Citation Nr: 21066416 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-17 986 DATE: October 29, 2021 ORDER Service connection for peripheral neuropathy of bilateral upper extremities is granted. Service connection for peripheral neuropathy of bilateral lower extremities is granted. Service connection for residuals of stroke is granted. Service connection for scars, back of leg and feet, is denied. REMANDED Entitlement to service connection for seizures is remanded. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam from November 1966 to November 1967. 2. The Veteran's bilateral upper extremity peripheral neuropathy was incurred during active service. 3. The Veteran's bilateral lower extremity peripheral neuropathy was incurred during active service. 4. The Veteran's service-connected hypertension proximately caused his stroke. 5. The Veteran did not have a skin disorder, to include scars on the back of leg and feet, at any time since filing of his service-connection claim in June 2012. CONCLUSIONS OF LAW 1. The Veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.307. 2. The criteria for service connection for bilateral upper extremity peripheral neuropathy are met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.303, 3.307. 3. The criteria for service connection for bilateral lower extremity peripheral neuropathy are met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.303, 3.307. 4. The criteria for service connection for residuals of a stroke are met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. § 3.310. 5. The criteria for service connection for scars, back of leg and feet, are not met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.303, 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to March 1969. He died on October [REDACTED], 2014. The appellant is the surviving spouse and has been accepted as a substitute claimant for purposes of processing the claim pursuant to 38 U.S.C. § 5121A. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision. In November 6, 2014, the appellant filed VA Form 21-601, Application for Accrued Amounts Due a Deceased Beneficiary. In July 2016, she filed VA Form 21-534EZ, Application for Dependency and Indemnity Compensation (DIC), Death Pension, and/or Accrued Benefits. A rating decision of June 2021 determined that the Veteran's service-connected hypertension materially contributed to the cause of death, and service connection for cause of death was granted. In February 2019, the appellant testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Board remanded this matter in May 2019 and May 2021. Service Connection Service connection will be granted for a current disability that results from an injury or disease incurred in, or aggravated by, active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). The claimant will be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Certain chronic diseases will be presumed to be related to service if they were shown as chronic in service or manifested to a compensable degree within a presumptive period following separation from service. For such diseases, a continuity of symptomatology since service is also a means of establishing service connection. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). Even though there is no record of the disease during service, certain diseases are presumed to be service-connected, if a veteran was exposed to an herbicide agent during active military, naval, or air service and the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Notwithstanding any evidentiary presumption relating to service connection, a claimant may establish service connection for a disability based upon adequate evidence of actual causation. 38 U.S.C. § 1113(b); see also Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection may be granted on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. Any increase in severity of a non-service-connected disease or injury that is proximately due to, or the result of, a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. 38 C.F.R. § 3.310; see also Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. Entitlement to service connection for bilateral upper peripheral neuropathy and for bilateral lower peripheral neuropathy was denied by a rating decision of October 2013. The record indicates that the Veteran served in the Republic of Vietnam from November 1966 to November 1967. Accordingly, exposure to an herbicide agent is presumed. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran was not diagnosed with early-onset peripheral neuropathy, a listed disease for which service connection may be presumed based on herbicide exposure. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). According to an April 2014 Agent Orange Peripheral Neuropathy Review Check List, signed by Dr. R. T., a VA doctor, there is no evidence of early onset peripheral neuropathy during the Veteran's Vietnam service or within one year of service separation. This determination was made based on a review of the claims folder, including the service treatment records. The appellant subsequently testified before the Board in February 2019 that the Veteran complained of pain in his legs from the time he returned from Vietnam and that, at some later point, he complained of problems with his upper extremities. In March 2019, Dr. C. S. filed a statement relating that she had treated the Veteran for bilateral upper and lower extremity neuropathy from 2011 to 2012 and had prescribed gabapentin for it. In her opinion, his peripheral neuropathy was "more likely than not to be related to exposure to herbicides in Vietnam." Her rationale was that the Veteran served in Vietnam for a year and was in an area where Agent Orange/herbicides were sprayed. She also explained that the Veteran did not have diabetes that required medication. In July 2016 and March 2019, Dr. R. F. filed statements asserting that the Veteran's peripheral neuropathy of the upper and lower extremities was at least as likely as not due to his exposure to Agent Orange. In this case, two private medical opinions state that in-service exposure to an herbicide agent caused the Veteran's bilateral upper and lower extremity radiculopathy. The clinicians did not relate the Veteran's peripheral neuropathy merely to unspecified "service" but rather to a specific injury during service, herbicide exposure. Dr. C. S. further explained her reasoning that consideration was given to diabetic peripheral neuropathy. The Board determines that the positive nexus opinions of record, while not expansive, are adequate. Physicians may be presumed to remain up-to-date on medical knowledge and current medical studies. See Monzingo v. Shinseki, 26 Vet. App. 97, 106-07 (2012). Evidence that tends to weigh against the claims is an August 2021 medical opinion of K. C., a nurse practitioner. She stated that it is less likely than not that the veteran has peripheral neuropathy related to an in-service injury or disease, to include presumed exposure to an herbicide agent in the Republic of Vietnam. The stated rationale was that there is no documentation of electromyography (EMG) or other testing for peripheral neuropathy of the upper and lower extremities, and that the Veteran had no formal diagnosis of peripheral neuropathy of record. The VA opinion failed to acknowledge that peripheral neuropathy was diagnosed by Drs. C. S. and R. F. and that the VA treatment records note ongoing treatment for neuropathy with prescribed gabapentin. A medical opinion based on an inaccurate history has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board is also permitted to take into account that the training of the doctors who provided positive nexus opinions in this case is more advanced than that of the VA clinician. See Cox v. Nicholson, 20 Vet. App. 563, 568-69 (2007). For these reasons, the Board assigns less weight to the negative opinion of the VA clinician than to the positive evidence of record. With the three elements of Shedden having been met, service connection will be granted. 3. Entitlement to service connection for residuals of stroke. In March 2012, the Veteran filed service connection claims for seizures and for a stroke. A rating decision of October 2013 combined the two issues and denied service connection for "seizures also claimed as strokes." A rating decision of May 2021 granted service connection for hypertension. A June 2011 record of Dr. R. F. notes that the Veteran had strokes in 2000 and 2008. Positive nexus opinions of record identify the Veteran's hypertension as the cause of his strokes. Specifically, a May 2015 letter of Dr. C. M. states that the Veteran had been his established patient until 2010 and that, in the doctor's opinion, it is highly likely that the Veteran's stroke was "linked to his hypertension." Furthermore, in the opinion of Dr. E. A., as stated in a January 2021 letter, the Veteran's stroke/cerebrovascular accidents were caused or aggravated by the hypertension for which the Veteran is service- connected. It was noted that the Veteran had hypertension, that he was diagnosed with an abdominal aortic aneurysm in August 2005, and that he was diagnosed as having had multiple cerebrovascular accidents, commonly called a stroke, in approximately July 2000. The rationale cited supporting medical journal articles and the consideration that hypertension is a significant factor in the development of a stroke. Physicians may be presumed to remain up-to-date on medical knowledge and current medical studies. See Monzingo v. Shinseki, 26 Vet. App. 97, 106-07 (2012). Evidence that tends to weigh against the claim is the negative VA opinion of August 2021. In the opinion of the VA nurse practitioner, it is less likely than not that the Veteran's stroke residuals were secondary to his hypertension. The stated rationale was that a private treatment record of February 2002 indicated that the stroke "was caused by small hemorrhages not hypertension," and that there was no documentation of an "aggravation or natural progression of the residual." The Board's May 2021 remand called for an addendum opinion from a medical professional with appropriate expertise regarding seizure disorders or strokes, including residuals. Nothing in the record indicates that the VA nurse practitioner who authored the August 2021 nexus opinion has such expertise. Even if there may not have been substantial compliance with the Board's remand in this respect, there is no prejudice to the Veteran in granting service connection upon the current evidence of record. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, the Board gives less weight to the negative VA opinion than to the positive, private opinion of Dr. E. A. for the following reasons. The VA clinician incorrectly cited the February 2002 record, which noted only that the stroke was associated with a small hemorrhage and did not find that the stroke was not associated with hypertension. Furthermore, the VA clinician's opinion, as stated, appears to rest entirely on the supposed fact that she could not locate a positive opinion of another medical professional or existing "documentation" of aggravation. In this sense, the clinician's opinion appears to be the result of a mere records review and not an independent analysis in which principles and methods are reliably applied to the facts of record. See Nieves-Rodriguez v. Peak, 22 Vet. App. 295, 302 (2008). The Board also notes that the training of Dr. E. A., who provided a positive nexus opinion with a rationale, is more advanced than that of the VA clinician. See Cox v. Nicholson, 20 Vet. App. 563, 568-69 (2007). 4. Entitlement to service connection for scars, back of leg and feet. A rating decision of October 2013 denied service connection for scars, back of leg and feet. The appellant competently testified before the Board as to her observation of the Veteran's sores and scars on his body and his legs. In addition, in a statement of April 2013, she referred to a rash and to red spots on his arms, legs, back, chest, and stomach continuously since his return from service in Vietnam. No scar or skin symptoms are noted in the service treatment records. The Veteran was found to be normal with respect to skin and scars for the February 1969 separation examination, and he denied any past or current skin diseases at that time. The VA treatment records indicate normal dermatological findings overall. Upon physical examination in July 2010, the notation was "no rashes." In December 2010, the Veteran's skin was found to have a normal color, with a specific finding of no patches on the skin. A VA treatment record of November 2011 notes foot symptoms of "onychomycosis, open skin lesion between the great toe and 2nd digit (bilaterally)." Subsequent treatment records do not indicate a fungal infection or other skin disorder. A June 2019 VA medical opinion states that the Veteran's reported skin condition is less likely than not related to his military service, herbicide exposure, or service- connected right hand condition. The stated rationale was that the Veteran had no documented, chronic skin conditions that would be related to his time in service or his presumed Agent Orange exposure, and no documentation of "a chronic skin issue of symptomatic lower extremity scars related to his time in service or his service-connected right hand condition." It was further noted that the lay statements of chronic skin issues are unsubstantiated by objective evidence of skin complaints, evaluation, diagnosis, or treatment in the Veteran's service, private, or government records. The claim filed by the Veteran in June 2012 referred to "scars on my foot and back of my legs." The claim includes any disorder that may reasonably be encompassed by the description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran and the appellant, as laypersons, are competent to report observed or experienced skin symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, the Board concludes that those assertions are not credible when weighed against other evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 512 (1995). The lack of contemporaneous medical records is a fact that the Board can consider and weigh against lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (2006). Furthermore, the Veteran was found to have normal skin upon examination at a time when the appellant asserts that the Veteran's skin was not normal. The record indicates that the Veteran served in the Republic of Vietnam from November 1966 to November 1967. Accordingly, exposure to an herbicide agent is presumed. 38 C.F.R. § 3.307(a)(6)(iii). Service connection can be presumed with regard to certain disorders if a veteran was exposed to an herbicide agent during active service in certain circumstances. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). The skin symptoms reported by the Veteran and his wife are not a competent diagnosis of any listed disorder warranting presumptive service connection under 38 C.F.R. § 3.309(e). To the extent that it is asserted that the Veteran had a skin disorder that is medically related to his service, the Board finds that the Veteran and the appellant, as laypersons, are not competent to associate a skin disorder with a disease or injury of service, including as due to herbicide exposure. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). There is no competent evidence of record that a skin disorder of the Veteran was caused by a disease or injury of service, to include his exposure to an herbicide agent, or was caused or aggravated by a service-connected disability. Service connection presupposes a current disability. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303; see also Degmetich v. Brown, 104 F. 3d 1328 (1997). A preponderance of the evidence is against finding that the Veteran had a skin disorder at any time since his service-connection claim was filed in June 2012. Therefore, the claim must be denied on the basis of a lack of a current disorder. REASONS FOR REMAND 5. Entitlement to service connection for seizures. In March 2012, the Veteran filed service connection claims for seizures and for a stroke. A rating decision of October 2013 combined the two issues and denied service connection for "seizures also claimed as strokes." A December 2008 record of Dr. C. P. and an October 2002 record of Dr. C. M. document "new onset seizures" and "history of seizure disorder," respectively. The appellant testified before the Board that the Veteran had had seizures before his stroke in 2000, that he was placed on seizure medication, and that he had several seizures. A rating decision of May 2021 granted service connection for hypertension. An August 2021 VA medical opinion authored by a nurse practitioner determined that it is less likely than not that the Veteran's seizure disorder was caused by his hypertension. The rationale consisted of a definition of epilepsy and the statement that "there is no physiological correlation with seizure disorder and hypertension." A remand is required under Stegall v. West, 11 Vet. App. 268, 271 (1998). The August 2021 report did not include an opinion as to the likelihood that the Veteran's hypertension aggravated his seizures, as called for in the Board's May 2021 remand. A finding such as "not due to," "not caused by," or "not related to" a service-connected disability is insufficient to address the question of aggravation under § 3.310(b). See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). In addition, a VA notation of August 2021 indicates that a VA disability benefits questionnaire request was cancelled by Medical Administration Services (MAS) in June 2021 and that an examination was requested at a different location. The entry for "Cancel Comment" was, "C & P no longer have a Neurologist. Please re- reroute to contractor." It does not appear from the record that a medical opinion by a contracting neurologist was subsequently obtained by the agency of original jurisdiction (AOJ). The Board's May 2021 remand required that an addendum medical opinion be prepared by a medical professional with appropriate expertise concerning seizure disorders or strokes, including residuals. Nothing in the record indicates that the VA nurse practitioner who provided August 2021 nexus opinion had such expertise. Moreover, a VA medical opinion is needed as to the likelihood of causation or aggravation of the Veteran's seizure disorder by his service-connected residuals of stroke. As explained above, today's Board decision will grant service connection for residuals of a stroke. In an appellate brief of September 2021, the Veteran cites medical journal articles for the proposition that cerebrovascular disease is known to cause seizures. Competent medical evidence may be statements conveying sound medical principles found in medical treatises. It may also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). A medical article or treatise can provide important support when combined with an opinion of a medical professional. See Mattern v. West, 12 Vet. App. 222, 228 (1999). The Board will remand for a VA nexus opinion that considers the journal references cited by the Veteran with respect to the likelihood that the Veteran's seizures were caused or aggravated by his service- connected residuals of stroke, and whether the seizures were themselves a residual of the Veteran's service-connected stroke disability. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. The matter is REMANDED for the following action: 1. Undertake appropriate development to associate with the record any outstanding VA treatment records and any outstanding and identified private medical records that are pertinent to the remanded issue. All efforts to obtain the records should be documented in the electronic claims folder. 2. Obtain an opinion from a medical professional with appropriate expertise concerning seizure disorders or strokes, including residuals. The clinician must determine the nature and etiology of any seizure disorder of the Veteran and must opine as to whether any such disorder at least as likely as not a. Was caused by an in-service injury, disease, or event, to include the Veteran's exposure to an herbicide agent during Vietnam service; b. Had its inception during service; c. Manifested during active service or within one year after discharge from service; d. Was noted during service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service; e. Is a residual of a stroke(s) suffered by the Veteran; or f. Is proximately due to, or aggravated beyond its natural progression by, a service- connected disability, to include hypertension and/or residuals of stroke. In explaining the reasons for an opinion as to the likelihood of any relationship, including aggravation, between any seizure disorder and the Veteran's herbicide exposure, service-connected hypertension, and/or service- connected residuals of stroke, the clinician must give specific consideration to medical literature provided or cited by the Veteran or appellant in the record in support of the claim. Notify the clinician that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it would be as medically sound to find in favor of such a conclusion as to find against it. Notify the clinician that the Veteran and appellant, as laypersons, are competent to attest to matters based on personal knowledge, not medical expertise, as they come to a person through his or her senses, including observable symptoms. (Continued on the next page) If the clinician cannot provide an opinion without resorting to mere speculation, he or she shall explain why an opinion cannot be offered. In so doing, the clinician shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven D. Najarian, 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.