Citation Nr: 21074718 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-29 530 DATE: December 16, 2021 ORDER Service connection for hypertension is granted. REMANDED Entitlement to service connection for a stroke is remanded. Entitlement to service connection for a brain tumor, also claimed as meningioma, is remanded. Entitlement to service connection for bilateral leg muscle weakness, also claimed as bilateral peripheral neuropathy, is remanded. Entitlement to service connection for dizziness is remanded. THE VETERAN'S CONTENTIONS The Veteran contends that his high blood pressure, brain tumor, and stroke are related to Agent Orange exposure in service. See June 2015 application; November 2015 notice of disagreement (NOD); June 2019 Informal Hearing Presentation (IHP). He stated that his primary job in Vietnam was to clear the jungles in order to lay airstrips. See November 2015 NOD. In regard to his hypertension, the Veteran contended that the January 2020 VA examination showed a positive medical opinion for hypertension and accordingly, service connection should be granted. See August 2021 IHP. In regard to his stroke, he stated that the stroke may be a result of high blood pressure and the cause of his dizziness and weakness in his legs. See May 2015 statement in support of claim; August 2021 IHP. The Veteran argues that the medical opinion regarding his meningioma was inadequate as the examiner based the negative opinion on the condition not being on the presumptive list. See August 2021 IHP. He contended that the weakness in his legs, also claimed as bilateral peripheral neuropathy, may also be caused by his brain tumor and/or borderline diabetes. See May 2015 statement in support of claim; November 2015 NOD; June 2019 IHP; August 2021 IHP. He also asserted that his dizziness is secondary to his hypertension. See August 2021 IHP. FINDING OF FACT The Veteran's hypertension is related to his in-service exposure to Agent Orange. CONCLUSION OF LAW The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 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 May 1966 to May 1968. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded by the Board in October 2019. 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). The Board presumes exposure to herbicide agents as the Veteran served in Vietnam. If a Veteran was exposed to herbicide agents during active service, presumptive service connection is warranted for certain specified diseases. 38 C.F.R. §§ 3.307, 3.309. The current list of diseases subject to presumptive service connection under 38 C.F.R. § 3.309(e) does not include hypertension. 38 C.F.R. § 3.309(e), Note (2). Therefore, service connection is not warranted due to herbicide exposure under 38 C.F.R. § 3.309(e). However, the unavailability of presumptive service connection for a disability based on exposure to herbicide agents does not preclude a Veteran from establishing service connection with proof of direct causation, or on any other recognized basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran has a diagnosis of hypertension. See January 2020 VA Disability Benefits Questionnaire (DBQ). The January 2020 VA examiner determined that the Veteran's hypertension was at least as likely as not incurred in or caused by his claimed in-service event. Specifically, the examiner stated that it was reasonable to link the Veteran's hypertension to his herbicide exposure. He noted that the Institute of Medicine affirmatively linked hypertension to herbicide agents and that a 2018 article from the National Academies of Sciences, Engineering, and Medicine journal also supported that hypertension was common in veterans with herbicide exposure. In light of the January 2020 positive nexus opinion, the Board finds that service connection for hypertension is warranted. REASONS FOR REMAND 1. Stroke As an initial matter, the Board notes that the October 2019 Board remand directed the Board to ask the Veteran to complete a VA Form 21-4142 for physicians F.R., E.U., and M.N. and to provide either a release for, or a copy of, the EMG report cited as "see EMG report" in the September 2018 Disability Benefits Questionnaire. In a December 2019 letter, the RO requested this information from the Veteran, and no response was received. The VA's duty to assist is not a one-way street, and a Veteran cannot wait for assistance when he has information essential to the adjudication of his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). On remand, the Board will again request that the Veteran complete an updated authorization to obtain these records. The current list of diseases subject to presumptive service connection under 38 C.F.R. § 3.309(e) does not include a stroke. However, as noted above, the unavailability of presumptive service connection for a disability based on exposure to herbicide agents does not preclude a Veteran from establishing service connection with proof of direct causation, or on any other recognized basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A September 2018 Disability Benefits Questionnaires (DBQ) shows a diagnosis of stroke diagnosed in June 2015. A January 2020 DBQ shows diagnoses of lacunar infarct diagnosed in May 2015. The January 2020 examiner determined that the Veteran's stroke was less likely than not related to his hypertension. However, the examiner did not address the Veteran's contention that his stroke is related to herbicide exposure during service. Accordingly, a VA medical opinion is warranted to determine whether the Veteran's stroke is related to his presumed herbicide exposure in service. 