Citation Nr: 21076188 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-00 122A DATE: December 22, 2021 ORDER Service connection for hypertension is granted. Service connection for a left trunk disability is denied. REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a throat disability, to include hypothyroidism, is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for a cardiovascular disability is remanded. Entitlement to service connection for neuropathy of the right upper extremity is remanded. Entitlement to service connection for neuropathy of the left upper extremity is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's hypertension was caused or aggravated by his diabetes mellitus. 2. The preponderance of the evidence is against finding that the Veteran's left trunk disability is etiologically related to his service or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a left trunk disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1967 to December 1970 and from July 1972 to December 1972. The Board notes that the Veteran and his attorney were notified that his substantive appeal was returned to the Board and placed on the docket in May 2021. The Veteran's representative then submitted evidence in support of the appeal, indicating to the Board that such notification was received. 1. Service connection for hypertension is granted. The Veteran contends that his hypertension was caused or aggravated by his exposure to herbicides in service or by his service-connected diabetes mellitus. The Board finds that the evidence is at least in equipoise as to the claim of entitlement to service connection for hypertension as secondary to service-connected diabetes mellitus. Significantly, the record includes two medical opinions that hold equal weight with regard to this claim. On one hand, a December 2020 VA examiner concluded that the Veteran's hypertension was not caused or aggravated by his diabetes mellitus because there was no evidence of diabetic nephropathy. The medical literature stated that absent indication of renal impairment, well-controlled hypertension was likely not caused or aggravated by diabetes mellitus. On the other hand, in October 2021, a private physician instead concluded that it was as likely as not that the Veteran's hypertension was caused or aggravated by his diabetes mellitus. The physician explained that diabetic nephropathy was not the only way in which hypertension could be linked to diabetes mellitus, explaining that the diabetic process was medically known to weaken the hypervascular system and cause hypertension. The physician cited to medical literature describing the relationship between the development of diabetes mellitus and hypertension, linking hypertension as more common in those that also suffer from diabetes mellitus. Based upon the above opinions, and a review of the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran's hypertension was caused or aggravated by his service-connected diabetes mellitus. Therefore, the claim is granted. 2. Service connection for a left trunk disability is denied. 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). In addition, a veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during that service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a)(6)(iii). For veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). The diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne 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. 38 C.F.R. § 3.307 (a)(6)(ii). 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. The Board concludes that, while the Veteran has a current diagnosis of lipoma of the left chest, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of left chest lipoma began during service or is otherwise related to an in-service injury, event, or disease. First, the Veteran's diagnosed left trunk disability, lipomas, is not listed as a presumptive disease under 38 C.F.R. § 3.309 (e), and therefore presumptive service connection is not warranted. Next, a November 2020 VA examiner conducted physical examination of the Veteran, reviewed the record, and concluded that it was less likely than not that the Veteran's lipomas of the left chest wall, the only diagnosable disability of the left trunk, were related to his service. The examiner explained that lipomas were not considered to be related to Agent Orange exposure. There was no evidence of burns or injuries in service that would cause the current lipomas. Rather, they were diagnosed only since 2016, many years following service. Lipomas were considered to be benign tumors with no particular pathology recognized. It was noted that the Veteran injured his chest wall when he fell from a horse in 1995, again, many years following service. 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). The Veteran has not provided any other medical evidence or opinion to support the contention that his left trunk disability is related to his service or to a service-connected disability. The Veteran believes his left trunk disability is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the November 2020 VA opinion. Significantly, it is not clear how the Veteran's left trunk disability is otherwise related to service or a service-connected disability. There is no indication of an injury or condition in service, there is an absence of a continuity of symptoms since service, and there is no probative medical evidence to support the claim. Given such, the Board finds that the weight of the competent and probative evidence is against the claim, and it therefore must be denied. REASONS FOR REMAND 1. Entitlement to a compensable rating for bilateral hearing loss is remanded. The Veteran contends that his hearing loss has worsened since the most recent VA examination conducted in May 2016. Considering the amount of time has passed since this examination, a remand is warranted to re-examine the Veteran's hearing loss. 2. Entitlement to service connection for COPD is remanded. In May 2016, a VA examiner determined that the Veteran's COPD was caused by his long-term tobacco use. The Veteran contends that his tobacco use was due to his service-connected acquired psychiatric disorder. Generally, service connection is precluded for any disability related to chronic tobacco use (smoking), for a claim which was received by VA after June 9, 1998. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300. However, VA's Office of General Counsel has held that neither 38 U.S.C. § 1103 (a), nor its implementing regulations at 38 C.F.R. § 3.300, bar a finding of secondary service connection for a disability related to use of tobacco products after service. VAOPGCPREC 6-2003 (October 28, 2003). The questions that adjudicators must resolve with regard to a claim for service connection for a tobacco-related disability alleged to be secondary to a disability not service-connected on the basis of being attributable to the Veteran's use of tobacco products during service are: (1) whether the service-connected disability caused the Veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. While the Veteran states an October 2019 private treatment record relates the Veteran's tobacco use disorder to his psychiatric disorder, the Board does not find such referenced opinion in the record. Thus, a VA examination and opinion is needed to determine whether the Veteran's tobacco use was caused or aggravated by his service-connected psychiatric disorder. 