Citation Nr: 21069248 Decision Date: 11/18/21 Archive Date: 11/17/21 DOCKET NO. 14-31 060A DATE: November 18, 2021 ORDER Service connection for hypertension, to include as due to herbicide exposure is denied. Service connection for kidney stones is denied. REMANDED Entitlement to service connection for symptoms of bilateral upper extremity numbness and tingling, to include as due to cold injury, or secondary to service-connected disabilities is remanded. Entitlement to service connection for symptoms of bilateral lower extremity numbness and tingling, to include as due to cold injury, or secondary to service-connected disabilities is remanded. Entitlement to service connection for left hand nerve damage is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's hypertension began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's kidney stones began during active service or are otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for service connection for kidney stones are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from November 1962 to November 1964 and from January 1965 to January 1993, including service in the Republic Vietnam. He was awarded the Meritorious Service Medal and Republic of Vietnam Campaign Medal, among other decorations, for this service. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) in May 2012 and April 2013. The Veteran testified before the undersigned at a hearing held in August 2017; a transcript of that hearing is of record. In November 2020, the Board remanded the Veteran's claims for residuals from frostbite of the bilateral upper and lower extremities for further development. However, for the reasons set forth below, the VA examination reports and addenda pertaining to the claims do not constitute substantial compliance with the Board's November 2020 Remand directives; accordingly, the Veteran's service connection claims must once again be remanded for further development. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Regarding the claims for service connection for hypertension and kidney stones, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902 (2016). See 38 U.S.C. § 7107(b) (2020). 1. Service Connection for Hypertension is Denied. The Veteran contends that service connection for hypertension is warranted on a direct basis, secondary to service-connected disabilities, or in the alternative, based on in-service exposure to herbicides. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Hypertension is not on the presumptive list of diseases associated with herbicide exposure. 38 C.F.R. § 3.309(e). Under the authority granted by Congress in the Agent Orange Act of 1991 and the Veterans Education and Benefits Expansion Act of 2001, the VA Secretary has determined that a presumption of service connection is not warranted for any disease not affirmatively named in the presumptive list, including hypertension. See 77 Fed. Reg. 47,924 (Aug. 10, 2012). Based on the law, the Veteran cannot benefit from this presumption, regardless of whether he was exposed to herbicides in service. In short, hypertension is not one of the presumptive diseases for herbicide exposure and there is no presumption of service connection based on herbicide exposure for the claimed hypertension. See 38 C.F.R. § 3.309(e); see also Notice, 75 Fed. Reg. 32540-03 (2010). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection for claimed residuals of exposure to herbicides may also be established by showing that a disorder is, in fact, causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997). As an initial matter, the Board finds that the Veteran has current diagnoses of hypertension. Specifically, the June 2012 and July 2019 VA examiners diagnosed the Veteran with hypertension. Next, the Veteran served in the Republic of Vietnam during the Vietnam Era; therefore, he is presumed to have been exposed to herbicides. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Specifically, his DD214 indicates that he had foreign service in Vietnam during the Vietnam Era. The remaining question is whether there is a causal link between the Veteran's in-service herbicide exposure and his current hypertension. As previously stated, the Veteran underwent VA examinations in May 2002, May 2012, and July 2019 to determine the etiology of the current hypertension. The May 2002 VA examination focused on the diabetes mellitus. It simply concluded the Veteran was diagnosed with borderline diabetes mellitus type II controlled with diet and also diagnosed "hypertension, aggravated by not caused by borderline diabetes." The examiner provided no rationale for this opinion. The May 2012 VA examination concluded that the patient stated he had hypertension since 1978 when in service but noted there was no record of treatment in service and diabetes started approximately 5 years ago. The etiology of hypertension is multifactoral and not through diabetes which is not a cause of hypertension or risk factor. A 2017 VA diabetes mellitus examination noted that there were no recognized complications of diabetes mellitus. The July 2019 VA examination concluded the condition was less likely incurred in service and explained the DMA guidelines for a diagnosis of hypertension requiring several readings and explained that sequential studies have shown the blood pressure drops by 10-15 mmHg between the first and third visits in newly diagnosed patients and as such someone who appeared hypertensive at the initial visit may be normal. The examiner explained that proper measurement of blood pressure requires attention to time, type of measurement device, cuff size, patient position, cuff placement, technique of measurement and number of measurements. Additionally, other factors can transiently elevate blood pressure such as pain, anxiety, use of decongestants and other medications. The examiner explained that blood pressure can vary due to many factors and elevated readings are often transient in nature and that is the reason for return for blood pressure readings on separate days to confirm a diagnosis. While the Veteran had some elevated readings in service, many of them were at times he also had migraines. Other