Citation Nr: 21070346 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-19 643A DATE: November 23, 2021 ORDER Service connection for hypertension is granted. Service connection for hypothyroidism is granted. REMANDED Entitlement to service connection for a skin disorder is remanded. Entitlement to a a total disability rating based on individual unemployability (TDIU), for the period prior to February 17, 2017, is remanded. FINDING OF FACT 1. The Veteran's hypertension had its onset during service. 2. The Veteran served in the Republic of Vietnam is diagnosed with hypothyroidism that is compensably disabling. CONCLUSION OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for hypothyroidism have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from February 1970 to September 1971, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2015 and May 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office. The March 2015 RO decision determined that new and material evidence had not been received to reopen a claim for entitlement to service connection for a skin disorder (listed as atopic dermatitis). By this decision, the RO also denied service connection for hypertension; hypothyroidism; and for tinnitus. The RO further denied entitlement to a TDIU. The May 2017 RO decision granted a TDIU, effective February 17, 2017. The Board notes that an August 2017 statement of the case lists an issue of entitlement to an effective date earlier than February 17, 2017, for the award of a TDIU. The Veteran appealed that listed issue. The Board notes, however, that once entitlement to a TDIU is put in issue as part of a claim for a higher initial rating/increased rating, a Veteran does not need appeal the effective date assigned for the grant of a TDIU for the issue to remain in appellate status. Thus, when the RO grants a TDIU that does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period is still on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Consequently, the issue before the Board is entitlement to a TDIU, for the period prior to February 17, 2017. A July 2018 Board decision reopened and remanded the issue of entitlement to service connection for a skin disorder, for further development. The Board also remanded the issues of entitlement to service connection for hypertension; hypothyroidism; and for tinnitus, as well as the issue of entitlement to a TDIU, for the period prior to February 17, 2017 for further development. In August 2020, the Board remanded the issues of entitlement to service connection for a skin disorder; hypertension; hypothyroidism; and for tinnitus, as well as the issue of entitlement to TDIU, for the period prior to February 17, 2017 for further development. A September 2021 RO decision granted service connection and a 10 percent rating for tinnitus, effective June 23, 2014. Therefore, the issue of entitlement to service connection for tinnitus is no longer before the Board. 1. Hypertension Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). 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). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310 (2015); see also Allen v. Brown, 7 Vet. App. 439 (1995). A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service incurrence for the following diseases will be presumed if they are manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, and trachea), and soft-tissue sarcomas. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Effective August 31, 2010, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), is included as a disease associated with herbicide exposure under 38 C.F.R. § 3.309 (e). (Under 38 C.F.R. § 3.309 (e), the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease. 38 C.F.R. § 3.309 (e) (Note 3.). On January 1, 2021, the National Defense Authorization Act for Fiscal Year 2021 has added three disorders to the list of diseases presumptively associated with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116(a)(2), to include parkinsonism, bladder cancer and hypothyroidism. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). In November 2018, the National Academy of Sciences upgraded hypertension to the "sufficient" category from "limited or suggestive," indicating that there was enough epidemiologic evidence to conclude that there was a positive association between hypertension and herbicide exposure. See Veterans and Agent Orange: Update 11 (2018), http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137 An article in the November 2016 Journal of Occupational and Environmental Medicine entitled Herbicide Exposure, Vietnam Service, and Hypertension Risk in Army Chemical Corps Veterans suggests that herbicide exposure history and Vietnam service status were significantly associated with hypertension risk. See https://www.publichealth.va.gov/epidemiology/studies/vietnam-army-chemical-corps.asp. Additionally, a VA study indicates a possible link between a psychiatric disorder (specifically PTSD), and heart disease. See http://www.research.va.gov/currents/spring2015/spring2015-8.cfm. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) 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). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Service connection is in effect for posttraumatic stress disorder (PTSD), diabetes mellitus, with erectile dysfunction; diabetic neuropathy of the right upper extremity; diabetic neuropathy of the left upper extremity; diabetic neuropathy of the right lower extremity; diabetic neuropathy of the left lower extremity; hemorrhoids; a scar of the right knee; bilateral hearing loss; and for tinnitus. The Veteran contends that he has hypertension that is related to service, to include as due to Agent Orange exposure. The Veteran served on active duty in the Army from February 1970 to September 1971, including service in the Republic of Vietnam. The Veteran served in the Republic of Vietnam. Therefore, his exposure to Agent Orange is conceded. The Veteran's service treatment records do not show treatment for hypertension or for elevated blood pressure readings. Post-service private and VA treatment records, including a VA examination report, show treatment for hypertension on multiple occasions. The Board notes that although exposure to Agent Orange is conceded due to the Veteran's service in Vietnam, his claimed hypertension is not among the diseases listed as presumptively associated with Agent Orange exposure. Thus, the Veteran is not entitled to service connection on a presumptive basis. 38 C.F.R. § 3.309(e). The Veteran may, nonetheless, establish service connection if the evidence shows that his claimed hypertension was, in fact, caused by exposure to Agent Orange or some other incident of service. See Combee v. Brown, 34 F.3d at 1039 (Fed. Cir. 1994). The Board notes, as discussed above, that, in November 2018, the National Academy of Sciences upgraded hypertension to the "sufficient" category from "limited or suggestive," indicating that there was enough epidemiologic evidence to conclude that there was a positive association between hypertension and herbicide exposure. Additionally, an article in the November 2016 Journal of Occupational and Environmental Medicine entitled Herbicide Exposure, Vietnam Service, and Hypertension Risk in Army Chemical Corps Veterans suggests that herbicide exposure history and Vietnam service status were significantly associated with hypertension risk. The Board further notes that a VA study indicates a possible link between a psychiatric disorder (specifically PTSD), and heart disease. The Board observes, however, that, currently, hypertension is not among the disease listed as presumptively associated with Agent Orange. The Board notes that the evidence of record includes opinions, as to the etiology of the Veteran's claimed hypertension, pursuant to a June 2014 statement from C. M. Q., M.D.; a September 2019 VA hypertension examination report; and an August 2020 VA hypertension examination report. An August 2020 VA hypertension examination report includes a notation that the Veteran's claims file was reviewed. The diagnosis was hypertension. The examiner indicated that the claimed condition was as likely as not (50 percent or greater probability) incurred in, or caused by, the claimed in-service injury, event, or illness. The examiner referred several medical treatises. The examiner indicated that based on those findings, it was reasonable to conclude that the Veteran's claimed hypertension was at least as likely as not related to the previous exposure to herbicide agents during his military service in Vietnam. The Board observes that the Veteran is currently diagnosed with hypertension. The examiner, pursuant to an August 2020 VA hypertension examination report, following a review of the claims file, specifically indicated that it was reasonable to conclude that the Veteran's claimed hypertension was at least as likely as not related to the previous exposure to herbicide agents (Agent Orange) during his military service in Vietnam. The Board finds that the opinion provided by the examiner, pursuant to the August 2020 VA hypertension examination report, is the most probative evidence of record. In light of the very probative opinion by the examiner, pursuant to the August 2020 VA examination report, the Board cannot conclude that the preponderance of the evidence is against granting service connection for hypertension. Thus, service connection for hypertension is warranted. 2. Hypothyroidism Service connection is in effect for posttraumatic stress disorder (PTSD) for diabetes mellitus, with erectile dysfunction; diabetic neuropathy of the right upper extremity; diabetic neuropathy of the left upper extremity; diabetic neuropathy of the right lower extremity; diabetic neuropathy of the left lower extremity; hemorrhoids; a scar of the right knee; bilateral hearing loss; and for tinnitus. As discussed above, he is also now service-connected for hypertension. The Veteran contends that he has hypothyroidism that is related to service, to include as due to Agent Orange exposure. The Veteran served on active duty in the Army from February 1970 to September 1971, including service in the Republic of Vietnam. The Veteran served in the Republic of Vietnam. Therefore, his exposure to Agent Orange is conceded. The Veteran's service treatment records do not show treatment for hypothyroidism or for any thyroid disorders. Post-service private and VA treatment records, including a VA examination report, show treatment for hypothyroidism on multiple occasions. The evidence shows that the Veteran has current diagnoses of hypothyroidism. In light of the above, the inquiry shifts to whether the Veteran's hypothyroidism has manifest to a compensable degree. See 38 C.F.R. § 3.307(a)(6)(ii). In the present case, the Board finds that the Veteran's hypothyroidism became manifest to a compensable degree. Accordingly, after resolving any doubt in favor of the Veteran, the