Citation Nr: 21062867 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-55 241 DATE: October 12, 2021 REMANDED 1. Entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for left upper extremity peripheral neuropathy is remanded. 3. Entitlement to service connection for right upper extremity peripheral neuropathy is remanded. 4. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. 5. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from July 1964 to August 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision, which reopened and denied a claim of service connection for hypertension, denied service connection for type 2 diabetes mellitus (on the merits), and denied service connection for peripheral neuropathy of both upper and both lower extremities. In September 2019 a videoconference hearing was held before the undersigned; a transcript is in the Veteran's record. A January 2020 Board decision found that the claim seeking service connection for type 2 diabetes mellitus was actually a claim to reopen. The Board reopened the claims seeking service connection for type 2 diabetes mellitus and hypertension, and remanded both matters (on de novo review) for additional development. The Board also remanded the claims seeking service connection for left upper, right upper, left lower, and right lower extremity peripheral neuropathies for additional development. In February 2021 (pursuant to development ordered in the January 2020 remand), VA determined that exposure to herbicide agents is conceded in the Veteran's case based on his nautical service in the offshore waters defined in the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act). An interim (August 2021) rating decision granted service connection for type 2 diabetes mellitus as due to exposure to herbicide agents in-service; therefore, that matter is no longer before the Board. 1. Entitlement to service connection for hypertension In January 2020 this matter was remanded for additional development, including specifically to obtain outstanding private medical records, to determine whether the Veteran was exposed to herbicide agents in service, and for an addendum advisory medical opinion regarding the likely etiology of the Veteran's hypertension (to include consideration of exposure to herbicide agents, if shown, and to include whether his hypertension was caused or aggravated by his diabetes mellitus). As discussed in greater detail below, the examination report obtained on remand does not substantially comply with the Board's remand directives, and corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, an addendum opinion is necessary considering the finding that the Veteran was exposed to herbicide agents in service. In July 2021, a VA nurse practitioner reviewed the Veteran's record and opined that his hypertension is less likely than not related to service. As noted above, exposure to herbicide agents is now conceded, and the examiner did not address such theory of entitlement. As noted by the Veteran's representative in a September 2021 argument, the National Academies of Sciences, Engineering, and Medicine (NASEM), in the Veterans and Agent Orange Update: Update 11 (2018) (VAO Update), acknowledged "sufficient evidence" of an association between exposure to herbicide agents and hypertension. The examiner did not address this literature; accordingly, that opinion is not adequate for rating purposes. Additionally, the examiner opined that the Veteran's hypertension is less likely than not "proximately due to or the result of" his now service-connected type 2 diabetes mellitus. She also opined that the hypertension was less likely than not "aggravated beyond its natural progression by" his type 2 diabetes mellitus, based on the absence of diabetic nephropathy and because "There is no evidence of significant worsening of hypertension since the diagnosis of DM 2." [She noted that hypertension was diagnosed "several years prior to" the type 2 diabetes mellitus.] This part of the opinion is also inadequate for rating purposes, as it is apparently based on a finding of a lack of "significant worsening" (versus any aggravation), and is based in part on a finding that hypertension pre-existed type 2 diabetes mellitus. [The Board observes that the fact that hypertension was diagnosed prior to diabetes mellitus does not preclude a finding that upon its diagnosis diabetes mellitus aggravated hypertension.] Accordingly, remand for an adequate, addendum advisory medical opinion is necessary. 2., 3., 4., 5. Entitlement to service connection for left and right upper, and left and right lower extremity peripheral neuropathy The Veteran's theory of entitlement to these benefits is one of secondary service connection; he asserts that he has peripheral neuropathy of both upper and both lower extremities secondary to his diabetes mellitus. See February 2016 VA Form 21-526EZ. The claims were previously denied in part, because service connection for type 2 diabetes mellitus had not been established. See May 2016 rating decision. However, service connection for type 2 diabetes mellitus is now established. The Board finds that remand for a neurological examination to ascertain the nature and likely etiology of the claimed peripheral neuropathy is now necessary. Evidence obtained on remand (including private treatment