times his blood pressure was normal and he was not on medication during active service. The Veteran was diagnosed and started on medication in 1996 and as such a nexus cannot be established as there is no confirmed diagnosis of hypertension during service. The examiner further noted the Veteran had several risk factors which has likely caused his hypertension including race, agin, family history and increased weight. Concerning secondary hypertension the examiner outlined major causes of secondary hypertension including medication, drug use, renal disease, sleep apnea, aldosteronism, pheochromocytoma, cushing's syndrome, endocrine disorders and coarctation of the aorta. The examiner concluded that diabetes is not listed in medical literature as a cause of secondary hypertension and therefore the condition did not cause or aggravate the condition. In February 2021, an addendum opinion was obtained on the etiology of the Veteran's hypertension. The VA examiner opined that the hypertension was less likely than not incurred during service, caused or aggravated by service-connected disabilities, or the result of in-service exposure to herbicides. The examiner outlined the blood pressure readings during service and explained that variations in readings can occur due to multiple factors including time of day, emotional/physical stress and/or pain. While there were some elevated readings the readings during routine examinations ranged from normal to pre-hypertension. The examiner explained that the file did not show chronic and sustained elevations in blood pressure readings consistent with a diagnosis of hypertension during service. While the Veteran was diagnosed in 1995 he did not start medication until 1996. While a 1994 treatment record noted questionable hypertension the Veteran was also noted to be in acute pain during that visit and a subsequent 1995 visit and the examiner explained that blood pressure readings can be elevated due to pain. Subsequent readings when the Veteran was not in acute pain were consistent with prehypertension and as such the examiner felt a nexus was not established. The examiner also found the hypertension was not related to the diabetes as the condition predated diabetes. The examiner explained the condition was not aggravated by diabetes and explained that the file showed a diagnosis of chronic kidney disease based on creatinine levels and those levels improved after the Veteran discontinued medications. There was no nephrology within the past two years and the evidence did not support aggravation beyond natural progression as it would show hypertensive and organ damage such as chronic kidney disease. The VA examiner also indicated that recent studies found an association between high exposure to herbicides and hypertension with an accompanying citation to medical literature from the National Academies of Science. The VA examiner then indicated that other hypertension risk factors were more likely the cause of the Veteran's hypertension. After review of the multiple opinions, the Board finds the preponderance of the evidence is against the claim. Specifically, the May 2012 and July 2019 VA opinions regarding hypertension all concluded the condition was not related to service or a service connected disability. These are further supported by the February 2021 VA physician's finding that the condition is less likely than not related to service is entitled to probative weight. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Specifically, the record was reviewed, source material was referenced and explained and a rationale was provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The opinion also is supported by other evidence such as the June 2012 VA examination which plainly stated that the "[e]tiology of hypertension is multifactorial and not thorough." The evidence does not reflect service connection on a presumptive basis is warranted. The service treatment records do not reflect a diagnosis of hypertension. While several elevated blood pressure readings were noted, the 2021 examiner explained there was not a sustained chronic elevation to support a diagnosis during service. Nor was the condition diagnosed within one year after separation. Rather the record reflects the Veteran was diagnosed in 1995. Additionally, there is not continuity of symptoms as readings during service and post service fluctuate until the diagnosis but as the examiner explained were not consistent enough to support a diagnosis until 1995 and even then medication was not required until a year later. Furthermore, the preponderance of the evidence does not reflect the condition is related to or aggravated by service-connected disabilities. The Board carefully considered the 2002 VA examination, however, this examination provided no rationale for the opinion the condition was aggravated by the diabetes. As this opinion lacked any rationale or supporting evidence, and are therefore less probative in adjudicating the appeal. Black v. Brown, 5 Vet. App. 177, 180 (1993). See also, Kightly v. Brown, 6 Vet. App. 200 (1994). Again, the most probative evidence is the 2021 VA examination which provided a detailed review of the evidence and cited to specific laboratory findings to support the conclusion that the condition was not caused or aggravated by diabetes. The Board concludes that, while the Veteran has a diagnosis of hypertension the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease or a service-connected disability. As such, service connection for hypertension is not warranted. 