2. Brain tumor, also claimed as meningioma September 2018 and January 2020 Disability Benefits Questionnaires (DBQs) show a diagnosis of meningioma with a date of diagnosis in June 2015 and May 2015, respectively. Pursuant to the October 2019 Board remand directives, a medical opinion was requested to determine whether it is at least as likely as not that the Veteran's meningioma is due to his active service, to include consideration of whether it is a result of exposure to herbicide agents in service. The January 2020 examiner provided a negative nexus opinion. In his rationale, he stated that the "2018 meningioma is not considered to be due to herbicide exposure" and that the condition was not diagnosed while the member was in service as supported by his normal separation physical. The Veteran contends that the medical opinion regarding meningioma is inadequate as the examiner based the negative opinion on the condition not being on the presumptive list. See August 2021 IHP. The Board agrees that this medical opinion is insufficient for adjudication purposes as the examiner incorrectly noted that the meningioma was diagnosed in 2018, rather than 2015, and did not adequately support his determination that it is not due to herbicide exposure. The Board acknowledges that the current list of diseases subject to presumptive service connection under 38 C.F.R. § 3.309(e) does not include a brain tumor diagnosed as meningioma. However, as noted above, the unavailability of presumptive service connection for a disability based on exposure to herbicide agents does not preclude a Veteran from establishing service connection with proof of direct causation, or on any other recognized basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As such, a VA opinion is warranted to determine if the Veteran's brain tumor, also claimed as meningioma, is related to herbicide exposure during service. 3. Bilateral leg muscle weakness, also claimed as bilateral peripheral neuropathy The list of diseases associated with exposure to these herbicide agents includes early onset peripheral neuropathy. 38 C.F.R. § 3.309(e). Pursuant to 38 C.F.R. § 3.307(a)(6)(ii), in order for the presumption of service connection to apply, early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. Further, service connection may be granted where a disability is proximately due to or aggravated by an already service-connected disability. See 38 C.F.R. § 3.310. To establish secondary service connection for a disability there must be (1) a current disability (for which secondary service connection is sought); (2) an existing service-connected disability; and (3) evidence that the current disability for which service connection is sought was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In a February 2020 Disability Benefits Questionnaire (DBQ), Dr. N.G. noted that the Veteran experienced bilateral lower extremity pain and weakness since 2014. The September 2018 and January 2020 DBQs show diagnoses of peripheral neuropathy with a June 2015 date of diagnosis. In a February 2020 DBQ, Dr. B.A. provided a negative nexus opinion regarding the relationship between the Veteran's bilateral leg weakness or bilateral lower extremity neuropathic pain and his service. He also determined that it was less likely than not due to "pre-diabetes". In another February 2020 DBQ, Dr. N.G. found that the current medical evidence was not sufficient to determine if the Veteran's current peripheral neuropathy was aggravated beyond its normal progression as a baseline could not be determined. She explained that, without a baseline level of peripheral neuropathy, she could not opine if the condition was aggravated due to the Veteran's service-connected cancers and their treatment. The Board finds this opinion to be insufficient for adjudication purposes. Service connection is in effect for the Veteran's recurrent prostate cancer and metastatic bone cancer associated with recurrent prostate cancer. A VA opinion is warranted to determine if the Veteran's bilateral leg muscle weakness, also claimed as bilateral peripheral neuropathy was caused or aggravated by his recurrent prostate cancer and metastatic bone cancer associated with recurrent prostate cancer, to include treatment for these conditions. 