records) show diagnoses of "likely" cervical spondylosis of the left upper extremity (in June 2015) and right cubital tunnel syndrome (in August 2018). An August 2019 VA treatment record notes complaints of non-focal skin tingling without neurologic deficit; the Veteran reported that he experienced such sensation "a few times in the past and [it] just resolved on its own." Although service connection for type 2 diabetes mellitus has been established, the Veteran has not been afforded an examination to determine whether he has diabetic neuropathy and/or whether the service-connected diabetes mellitus aggravates his diagnosed upper extremity nerve disabilities. Considering the evidence that the Veteran has upper extremity nerve disabilities diagnosed (and suggesting he may also have lower extremity nerve disabilities), and that his exposure to herbicide agents in service has been confirmed, and his type 2 diabetes mellitus is service connected, the Board finds that remand for a peripheral nerves examination is necessary. The matters are REMANDED for the following: 1. Secure for the record updated (to the present, all not already associated with the record) complete clinical records of all VA evaluations and treatment the Veteran has received. 2. When the development sought above is completed, arrange for the Veteran's record to be forwarded to an appropriate clinician for review and an advisory medical opinion regarding the likely etiology of his hypertension. The entire record (to include this Remand and any newly obtained records) must be reviewed by the examiner. [If further examination of the Veteran is deemed necessary, such should be arranged.] The consulting provider should provide opinions that respond to the following: (a) Is it at least as likely as not (a 50% or greater probability) that the Veteran's hypertension is etiologically related directly to his service, to include his VA-acknowledged exposure to herbicide agents therein? The rationale provided must discuss the NASEM's VAO Update findings that there is "sufficient evidence of an association" between exposure to herbicide agents and hypertension. See Veterans and Agent Orange: Update 11 (2018). (b) If the answer to (a) is No, is it at least as likely as not that the Veteran's hypertension was caused or aggravated by (increased in severity due to) his service-connected type 2 diabetes mellitus? [The opinion must address aggravation. The examiner is instructed that the diagnosis of hypertension prior to type 2 diabetes mellitus does not preclude aggravation of hypertension by type 2 diabetes mellitus.] (c) If the hypertension is determined to not be etiologically related directly to the Veteran's service, and to not have been caused or aggravated by his service-connected type 2 diabetes mellitus, identify the etiology for the hypertension that is considered to be more likely (and explain why that is so). All opinions must include rationale with citation to supporting factual data and medical principles, as deemed appropriate. 3. Arrange for a peripheral nerves examination of the Veteran to determine the nature and likely etiology of his claimed bilateral upper and lower extremity neurological disabilities. The entire record (to include this Remand and any newly obtained records) must be reviewed by the examiner. On examination of the Veteran and review of his record, the examiner should: (a) Identify (by diagnosis) each upper and lower extremity neurological disability found or shown during the pendency of the claim, and identify the likely etiology of each such disability diagnosed. Specifically, does the Veteran have an upper and/or lower extremity nerve disability which is a neurological manifestation of his service-connected type 2 diabetes mellitus? [If right upper extremity cubital tunnel syndrome is not diagnosed, reconcile such finding with its diagnosis noted in the Veteran's private treatment records (discussed above).] (b) If an upper and/or lower extremity nerve disability (including cubital tunnel syndrome) is diagnosed, but determined to not be a neurological manifestation of type 2 diabetes mellitus, is it at least as likely as not (a 50% or greater probability) that it is etiologically related to the Veteran's service, to include his confirmed exposure to herbicide agents therein? (c) If the response to (b) is No, is it at least as likely as not that a diagnosed upper or lower extremity nerve disability was caused or aggravated by (increased in severity due to) the Veteran's service-connected type 2 diabetes mellitus? [The opinion must address aggravation.] (d) If a diagnosed upper or lower extremity neurological disability is found to not be related to his service, or to have been caused or aggravated by his service-connected type 2 diabetes mellitus, identify the etiology that is considered to be more likely (and explain why that is so). (e) If service connection for hypertension is established, opine further whether it is at least as likely as not that a diagnosed upper or lower extremity nerve disability was caused or aggravated by (increased in severity due to) the hypertension? [The opinion must address aggravation.] All opinions must include rationale that cites to citing to supporting factual data and medical principles, as deemed appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.