2. Entitlement to Service Connection for Kidney Stones is Denied. The Veteran contends that service connection is warranted for kidney stones. Specifically, the Veteran contends that back pain during service may have been caused by the current kidney stones. After review of the evidence, both lay and medical, the Board finds that service connection for kidney stones is not warranted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. After review of all of the evidence, the Board concludes that, while the Veteran has a current diagnosis of kidney stones that he has attributed to in-service back pain, the preponderance of the evidence weighs against finding that the Veteran's diagnosed kidney stones began during service or are otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with kidney stones until July 2007, 14 years after his separation from service. While the Veteran is competent to report having experienced symptoms of back pain beginning in service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of kidney stones. The issue is medically complex, as it requires knowledge of the urinary systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Taken together, the June 2012 and July 2019 VA examiners' opinions establish that the Veteran's current kidney stone disability is less likely than not related to an in-service injury, event, or disease, including in-service back pain. The VA examiner opined that the Veteran's kidney stone disability was less likely related to in-service back pain. The combined rationale was that service treatment records clearly documented flank and back pain and that multiple kidney function tests that accompanied the reports were negative and specifically ruled out kidney involvement. The examiners' combined opinions are probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Specifically, the VA examiners clearly discuss kidney function testing conducted during service to rule out any urinary system involvement as a cause of in-service back pain. The Board further notes, these finding are consistent with the rest of the record because the Veteran is service connected for a back disability incurred during service, specifically manifested by back pain. Further, in a February 2021 opinion a VA physician's assistant again opined that the Veteran's kidney stone disability was less likely related to an in-service injury, event, or disease, including in-service back pain. The rationale was again that in-service testing ruled out kidney involvement as a cause of the Veteran's in-service back pain. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To be sure, the examiner has listed out the in-service reports of back pain and diagnostic testing used to rule out urinary system involvement in a clear way with accompanying dates. The Board concludes that, while the Veteran has a diagnosis of kidney stones the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease, including as manifest by inservice back pain. As such, service connection for kidney stones is not warranted. REASONS FOR REMAND 1. Peripheral Neuropathy, to Include Frostbite. 2. Left hand nerve damage 3. TDIU The Veteran contends that service connection is warranted for symptoms of numbness and tingling in the upper and lower extremities. The November 2020 Board remand requested medical opinions on the etiology of these symptoms, however, after review of the examinations and opinions an additional remand is necessary. In July 2019, the Veteran underwent a cold injury residuals examination. On examination, the VA examiner indicated nail abnormalities on both feet. The VA examiner did not indicate whether the Veteran had a current diagnosis of cold injury residuals. In February 2021, the Veteran underwent a peripheral nerves examination and reported upper extremity tingling and burning in the hands and lower extremity numbness in the feet. The VA examiner diagnosed bilateral carpal tunnel syndrome, lumbar radiculopathy, and left peroneal nerve neuropathy. The Board notes the Veteran is service-connected for a lumbar spine disability. Further, while the Veteran has claimed residuals of frostbite, under Clemons, the Board must consider the symptoms the Veteran have reported and VA examiner's have confirmed may be of an etiology other than cold injury. The Veteran as a layperson should not be expected to precisely diagnose the origins of his symptoms. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, additional remand is necessary. Finally, the Veteran's claim for entitlement to a TDIU is inextricably intertwined with the issues of entitlement to service connection for bilateral upper and lower extremity neurological disabilities. Therefore, a final decision on the issue of entitlement to a TDIU cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Associate any VA treatment records since June 2021 with the electronic claims file. 2. Schedule the Veteran for a VA examination with a NEUROLOGIST, to assess the nature and etiology of any bilateral upper and lower extremity sensory deficit, to include any residuals of cold injury. The VA examiner should review the evidence associated with the record. All necessary tests and studies should be conducted. The examiner is asked to please provide the following opinions: (a) Identify any current diagnoses of bilateral upper and lower extremities neurological disabilities, to include symptoms of pain, numbness, and tingling. (b) If the Veteran's symptoms of pain, numbness, and/or tingling in the bilateral upper and lower extremities result in a diagnosis for any peripheral nerve disability, render an opinion regarding whether it is at least as likely as not (50 percent or more probability) that any diagnosed peripheral nerve disability is related to service. (d) If the Veteran's symptoms of pain, numbness, and/or tingling in the bilateral upper and lower extremities result in a diagnosis for any peripheral nerve disability, render an opinion regarding whether it is at least as likely as not (50 percent or more probability) that any diagnosed peripheral nerve disability is caused by a service-connected disability, to include diabetes, neck pain, low back pain, and/or left epicondylitis. (e) If the Veteran's symptoms of pain, numbness, and/or tingling in the bilateral upper and lower extremities result in a diagnosis for any peripheral nerve disability, render an opinion regarding whether it is at least as likely as not (50 percent or more probability) that any diagnosed peripheral nerve disability is aggravated by service-connected disability, to include diabetes, neck pain, low back pain, and/or left epicondylitis. The examiner must provide a complete rationale for any opinion offered. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teague, 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.