4. Dizziness The service treatment records show dizzy spells in April 1967 and March 1968. Further, the January 2020 VA examiner determined that the Veteran's dizziness if related to a diagnosis of benign paroxysmal positional vertigo (BPPV) and that vertigo is clinically related to an inner ear disorder versus a circulatory or cardiovascular condition. Service connection is in effect for the Veteran's bilateral hearing loss and tinnitus. In light of this evidence, the Board finds that a VA medical opinion is warranted to determine whether the Veteran's dizziness is directly related to his service, to include his dizziness during service; and whether it is caused or aggravated by his service-connected bilateral hearing loss and/or tinnitus. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for physicians F.R., E.U., and M.N. Make two requests for the authorized records from these physicians, unless it is clear after the first request that a second request would be futile. 2. Request that the Veteran or his representative provide either a release for, or a copy of, the EMG report cited as "see EMG report" in the September 2018 Disability Benefits Questionnaire. 3. Forward the Veteran's claims file to an appropriate VA clinician to provide a medical opinion regarding the nature and etiology of the Veteran's stroke. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided. Thereafter, the clinician should state whether it is at least as likely as not (50 percent probability or more) that the Veteran's stroke had its onset in, was caused by, or is otherwise related to the Veteran's service, to specifically include exposure to herbicides during service. The Board notes that exposure to herbicide agents in service is presumed as the Veteran served in Vietnam. In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician should provide a complete rationale for any opinion rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. 4. Forward the Veteran's claims file to an appropriate VA clinician to provide a medical opinion regarding the nature and etiology of the Veteran's brain tumor, also claimed as meningioma. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided. Thereafter, the clinician should state whether it is at least as likely as not (50 percent probability or more) that the brain tumor, also claimed as meningioma, had its onset in, was caused by, or is otherwise related to the Veteran's service, to specifically include exposure to herbicides during service. The Board notes that exposure to herbicide agents in service is presumed as the Veteran served in Vietnam. In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician should provide a complete rationale for any opinion rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. 5. Forward the Veteran's claims file to an appropriate VA clinician to provide a medical opinion regarding the nature and etiology of the Veteran's bilateral leg muscle weakness, also claimed as bilateral peripheral neuropathy. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided. Thereafter, the clinician should address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the bilateral leg muscle weakness, also claimed as bilateral peripheral neuropathy, had its onset in, was caused by, or is otherwise related to the Veteran's service. (b.) Please state whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that not that the Veteran's bilateral leg muscle weakness, also claimed as bilateral peripheral neuropathy, was caused by the Veteran's service-connected recurrent prostate cancer and metastatic bone cancer associated with recurrent prostate cancer. (c.) Please state whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that not that the Veteran's bilateral leg muscle weakness, also claimed as bilateral peripheral neuropathy, was aggravated by the Veteran's service-connected recurrent prostate cancer and metastatic bone cancer associated with recurrent prostate cancer. In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician should provide a complete rationale for any opinion rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. 6. Forward the Veteran's claims file to an appropriate VA clinician to provide a medical opinion regarding the nature and etiology of the Veteran's dizziness. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided. Thereafter, the clinician should address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the dizziness had its onset in, was caused by, or is otherwise related to service. The examiner should acknowledge the service treatment records show dizzy spells in April 1967 and March 1968. (b.) Please state whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that not that the Veteran's dizziness was caused by the Veteran's service-connected bilateral hearing loss and/or tinnitus. (c.) Please state whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that not that the Veteran's dizziness was aggravated by the Veteran's service-connected bilateral hearing loss and/or tinnitus. In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician should provide a complete rationale for any opinion rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.