3. Entitlement to service connection for GERD is remanded. The Veteran has also pointed to recent VA treatment records showing that the Veteran's GERD has resolved due to his cessation of tobacco use. If the Veteran's tobacco use is considered to be related to his service-connected psychiatric disorder, then it would follow that there would need to be further consideration of whether the Veteran's GERD was also caused or aggravated by his tobacco use. Thus, this claim must also be remanded. 4. Entitlement to a throat disability, to include hypothyroidism, is remanded. The Veteran contends that his throat disability encompasses his diagnosed hypothyroidism. The Board notes that the National Academy of Sciences' (NAS) report, "Veterans and Agent Orange: Update 2014," reached the conclusion that there is "limited or suggestive" evidence of an association between exposure to Agent Orange and hypothyroidism. Considering that the Veteran is claiming that his hypothyroidism was caused by conceded herbicide exposure in service, further opinion as to his claim must be obtained. 5. Entitlement to service connection for a low back disability is remanded. 6. Entitlement to service connection for a right knee disability is remanded. 7. Entitlement to service connection for a left knee disability is remanded. 8. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. In October 2021, the Veteran submitted a private physician opinion that relates his obesity to his service-connected psychiatric disorder and service-connected diabetes mellitus. In that regard, obesity is not a disability for purposes of VA benefits; hence, it cannot be service connected on a direct basis. Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, secondary service connection can be granted with obesity acting as an "intermediate step." See VAOPGCPREC 1 2017 (Jan. 6, 2017). A grant is warranted (1) if the service-connected disability caused the Veteran to become obese; (2) if obesity was a substantial factor in causing a subsequent disability; and (3) if the subsequent disability would not have occurred but for obesity. See also Walsh v. Wilkie, No. 18-0495, slip op. at 4-5 (U.S. Vet. App. February 24, 2020) (precedential panel decision) (holding that obesity as an "intermediate step" in a causal chain for service connection can be established on either a causal or aggravation basis). A review of the October 2021 private opinion does not clearly answer the question as to whether the Veteran's service-connected psychiatric disorder and/or service-connected diabetes mellitus caused his obesity, nor does it answer the remaining above questions with clarity. Thus, when considering the record and previous opinions obtained, the Board finds that clarification is needed on remand. 9. Entitlement to a cardiovascular disability is remanded. The October 2021 private physician opinion suggests that the Veteran does suffer from coronary artery disease, ischemic heart disease, or other heart disability. The physician points to a diagnosis in the VA treatment records in November 2020 of left ventricular hypertrophy, a May 2021 CT scan showing evidence of mild atherosclerotic calcifications of his abdominal aorta, and the Veteran's report of mild angina-like pain, to support the conclusion that the Veteran does suffer from coronary artery disease or ischemic heart disease. This conclusion differs vastly from the November 2020 VA opinion that the Veteran does not suffer from coronary artery disease or ischemic heart disease. In light of this contradiction, the Board finds that clarification as to whether the Veteran suffers from these disabilities and, if so, their etiology, is necessary. 10. Entitlement to service connection for neuropathy of the right upper extremity is remanded. 11. Entitlement to service connection for neuropathy of the left upper extremity is remanded. First, the Board notes that on remand, a Supplemental Statement of the Case was not issued as to these two issues. Furthermore, as pointed out by the Veteran's representative, a VA examination should be obtained to determine whether the Veteran suffers from neuropathy of the upper extremities as secondary to his service-connected diabetes mellitus. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine his current level of bilateral hearing loss. 2. Schedule the Veteran for a VA examination to provide an opinion as to the etiology of his COPD. The examiner should review the file and provide a rationale for the following requested opinion. The examiner should answer the following: Did the Veteran's service-connected psychiatric disorder cause or aggravate his tobacco use? 3. If the answer to Directive #2 is yes, schedule the Veteran for a VA examination to provide an opinion as to the etiology of his GERD. The examiner should review the file and provide a rationale for the following requested opinion. The examiner should answer the following: Did the Veteran's tobacco use cause or aggravate his GERD? 4. Schedule the Veteran for a VA examination to provide an opinion as to the etiology of his throat disability, to include hypothyroidism. The examiner should review the file and provide a rationale for the following requested opinion. The examiner should answer the following: When taking into consideration the NAS report, "Veterans and Agent Orange: Update 2014," reaching the conclusion that there is "limited or suggestive" evidence of an association between exposure to Agent Orange and hypothyroidism, as well as the Veteran's clinical history, is the Veteran's hypothyroidism caused or aggravated by exposure to herbicides in service? 5. Schedule the Veteran for a VA examination to obtain an opinion as to the etiology of the Veteran's low back disability, left and right knee disabilities, and OSA. The examiner should review the file and provide a rationale for the following requested opinion. The examiner should answer the following: a) Did the Veteran's service-connected psychiatric disorder and or/his service-connected diabetes mellitus cause the Veteran's obesity? b) If so, has his obesity served as an "intermediary step" to the development his low back disability, right and left knee disability, and OSA? 6. Schedule the Veteran for a VA examination to obtain an opinion as to the etiology of the Veteran's contended cardiovascular disability. The examiner should review the file and provide a rationale for the following requested opinion. The examiner should answer the following: a) Does the Veteran suffer from coronary artery disease or ischemic heart disease based upon his clinical history of suffering from diabetes mellitus, a November 2020 diagnosis of left ventricular hypertrophy, a May 2021 CT Scan showing evidence of mild atherosclerotic calcifications of his abdominal aorta, and the Veteran's report of mild angina-like pain? b) If the answer to a) is no, are any of the Veteran's cardiovascular disabilities, to include LVH and mild atherosclerotic calcifications of his abdominal aorta caused or aggravated by his service-connected diabetes mellitus? (CONTINUED ON NEXT PAGE) 7. Schedule the Veteran for a VA examination to determine whether he suffers from peripheral neuropathy of the upper extremities as secondary to his service-connected diabetes mellitus. JOHN G. SETTER Acting Veterans Law Judge Board of Veterans' Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.