Board finds that his current hypothyroidism is related to his military service as a presumptive condition associated with herbicide (Agent Orange) exposure during his period of service. See 38 C.F.R. §§ 3.307, 3.309(e). REASONS FOR REMAND The remaining issues on appeal are entitlement to service connection for a skin disorder and entitlement to a TDIU, for the period prior to February 17, 2017. As discussed above, the Board has granted service connection for hypertension and for hyperthyroidism. Given this change in circumstances, and to accord the Veteran due process, the RO should readjudicate the issue of entitlement to service connection for a skin disorder and entitlement to a TDIU, for the period prior to February 17, 2017. This case was remanded in August 2020, partly to obtain VA medical opinions as to the etiology of the Veteran's claimed skin disorder. The examiner was to indicate whether it was at least as likely as not (a 50 percent or better probability) that the Veteran's claimed skin disorder was caused by, or related to, his service, including his established in-service exposure to herbicide agents. The August 2020 Board remand specifically indicated that the Veteran's exposure to herbicide agents had been established by the record, and that the examiner must provide a detailed explanation, of the medical opinion provided, and could not base the opinion solely on the fact that the VA did not recognize a presumptive relationship between the Veteran's specific condition and his past exposure to herbicide agents. The Board directed that the opinion and associated rationale needed to address the likelihood that this Veteran's claimed skin disorder was related to herbicide agent exposure, given his individual medical history, family history, risk factors, etc. Pursuant to the August 2020 Board remand, an opinion was provided by a VA examiner in August 2020, as to the etiology of the Veteran's claimed skin disorder. There is a notation that the examiner reviewed the Veteran's claims file. The examiner indicated that the claimed condition was less likely than not (less than 50 percent probability) incurred in, or caused by, the claimed in-service injury, event, or illness. The examiner reported that there was no evidence of diagnoses of, or complaints of, dermatitis or skin conditions, in the service treatment records. The examiner stated that dermatitis was not under the presumptive conditions of exposure to herbicides (Agent Orange) during service. The examiner maintained that the Veteran's dermatitis was diagnosed over forty-five years after his discharge, which was the basis of his opinion that it was less likely than not caused by, or a result of, herbicide exposure (Agent Orange), or related to active military service. The Board observes that the examiner indicated that there was no evidence of diagnoses of, or complaints of, dermatitis or skin conditions, in the service treatment records. The Board observes, however, that the Veteran's service treatment records indicate that he was treated for skin problems, including a monilial infection of the groin; a small abscess of the lumbosacral spine region; a growth below the skin in the pelvic region, which was described as a small lymph node in the left groin; and for a wart on the right knee. Therefore, the Board notes that is unclear if the examiner reviewed the Veteran's entire claims file. In light of the above, the Board finds that the Veteran must be afforded a VA examination, with the opportunity to obtain responsive etiological opinions, following a thorough review of the entire claims file, as to his claim for service connection for a skin disorder. Such an examination must be accomplished on remand. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, as the Veteran's claim for entitlement to a TDIU, for the period prior to February 17, 2017, is inextricably intertwined with his claim for service connection, those matters must be addressed together on remand. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Ask the Veteran to identify all medical providers who have treated him for skin problems since September 2021. After receiving this information and any necessary releases, obtain copies of the related medical records which are not already in the claims folder. Document any unsuccessful efforts to obtain the records, inform the Veteran of such, and advise him that he may obtain and submit those records himself. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptoms regarding his claimed skin disorder. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible), to determine the onset and etiology of his claimed skin disorder. The entire claims file must be reviewed by the examiner. The examiner must diagnose all current skin disorders. The examiner must opine as to whether it is at least as likely as not that any currently diagnosed skin disorders, are related to, and/or had their onset during, the Veteran's period of service, to include his presumed exposure to Agent Orange during service. The examiner must also specifically acknowledge and discuss the Veteran's treatment for skin disorders during service, and any reports by the Veteran of skin problems during or since service. The examiner must further opine as to whether the Veteran's service-connected disabilities caused or aggravated any currently diagnosed skin disorders. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. D. Regan, 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.