Citation Nr: 21067207 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-37 051 DATE: November 3, 2021 ORDER Entitlement to a breathing disability (respiratory disability), to include as secondary to herbicide exposure is denied. Entitlement to service connection for high blood pressure (hypertension), to include as secondary to herbicide exposure is granted. REMANDED Entitlement to service connection for peripheral neuropathy (PN), to include as secondary to herbicide exposure and as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's respiratory disability did not have its onset in service or is otherwise shown to be related to military service, to include herbicide exposure. 2. The Veteran's hypertension is etiologically related to his in-service herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to a breathing condition, to include as secondary to herbicide exposure have not been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for high blood pressure, to include as due to secondary to herbicide exposure have been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the U.S. Army from June 1966 to November 1968. This case comes before the Board of Veteran's Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In April 2019, the Board remanded this matter for additional development, which has been completed. See Stegall v. West, 11 Vet. App. 268 (1998). With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Service connection may also be established based on herbicide exposure. 38 C.F.R. § 3.307 (a)(6). For VA purposes, an "herbicide agent" includes the chemicals 2,4D; 2,4,5T and its contaminant TCCD; cacodylic acid; and picloram. 38 C.F.R. § 3.307 (a)(6)(i). For the purposes of determining herbicide exposure, a Veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307 (a)(6)(iii). If the Veteran is presumed to have been exposed to herbicides, the Veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309 (e). This presumption is specifically limited to those diseases listed. Id. Service personnel records document that the Veteran served in the Republic of Vietnam from May 1967 to May 1968. Therefore, his exposure to herbicide agents is established. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (2018). Moreover, the United States Court of Appeals for Veterans Claims (CAVC) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Respiratory Disability The Veteran contends that his respiratory disability was related to his exposure to herbicide agents and his military service. The Board notes that the Veteran's diagnosed respiratory disability (chronic obstructive pulmonary disease) is not amongst the list of diseases that are presumed related to herbicide agent exposure under 38 C.F.R. § 3.309(e). As such, presumptive service connection based on herbicide agent exposure is not warranted. Service connection on a direct, factual basis is still available. The Veteran's service treatment records (STRs) were silent for any treatment or diagnosis of a respiratory disability. Notably, his November 1968 separation examination documented a normal clinical evaluation. Post-service treatment records demonstrated that he was not diagnosed with a respiratory disability until 2010 (42 years after service). As such, the record contains no diagnosis of a chronic respiratory disability in service and the Veteran's disability is not considered a chronic disease, which would preclude service connection based on continuity of symptomology or on any presumptive basis. In February 2020, the Veteran was afforded a VA examination. The Veteran was diagnosed with chronic obstructive pulmonary disease (COPD). He reported that his lung disease had been slowly progressive. He noted that he had shortness of breath when running or doing heavy lifting approximately 10 years prior. He reported that he smoked 2 packs per day since he was 21 or 22 years old. The examiner opined that the Veteran's claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. She noted that her medical opinion was based on the history, physical, and review of all available medical records in VBMS and CPRS. She explained that he was diagnosed with COPD/ emphysema and this was confirmed by FEV1/FVC 55 percent (moderate airway obstruction) on his spirometry/PFTs. She noted that he did not have any chronic or ongoing respiratory conditions or disabilities during his service. She indicated that the Veteran's COPD/emphysema was related to his smoking history. She noted that according to the medical literature, cigarette smoking was the predominant cause of and most important risk factor for COPD. She concluded that the medical literature suggested that the Veteran's COPD was due to his 75 pack per year history of smoking which began after his service. She noted that there was no evidence that herbicide agents caused COPD. She explained that a study was published in 2018 that looked at COPD in Army Chemical Corps, Veterans who sprayed defoliant in Vietnam; the Veteran's duties as a laundryman and shower specialist did not involve spraying . The study showed an association (but not causation) between herbicide exposure history and self-reported physician-diagnosed COPD. However, when looking at COPD diagnosis confirmed by airflow obstruction on spirometry (as with this Veteran), no association was found. Therefore, it was less likely than not that the Veteran's COPD was caused or etiologically related to his active-duty service or related to or otherwise attributable to his presumed herbicide exposure in Vietnam. After weighing all the evidence, the Board finds great probative value in the February 2020 VA examiner's opinion. The February 2020 opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). Consideration has been given to the Veteran's personal assertion that his respiratory disability is due to herbicide agent exposure and active military service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of a respiratory disability (and more specifically whether it is the result of exposure to herbicide