neuropathy, as secondary to his service-connected fibromyalgia is warranted based on the positive April 2020 medical opinion. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a circulation condition, to include as secondary to service-connected mitral valve regurgitation and atrial fibrillation, status post mitral valvuloplasty and annuloplasty, is remanded. A VA examination was performed in April 2020 pursuant to the May 2018 Board remand directives. However, the Agency of Original Jurisdiction did not address the issue of entitlement to service connection for a circulation condition in the subsequent May 2020 Supplemental Statement of the Case (SSOC). As no SSOC was issued following this additional development, a remand is required for the AOJ to readjudicate this claim and issue a SSOC. The matter is REMANDED for the following action: (Continued on the next page)   The AOJ should issue an SSOC on the issue of service connection for a circulation condition, to include as secondary to service-connected mitral valve regurgitation and atrial fibrillation, status post mitral valvuloplasty and annuloplasty considering the newly associated evidence and issue an SSOC. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.