Citation Nr: 21073637 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 16-02 095 DATE: December 9, 2021 ORDER 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure, is denied. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to herbicide exposure, is denied. FINDINGS OF FACT 1. The weight of competent and probative evidence does not show that the Veteran's hypertension onset was during service or was caused by any aspect of his military service. 2. The weight of competent and probative evidence does not show that the Veteran's bilateral lower extremity peripheral neuropathy onset was during service or was caused by any aspect of his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection hypertension has not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154, 5107 (2012);38C.F.R. §§3.102, 3.303, 3.304, 3.307, 3.309 (2020). 2. The criteria for entitlement to service connection for bilateral lower extremity peripheral neuropathy has not been met. 38U.S.C. §§1101, 1110, 1112, 1154, 5107 (2012);38C.F.R. §§3.102, 3.303, 3.304, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1964 to January 1985. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2017. A transcript of that proceeding has been associated with the Veteran's claims file. In September 2018 the Board remanded the appeal to the RO to provide VA examinations. In May 2020 the Board remanded the case to the RO to provide a Supplemental Statement of the Case (SSOC) to the Veteran. In September 2020 and in May 2021 the Board issued remand orders for further development. There has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). SERVICE CONNECTION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, 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). Entitlement to service connection for hypertension The Veteran contends that he has hypertension due to his military service, and specifically has cited herbicide exposure. The Veteran's service-treatment records (STRs) do not show complaint, treatment or diagnosis for hypertension in service. In a November 1984 retirement physical examination, blood pressure was 100/78 mmHg, and the Veteran denied a history of high blood pressure. Personnel records do show that he served as a radioman including service aboard a destroyer, USS Dahlgren, that anchored in the harbor at Da Nang, Republic of Vietnam in 1967. Therefore, he is presumed to have been exposed to the designated herbicide agents used in Vietnam. Furthermore, the Veteran has been granted service connection for diabetes mellitus and for cataract of the right eye, both associated with herbicide exposure. The Veteran retired from the Navy 1985 and was first diagnosed with hypertension in 2005. See December 2011 CAPRI, p. 24, see also July 2020 C&P Exam, p. 2. While the Board has previously reviewed the Veteran's claim in detail, a brief review of the claim is as follows: A claim of service connection was submitted in October 2011. In January 2013 a VA examination was provided. The VA examiner diagnosed hypertension but opined that it was less likely than not related to the Veteran's service-connected diabetes, due to the absence of renal dysfunction. See January 2013 VA Examination, p. 4. Given that the VA examiner conducted an in-person examination, reviewed the Veteran's medical records, considered his lay statements and provided a rationale based upon the record, the Board finds that this examination was adequate in determining whether the Veteran's hypertension was not secondary to his service-connected diabetes. The Veteran's claim was denied by the RO and the Veteran submitted a timely notice of disagreement (NOD) in March 2014 and a substantive appeal (VA Form 9) in January 2016. As per the Veteran's request, a hearing was provided in December 2017. There, the Veteran contended that his hypertension was caused by herbicide exposure. See December 2017 Hearing Transcript, p. 2. The claim was remanded in May 2020 for an opinion regarding direct service connection. A VA examination was provided in January 2020. The VA noted that when diagnosed in 2005, the Veteran was over age 60, had a body mass index over 40 and a family history of hypertension. The examiner addressed the findings of a 2018 Institute of Medicine study that suggested sufficient evidence of an association between hypertension and herbicide but cited another study and found that the weight and age related factors outweighed the presumed herbicide exposure. Another examiner found that the Veteran's service connected coronary artery disease did not cause or aggravate hypertension. The VA examiner opined that the Veteran's hypertension was not present during active-duty service and was not aggravated by active-duty service. This conclusion was reached based on a detailed explanation of risk factors. See January 2020 C&P Exam. Another examination was provided in July 2020. A VA examiner opined that the Veteran's hypertension was not secondary to his service-connected heart disabilities. See July 2020 C&P Exam. The Board issued another remand, having found that the aforementioned examinations were adequate on the grounds of secondary service connection, but were inadequate for determining whether the Veteran's hypertension was directly caused by herbicide exposure. See September 2020 BVA Decision. As per Board remand directives, a VA examination was provided in January 2021. In January 2021, The VA examiner first gave a positive nexus opinion, in which she stated that herbicide exposure could cause hypertension. See January 05, 2021 C&P Exam. Then, in the same month, the VA examiner negated the first nexus opinion, writing in an addendum opinion that the Veteran's hypertension was less likely than not caused by herbicide exposure, as the Veteran's onset of hypertension was not until 20 years after service. Simply citing the passage of time without further explanation is an inadequate reason. See Nieves-Rodriguez v. Peake, 22Vet. App.295, 301 (2008). The Board found this to be inadequate and issued a remand order in May 2021. An addendum opinion was provided in June 2021. The examiner noted a review of the previous opinions and continued to find that hypertension was not caused by service including exposure to herbicide. As rationale, the VA examiner cited a 20-year separation from service and diagnosis, as well as increased risk factors of age, family history, ethnicity and comorbidity from elevated BMI CAD. See January 21, 2021 C&P Exam. See June 2021 C&P Exam. A supplemental statement of the case (SSOC) was provided in September 2021 and the claim is now before the Board. In the present case, the Board the Veteran's claim must be denied on the ground that there is insufficient competent and credible evidence of a nexus between his current disability and his military service. While the Board acknowledges the Veteran's belief that his hypertension was caused by herbicide exposure in service, neither the Veteran, nor his representative, has been shown to possess the requisite medical training or expertise to provide a competent opinion regarding the etiology of his hypertension. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999). As such, the Board turns to the medical evidence of record. The Veteran's medical record does not contain any competent supportive opinions regarding the etiology of the Veteran's hypertension. To the contrary, competent and probative opinions were provided in January 2013, July 2020 and June 2021, regarding direct and secondary service connection. The Board finds these medical opinions to warrant probative weight as they were reached following review of the Veteran's medical records, consideration of his lay statements and provided rationales based upon the record. D'Aries v. Peake, 22 Vet. App. 97 (2008). As there is no contrary supportive nexus opinion of record, the claim of service connection for hypertension must be denied. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Entitlement to service connection for bilateral peripheral neuropathy The Veteran contends that he has bilateral peripheral neuropathy due to his military service, and specifically due to herbicide exposure. As above, it is presumed that the Veteran was exposed to herbicide agents used in Vietnam. A review of the Veteran's STRs do not show any complaint, treatment or diagnosis for peripheral neuropathy in service, with the first indication in the record of onset of the disease in February 2020. The Veteran complained of numbness and tingling in the toes and feet, with a private physician stating: "I suspect he has underlying peripheral neuropathy." See August 2012 Medical Treatment Record Non Government Facility, pp. 17, 19. Later in the same month, a private physician stated that "he does appear to have evidence of peripheral neuropathy." Id at 15. In June 2012 the Veteran submitted a claim for service connection and a VA examination was provided in January 2013. The VA examiner diagnosed peripheral neuropathy of the bilateral lower extremities. See January 2013 C&P Exam, p. 5. The VA examiner provided a negative nexus opinion, but as the opinion lacked a rationale the Board has found the opinion to hold diminished probative value. The Veteran's claim was denied, and the Veteran appealed. In May 2020 the Board issued a remand order, given that the Veteran's claim of service connection for diabetes had been granted. As per Board remand directives, a VA examination was provided in January 2020. The VA examiner provided opinions regarding early onset herbicide exposure and secondary service connection. In making these opinions, the VA examiner provided the rationales that the Veteran's peripheral neuropathy had delayed onset and lacked chronicity of symptoms, as well as there being no risk factors or contribution between the Veteran's service-connected conditions and his current peripheral neuropathy. The examiner determined that a vitamin B1 deficiency was clinically the most likely cause of the neuropathy. See January 2020 C&P Exam. As the examiner did not address late onset herbicide exposure, the Board issued a remand order in September 2020 for an addendum opinion. As per Board remand directives, a disability benefits questionnaire (DBQ) and addendum opinion were provided in January 2021. The VA examiner provided a negative nexus opinion. The Board found this opinion to be inadequate, as the VA examiner simply cited the passage of time without further explanation. As such, a remand was ordered in May 2021. An addendum opinion was then provided in June 2021. There, the VA examiner initially wrote that peripheral neuropathy is a presumptive disease of herbicide exposure, but then clarified in September 2021 that the Veteran's "associated complications of delayed peripheral neuropathy to bilateral lower extremities is not related to herbicide exposure as his claimed bilateral peripheral neuropathy is only plausible if it is an early onset condition per U.S. Department of Veteran's Affairs. The U.S. Dept of Veterans Affairs states that peripheral neuropathy can be associated with herbicide exposure if the condition is early onset, however, vet has late or delayed onset of peripheral neuropathy occurring twenty-five years after separation from service. Therefore, vet's peripheral neuropathy is less likely than not related to herbicide exposure; A nexus has not been established." See September 2021 C&P Exam. An SSOC was then provided in September 2021 and the claim is now before the Board. In the present case, the Veteran has been diagnosed with bilateral peripheral neuropathy during the appellate period, and as such the first element of service connection has been met. Furthermore, the Veteran has identified herbicide exposure as a potential cause of his condition. Given that the Veteran is presumed exposed to herbicides in service, this meets the criteria for the second element of service connection. Therefore, the Board turns to the third element of service connection, a nexus between his current disability and his military service. While the Board acknowledges the Veteran's belief that his peripheral neuropathy was caused by herbicide exposure in service, neither the Veteran, nor his representative, has been shown to possess the requisite medical training or expertise to provide a competent opinion regarding the etiology of his peripheral neuropathy. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999). The Veteran's medical record does not contain any competent supportive nexus opinions regarding the etiology of the Veteran's peripheral neuropathy. To the contrary, probative negative nexus opinions have been provided regarding direct and secondary service connection in January 2020 and September 2021, which together have considered both early and late onset peripheral neuropathy. The Board finds these medical opinions to be probative as they were reached following review of the Veteran's medical records, consideration of his lay statements and the examiners provided rationales based upon the record. D'Aries v. Peake, 22 Vet. App. 97 (2008). The Board interprets the examiner's rationale as not based on the whether a presumption applies but rather on information from VA obtained from studies that attribute only early onset neuropathy as a cause by herbicide exposure. Given that the Board has found these negative nexus opinions to have probative value, and as there is no competing positive nexus opinion of record, the claim of service connection for peripheral neuropathy must be denied. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, Associate 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.