agents), falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Here, the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to whether his disability is caused by herbicide agent exposure or his military service. As such, the criteria for service connection for a respiratory disability have not been met, and the Veteran's claim is denied. Hypertension (HTN) The Veteran contends that his HTN is related to his established exposure to herbicide agents and his military service. Alternatively, he contends that his HTN was caused or aggravated by his service-connected posttraumatic stress disorder (PTSD). VA treatment records documented that the Veteran was diagnosed with HTN. Thus, the only remaining question is that of a nexus. VA laws and regulations provide that if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation, which does not include hypertension. Turning to consideration of the claim on a direct basis, in November 2018 the National Academies of Sciences, Engineering, and Medicine moved hypertension to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category, indicating that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and exposure to herbicides, including Agent Orange. The Board is charged with knowledge of this study and conclusion. Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021). Based on this new finding, the Board finds that there is sufficient scientific evidence to etiologically link the Veteran's HTN to his presumed exposure to herbicides while serving in Vietnam. The Board notes that there is a February 2020 VA negative nexus opinion and a February 2021 private positive nexus opinion based on secondary service connection. Given, the Veteran is granted service connection with the evidence discussed above, the Board will not discuss the February 2020 VA opinion or February 2021 private opinion. Further, any further discussion or development on the question of secondary service connection is unnecessary, and there is no prejudice to the Veteran in the Board limiting its discussion to direct service connection. REASONS FOR REMAND Peripheral Neuropathy The Veteran contends that his peripheral neuropathy disability was related to his exposure to herbicide agents and his military service. Alternatively, he contends that his peripheral neuropathy was caused or aggravated by his service-connected PTSD. A 2017 VA examiner specified that the Veteran's substance abuse was not likely related to the service-connected PTSD. In February 2020, the Veteran was afforded a VA examination. The examiner opined that the Veteran's PN was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. She noted that her medical opinion was based on the history, physical, and review of all available records in CPRS, and VBMS. She explained that his EMG did not show definitive evidence of neuropathy, but he was clinically diagnosed with PN thought to be caused by his history of heavy alcohol abuse, case of beer per day, per neurology. She also noted that the Veteran had low to normal vitamin B12 level and elevated homocysteine and methylmalonic acid levels. His primary care and neurology decided to treat him with vitamin B12 injections as this was thought to be a possible contributor to his neuropathy. She explained that the medical literature noted that alcohol abuse and B12 deficiency were common causes of neuropathy. She concluded that it was less likely than not that the Veteran's PN was caused or etiologically related to his active duty service or his presumed herbicide exposure. She indicated that his PN was most likely due to his years of alcohol abuse and B12 deficiency as documented in his neurology, primary care, and pain consult records. On February 2021 private opinion, Dr. SE provided a medical opinion linking the Veteran's PN to alcohol abuse precipitated by his service-connected PTSD. Dr. SE wrote that he agreed with the February 2020 VA examiner that it was at least as likely was not that the Veteran's alcohol abuse had caused and permanently aggravated his PN. Dr. SE noted that after review of the medical records, research on the subjects, and his medical experience, it was his opinion that it was at least as likely as not that the Veteran's alcohol abuse was secondary to his service-connected PTSD. Furthermore, his alcohol abuse caused and permanently aggravated his PN. VA treatment records and VA examination reports documented separate diagnoses of alcohol abuse disorder and PTSD; only PTSD has been service-connected. However, the record suggests that his alcohol abuse could be a symptom of his PTSD. Furthermore, the record (February 2020 VA examination report and February 2021 private opinion) suggest that the Veteran's alcohol abuse caused and aggravated his PN. As such, the Board finds that the current evidence is insufficient to adequately decide this claim. Accordingly, remand is warranted for another VA examination addressing whether his alcohol abuse disorder is a symptom of his PTSD. TDIU The Board defers a decision on the TDIU claim as inextricably intertwined with the pending service connection claim and evaluation of HTN. Consequently, the Veteran's claim for TDIU requires re-adjudication. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records and associate with the claims file. 2. Schedule the Veteran for a VA PTSD examination. The claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether it is at least as likely as not that the Veteran's alcohol abuse disorder was caused or aggravated by his service-connected PTSD, to include whether such represents self-medication. The examiner must discuss the February 2021 private opinion. A full and complete rationale is required for all opinions expressed. 3. Then, and following implementation of the above grant of service connection for HTN, readjudicate the claims on appeal, to include entitlement to TDIU. If any benefits sought on appeal remain denied, issue a supplemental statement of the case and allow an appropriate period of time for response before returning the matter to the Board. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.